Climate Governance in the Arctic
ENVIRONMENT & POLICY VOLUME
50
For further volumes: http://www.springer.com/series/5921
Climate Governance in the Arctic Edited by
Timo Koivurova Northern Institute for Environmental and Minority Law/Arctic Centre, University of Lapland, Rovaniemi, Finland
E. Carina H. Keskitalo Ume˚a University, Department of Social and Economic Geography, Ume˚a, Sweden and
Nigel Bankes Faculty of Law, University of Calgary, AB Canada
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Editors Timo Koivurova Northern Institute for Environmental and Minority Law/Arctic Centre University of Lapland Rovaniemi Finland
[email protected] E. Carina H. Keskitalo Ume˚a University Department of Social and Economic Geography Ume˚a Sweden
[email protected] Nigel Bankes Faculty of Law University of Calgary, AB Canada
[email protected] ISBN 978-1-4020-9541-2
e-ISBN 978-1-4020-9542-9
DOI 10.1007/978-1-4020-9542-9 Library of Congress Control Number: 2008940441 c Springer Science+Business Media B.V. 2009 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. c 2008 JupiterImages Corporation Cover image: Printed on acid-free paper 9 8 7 6 5 4 3 2 1 springer.com
Preface and Acknowledgements
This book is a product of a research project that began in 2006. The research group consisted of an inter-disciplinary group of scholars from numerous countries aiming to examine how various governance mechanisms contributed to mitigation and adaptation to climate change in the Arctic. The original name of the project was “The Capability of International Governance Systems in the Arctic to Contribute to the mitigation of Climate Change and Adjust to its Consequences” (CIGSAC, project No. 8110564), which later was changed to “Climate Governance in the Arctic” (see the project’s website at http://www.arcticcentre.org/?deptid=25873). The project was funded by the Academy of Finland, and we want to express our gratitude for the Academy’s financial support. The research project benefitted greatly from the two seminars that were organised during its life-cycle. The launch meeting of the project was in Pyh¨atunturi Finland from August 30 to September 3, 2006, where the initial research topics were discussed and their viability and desirable future focus examined. The final meeting (9th and 10th of January 2008 Arctic Centre, Rovaniemi, Finland) concentrated on fine-tuning the individual contributions and developing a similar general framework for the different contributions. We would like to express our sincere thanks to all the contributors for making an honest attempt to follow this framework. We would also like to thank the contributors for participating in these two meetings; we think it was a learning experience for all since our different expertise informed a critical but constructive discussion. Apart from valuable suggestions for improving the quality of the individual chapters, the meetings also provided important guidance for the introductory and concluding chapters of the book. Important roles in assisting us in the editing process were played especially by researcher Adam Stepien from the Northern Institute for Environmental and Minority Law (Arctic Centre, University of Lapland), and, at the final stages, researcher Henna Tervo, also from NIEM. Thank you for all the hard work! Many of the authors have also made an effort to follow developments in some cases up to spring 2008 when the contributions for this book were due: this holds true especially for legal developments surrounding the Arctic marine environment. We hope that this book will open up new horizons for thinking about climate governance issues from an Arctic viewpoint. We also hope that this book may help inspire v
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Preface and Acknowledgements
those persons involved in the various governance mechanisms that have implications in the Arctic to find new ways of viewing the climate policies of their respective institutions, and thereby contributing to climate policy mainstreaming in general. We would also like to thank our families: the book added much work to the normal workload, requiring many extra evenings behind the computer. Thanks for being so patient and interested! Rovaniemi, Finland Ume˚a, Sweden Alberta, Canada
Timo Koivurova E. Carina H. Keskitalo Nigel Bankes
Contents
1 Climate Governance in the Arctic: Introduction and Theoretical Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E. Carina H. Keskitalo, Timo Koivurova and Nigel Bankes
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Part I Climate Change in the Arctic 2 The Climate Change Regime and the Arctic Region . . . . . . . . . . . . . . . . 27 Meinhard Doelle 3 The Climate Policy of the Arctic Council . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Timo Koivurova and Md. Waliul Hasanat 4 A Changing Arctic Climate: Science and Policy in the Arctic Climate Impact Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Annika E. Nilsson 5 “New Governance” in the Arctic and Its Role for Supporting Climate Change Adaptation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 E. Carina H. Keskitalo Part II Looking Outwards 6 Should the Law Governing Maritime Areas in the Arctic Adapt to Changing Climatic Circumstances? . . . . . . . . . . 119 Erik Franckx 7 Climate Change and Arctic Fisheries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 Erik J. Molenaar 8 World Heritage Convention, Climate Change and the Arctic . . . . . . . . 171 Lotta Viikari vii
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9 Rethinking the Status of Indigenous Peoples in International Environmental Decision-Making: Pondering the Role of Arctic Indigenous Peoples and the Challenge of Climate Change . . . . . . . . . . . 207 Leena Hein¨am¨aki 10 The Potential of the Convention on Biological Diversity to Address the Effects of Climate Change in the Arctic . . . . . . . . . . . . . . . . . . . . . . . . 263 Thilo Marauhn Part III Looking Inwards 11 Is Adaptation Governable in the Arctic? National and Regional Approaches to Arctic Adaptation Governance . . . . . . . . . . . . . . . . . . . . . 289 Monica Tennberg 12 Mitigation Possibilities in the Energy Sector – An Arctic Perspective . 303 Maria Pettersson 13 Climate Change Policy in the Arctic: The Cases of Greenland and Nunavut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Natalia Loukacheva 14 Climate Change and the Regime for the Conservation of Polar Bears . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Nigel Bankes 15 Subjective Environmentalism: The Barents Euro-Arctic Council and Its Climate Change Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 S.G. Sreejith 16 Climate Change and the Future of Arctic Governance: A Slushy Seascape and Hard Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403 David L. VanderZwaag 17 Conclusions on Climate Governance in the Arctic . . . . . . . . . . . . . . . . . . 429 E. Carina H. Keskitalo, Timo Koivurova and Nigel Bankes Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Contributors
Nigel Bankes The University of Calgary, 2500 University Dr NW, Calgary, Alberta, T2N 1N4, Canada,
[email protected] Meinhard Doelle Marine & Environmental Law Institute, Dalhousie Law School, Halifax, Nova Scotia, Canada, B3H 4H9,
[email protected] Erik Franckx Department of International and European Law, Vrije Universiteit Brussel Pleinlaan 2, B-1050 Brussels, Belgium,
[email protected] Md. Waliul Hasanat The Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Finland; Lapin yliopisto, Arktinen Keskus, PL 122, 96101, Rovaniemi, Finland,
[email protected] Leena Hein¨am¨aki Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Finland; Lapin yliopisto, Arktinen Keskus, PL 122, 96101 Rovaniemi, Finland,
[email protected] E. Carina H. Keskitalo Political Science, Department of Social and Economic Geography, Ume˚a University, 901 87 Ume˚a, Sweden,
[email protected] Timo Koivurova The Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Lapin yliopisto, Arktinen Keskus, PL 122, 96101, Rovaniemi, Finland,
[email protected] Natalia Loukacheva Polar Law Program, University of Akureyri, Iceland; Munk Centre for International Studies, University of Toronto, Toronto,
[email protected] Thilo Marauhn Justus Liebig University Giessen, Licher Str 76, 35394 Giessen, Germany,
[email protected] ix
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Contributors
Erik J. Molenaar Utrecht University, NILOS, Achter Sint Pieter 200, 3512HT Utrecht, The Netherlands,
[email protected] Annika E. Nilsson Stockholm Environment Institute, Kr¨aftriket 2B, SE 106 91 Stockholm, Sweden,
[email protected] Maria Pettersson Lule˚a University of Technology, SE-971 87 Lule˚a, Sweden,
[email protected] S.G. Sreejith Northern Institute for Environmental and Minority Law, University of Lapland, Arctic Centre, PL 122, 96101 Rovaniemi, Finland,
[email protected] Monica Tennberg Arctic Centre, University of Lapland, 96101 Rovaniemi, Finland,
[email protected] David L. VanderZwaag Canada Research Chair in Ocean Law and Governance; Marine & Environmental Law Institute, Dalhousie Law School, 6061 University Avenue, Halifax, NS B3H 4H9, Canada,
[email protected] Lotta Viikari Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, 96101 Rovaniemi, Finland,
[email protected] Abbreviations
AAU AC ACAP ACIA ACPB AEPS AEWA AF AHDR AHTEG AMAP AMSA AMSP BEAC BEAR CAFF CARMA CBD CBMP CCL CCPR CCS CDM CER CERD CESCR CITES CMS CoP/COP
Assigned amount unit Arctic Council Arctic Council Action Plan to Eliminate Pollution in the Arctic Arctic Climate Impact Assessment Agreement on the Conservation of Polar Bears Arctic Environmental Protection Strategy African-Eurasian Waterbird Agreement Adaptation Fund Arctic Human Development Report Ad hoc Technical Expert Group on Biological Diversity and Climate Change Arctic Monitoring and Assessment Programme Arctic Marine Shipping Assessment Arctic Marine Strategic Plan Barents Euro-Arctic Council Barents Euro-Arctic Region Conservation of Arctic Flora and Fauna CircumArctic Ragnifer Monitoring and Assessment Network Convention on Biological Diversity Circumpolar Biodiversity Monitoring Program Combined cycle technology International Covenant on Civil and Political Rights Carbon capture and storage Clean Development Mechanism Certified emission reduction International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights Convention on International Trade in Endangered Species of Wild Fauna and Flora Convention on Migratory Species Conference of Parties
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CSIPN CSLF CSS DG RELEX DoE/DOE EAF EC ECOSOC EEA EEZ EFTA EIA EIT EPPR ERU ESA ESC ET EU EU ETS EWG FAO FCCC FLC FSTF FWS GHG GHR GN GRID GSO GWEC HRC IACHR IAEA IASC ICC ICCAT ICES ICOMOS IDGEC IEA ILO IMO
Abbreviations
Center for Support of Indigenous Peoples of the North Carbon Sequestration Leadership Forum “Critical security studies” Directorate-General for External Relations (EU Commission) Department of Energy Ecosystem approach to fisheries European Community Economic and Social Council (UN) European Economic Area Exclusive economic zone European Free Trade Association Environmental impact assessment Economies in Transition Emergency Prevention, Preparedness and Response Emission reduction unit Endangered Species Act “Extended security concept” Emissions Trading European Union European Union Emission Trading System Working Group on Energy United Nations Food and Agriculture Organization see UNFCCC Fort Lauderdale Criteria Forest Sector Task Force see US FWS Greenhouse gas Greenland Home Rule Government of Nunavut Global Resources Information Database Group of Senior Officials (BEAR) Global Wind Energy Council Human Rights Committee Inter-American Commission on Human Rights International Atomic Energy Agency International Arctic Science Committee Inuit Circumpolar Conference, from 2006 Inuit Circumpolar Council International Commission on the Conservation of Atlantic Tunas International Council for the Exploration of the Sea International Council on Monuments and Sites “Institutional Dimensions of Global Environmental Change” International Energy Agency International Labour Organisation International Maritime Organisation
Abbreviations
IPCC IPG IPHC IPOA IPY IQ IR ITK IUCN JI JLG LDCF LME LNG LOS LULUCF MARPOL MEA MoP/MOP MoU/MOU MSY NAFO NAP NAPA NASCO NBSAP NEAFC NLCA NPAFC NPFMC NTI OPEC PAME PBSG PICES POPs PPM RAIPON RC RFMO RMU RPA
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Intergovernmental Panel on Climate Change Institution of public government International Pacific Halibut Commission International Plan of Action International Polar Year Inuit Qaujimajatuqangit (Inuit traditional knowledge) International Relations Inuit Tapiriit Kanatami World Conservation Union Joint Implementation Joint Liaison Group Least Developed Countries Fund Large maritime ecosystems Liquefied Natural Gas Law of the sea, see also UNCLOS Land-use, land-use change and forestry International Convention for the Prevention of Pollution from Ships Multilateral environmental agreement Meeting of Parties Memorandum of understanding Maximum sustainable yield Northwest Atlantic Fisheries Organization National Action Programme National Adaptation Programme of Action North Atlantic Salmon Conservation Organization National Biodiversity Strategy and Action Plan North East Atlantic Fisheries Commission Nunavut Land Claims Agreement North Pacific Anadromous Fish Commission North Pacific Fishery Management Council Nunavut Tunngavik Incorporated Organisation of Petroleum Exporting Countries Protection of Arctic Marine Environment Polar Bear Specialists Group North Pacific Marine Science Organization Persistent organic pollutants Parts per million Russian Association of Indigenous Peoples of the North, Siberia and Far East Regional Committee (BEAR) Regional fisheries management organization Removal unit Regional Programme of Action for the Protection of the Arctic Environment from Land-based Activities
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R&D SAAO SAO SBSTTA SCCF SDWG SPCAR UN UNCCD UNCED UNCLOS UN ECE UNEP UNESCO UNFCCC UNGA UNPFII US US FWS USGS VACCA WCMC WCPFC WEAR WGIP WG WGE WGEC WHC WHIPCOE WMO WWF
Abbreviations
Research and development Senior Arctic Affairs Officials Senior Arctic Officials Subsidiary Body on Scientific, Technical and Technological Advice Special Climate Change Fund Sustainable Development Working Group Standing Committee of Parliamentarians of the Arctic Region United Nations United Nations Convention to Combat Desertification United Nations Conference on Environment and Development United Nations Convention on the Law of the Sea United Nations Economic Commission for Europe United Nations Environmental Programme United Nations Education, Scientific and Cultural Organisation United Nations Framework Conventions on Climate Change United Nations General Assembly United Nations Permanent Forum on Indigenous Issues United States United States Fish and Wildlife Service United States Geological Survey Vulnerability and Adaptation to Climate Change in the Arctic World Conservation Monitoring Centre Western and Central Pacific Ocean Fisheries Commission Working Group on education and research Working Group on Indigenous Populations Working group Working Group on Environment Working Group on Economic Cooperation World Cultural and Natural Heritage Convention World Heritage Indigenous Peoples Council of Experts World Meteorological Organization World Wide Fund for Nature
Author Biographies
Timo Koivurova, Research Professor, is a Director of the Northern Institute for Environmental and Minority Law, Arctic Centre/University of Lapland. He is also an Adjunct Professor of International Law, Faculty of Law, Economics and Business Administration/University of Joensuu and Adjunct Professor of International Law, Faculty of Law/University of Turku. Professor Koivurova has specialised in various aspects of international law applicable in the Arctic and Antarctic region. In 2001, Koivurova defended his doctoral dissertation in the University of Lapland on the topic of environmental impact assessment (EIA) as it applies in the Arctic. Increasingly, his research work addresses the interplay between different levels of environmental law, legal status of indigenous peoples, law of the sea in the Arctic waters, the role of law in mitigating/adapting to climate change and the function and role of the Arctic Council in view of its future challenges. He has been involved as an expert in several international processes globally and in the Arctic region and is a research leader in-charge in many EU and Finnish Academy funded projects that are related to his fields of expertise. He is also the co-editor in chief of the newly launched scientific publication called Polar Law Yearbook. E. Carina H. Keskitalo is Associate Professor of Political Science at the Department of Social and Economic Geography, Ume˚a University, Sweden. She gained her PhD in International Relations at the University of Lapland, Rovaniemi, Finland, with a study of the construction of the Arctic as an international region. Keskitalo is currently working on adaptation to climate change and globalisation in northernmost Europe and the EU, and has among other things published on adaptation to climate change in renewable resource sectors in northern Norway, Sweden, Finland and north-west Russia. Nigel Bankes is a Professor of Law at the University of Calgary where he has taught since 1984 and where he currently holds the chair in natural resources law. He was seconded to Canada’s Department of Foreign Affairs and International Trade as Professor in Residence for the 1999–2000 academic year. His principal research interests are in the areas of indigenous peoples law, water law, oil and gas law and international environmental law. He was the lead author of the “Legal Systems” chapter of the Arctic Human Development Report (2004) for the Arctic Council. xv
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He served as the chair of the Canadian Arctic Resources Committee a Canadian NGO during the mid-1990s. He is the editor of the Journal of Energy and Natural Resources Law. Meinhard Doelle, Associate Professor, specialises in environmental law. He is the Associate Director of the Marine & Environmental Law Institute and the Director of the Marine & Environmental Law Programme. From 1996 to 2001, he was the Executive Director of Clean Nova Scotia. He has been involved in the practice of environmental law in Nova Scotia since 1990 and in that capacity served as drafter of the NS Environment Act. He currently is environmental counsel to the Atlantic Canada law firm of Stewart McKelvey. From 2000 to 2006, he was a non-governmental member of the Canadian delegation to the UN climate change negotiations. From January to May 2008, he was a visiting scholar at the Environmental Law Centre of the IUCN in Bonn, Germany. Professor Doelle has written on a variety of environmental law topics, including climate change, energy law, invasive species, environmental assessments, and public participation in environmental decision-making. His most recent books are entitled “The Federal Environmental Assessment Process, a Guide and Critique”, “From Hot Air to Action: Climate Change, Compliance and the Future of International Environmental Law”, and “The Canadian Environmental Protection Act & Commentary”. Erik Franckx, Professor, Licentiaat in de Rechten (Vrije Universiteit Brussel), MA in East European Studies (Brussels/Ghent/Leuven), LL.M. (University of Georgia), Ph.D. (Vrije Universiteit Brussel). Professor Franckx is Director of the Department of International and European Law at the Vrije Universiteit Brussel (V.U.B.), and has moreover teaching assignments (in chronological order) at the Vesalius College (V.U.B.),Universit´e Libre de Bruxelles, the Brussels School of International Studies (University of Kent at Canterbury), the Program on International Legal Cooperation (Institute of European Studies, V.U.B.), and the Universit´e Paris-Sorbonne Abu Dhabi. His research focuses on international law in general, and law of the sea in particular. He has been appointed by Belgium as a member of the Permanent Court of Arbitration, The Hague, The Netherlands, He has also been appointed by Belgium as an expert in marine scientific research for special arbitrations under the 1982 United Nations Convention on the Law of the Sea. He represents Belgium in the Advisory Body of Experts on the Law of the Sea within the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization (UNESCO). He has served as a consultant to governments (foreign as well as the three levels of the Belgian structure, i.e. the federal, regional and community level), international, supra-national and non-governmental organisations. Md. Waliul Hasanat, Master of Laws, is an Assistant Professor of Law at the University of Rajshahi, Bangladesh (on leave), where he has been teaching since 1996. Presently, he is a researcher in the Northern Institute for Environmental and Minority Law (NIEM) at the Arctic Centre, University of Lapland, Finland. He is
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pursuing there his doctoral study in public international law. He has also a research position in ARKTIS graduate school coordinated by Arctic Centre, University of Lapland. His main research interests are soft-law cooperation, climate change in the Arctic, the Arctic Council, and the protection of minorities. Leena Hein¨am¨aki is a researcher in the Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland. The main focus of her research is the rights of indigenous peoples in human rights law and in international environmental law. Her principal research interest is Arctic indigenous peoples in relation to participation and environmental issues. Natalia Loukacheva is an assistant professor of law and director of the Polar law program at the University of Akureyri (Iceland) and a research associate at the Munk Centre for International Studies, University of Toronto (Canada). She obtained her Diploma in Jurisprudence (Cum Laude) and her Ph.D. degree from the Urals State Law Academy, Yekaterinburg, the Russian Federation and her Doctor of Juridical Science degree (S.J.D.) from the University of Toronto. She specialises in public law and has research interests in the Arctic. Natalia Loukacheva holds numerous academic awards and has been engaged in different initiatives that deal with legal issues in the Arctic. She is the author of The Arctic Promise: Legal and Political Autonomy of Greenland and Nunavut, University of Toronto Press, 2007 and has several publications on the issues of governance in the North and legal challenges in the Arctic. Thilo Marauhn is a Professor of Public Law, International and European Law at the University of Gießen, Germany, and holds a Permanent Visiting Professorship of Constitutional Theory at the University of Lucerne, Switzerland. He is on the board of directors of the Centre for International Development and Environmental Research at Gießen and serves as chair of the Scientific Advisory Council of the German Federal Ministry for Economic Cooperation and Development. Apart from general public international law his research interests focus on international human rights law, international security and international environmental law. Together with Geir Ulfstein and Andreas Zimmermann he co-edited “Making Treaties Work” (2007). Erik J. Molenaar is senior research associate at the Netherlands Institute for the Law of the Sea (NILOS), Utrecht University, the Netherlands, and adjunct professor at the Faculty of Law of the University of Tromsø, Norway. After having completed his PhD on “Coastal State Jurisdiction over Vessel-Source Pollution” (1998) and his tasks as assistant rapporteur to the International Law Association’s Committee on Coastal State Jurisdiction Relating to Marine Pollution, he broadened his research field with international fisheries law. This has led to several publications and participation in various diplomatic conferences and other intergovernmental meetings, including annual meetings of the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR). In recent years, he expanded the
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consultancy component of his work, with juridical advice commissioned inter alia by various Netherlands and Norwegian Ministries, shipping companies, the United Nations Environment Programme (UNEP), the United Nations Food and Agriculture Organization (FAO), the European Parliament and the European Commission. Annika E. Nilsson is a Research Fellow at the Stockholm Environment Institute. Her scientific focus is on the interface between science and policy and brings together perspectives from international relations and science and technology studies to investigate how the structure of international cooperation affects society’s capacity to learn about environmental issues. Her current interests include attention to social learning in the context of adaptive governance and multilevel environmental governance. She received her PhD from Department of water and environmental studies, Link¨oping University, in 2007. Her previous professional experience includes extensive work as science writer and editor covering biotechnology developments, global environmental change, and Arctic issues. Maria Pettersson is a researcher at Lule˚a University of Technology. Her research is in the area of environmental and natural resources law with special focus on energy law. The research mainly relates to issues in connection with the legal implementation of renewable energy policy. She holds a Ph.Lic. in Law and a M.Sc. in Economics. Her current interests are connected to the legal preconditions for attaining a sustainable energy supply in the Arctic region. S.G. Sreejith, Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Finland. Monica Tennberg is a Research Professor at the Arctic Centre of the University of Lapland. She graduated from the University of Helsinki in 1990 with a master’s degree in Political Science, and received her licentiate degree (1994) and doctoral degree (1998) in Social Sciences from the University of Lapland (international relations). From 1989 to 2004 she worked as an assistant, senior assistant and as a researcher in the Department of Social Sciences. Since 2004 she has been Research Professor in Sustainable Development at the Arctic Centre. Her main field of study is international environmental politics in the Arctic. She heads several research projects, especially about indigenous identity politics, social impacts of climate change, and Russian environmental politics and supervises Ph.D. students. David L. VanderZwaag is a Professor of Law and Canada Research Chair in Ocean Law and Governance at Dalhousie University. He was co-founder of Dalhousie’s interdisciplinary graduate program in Marine Affairs and is presently Director of the Marine & Environmental Law Institute. His principal research interests are in the areas fisheries, aquaculture, law of the sea, international environmental law and transboundary cooperation. He co-led the writing of the “Governance of Arctic Marine Shipping” technical report as part of the Arctic Marine Shipping Assessment (expected to be released in 2009). He is a member of the IUCN
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Commission on Environmental Law and co-chairs the Specialist Group on Oceans, Coasts and Coral Reefs. Lotta Viikari is a Doctor of Law, University of Lapland (2007), Licentiate of Administrative Sciences, University of Joensuu (2006). Dr. Viikari is currently an Acting Professor of Public International Law at the Faculty of Law, University of Lapland. She has worked for several years as a researcher in the Northern Institute for Environmental and Minority Law, Arctic Centre (University of Lapland) and, previously, in the Faculty of Law, University of Lapland. She has also been appointed as an Assistant Professor in Constitutional Law and International Law at the University of Joensuu (2003–2004). More recently, she has served as an Acting Professor of Private International Law at the University of Lapland (2008). Dr. Viikari has published especially in the areas of space law, environmental law, and law of the sea.
Part I
Climate Change in the Arctic
Chapter 2
The Climate Change Regime and the Arctic Region Meinhard Doelle
Abstract This chapter provides an overview of the climate change regime from an arctic perspective. The chapter poses a number of questions about the ability of the regime to take appropriate account of arctic interests in its efforts to mitigate climate change and adapt where impacts are not prevented. The chapter is divided into four components, a brief history of the regime, its approach to mitigation, efforts to date on adaptation, and the future of the regime. The history of the regime tracks its evolution through the IPCC, the UNFCCC, the Kyoto Protocol, and its implementation. The section on mitigation describes the emission reduction targets in the Kyoto Protocol and the various mechanisms available to meet these targets. The adaptation section considers provisions in the UNFCCC and the Kyoto Protocol, and their implementation to date. The final section considers the future of the regime and the promise it holds for addressing arctic concerns over the adequacy of mitigation, adaptive capacity, and the specific vulnerability of this region. In light of the inadequacy of the global response to climate change to date, the chapter discusses how arctic interests have been represented in the climate change regime to date.
2.1 Introduction This chapter provides an overview of the climate change regime from an Arctic perspective, with a focus on mitigation and adaptation measures developed within the regime. Mitigation in the context of this chapter refers to any human induced effort to reduce the emission of greenhouse gases or their concentration in the atmosphere. Adaptation includes all human efforts to lessen the impact of climate change on human or natural systems. Impacts of mitigation measures are considered under mitigation. In considering both mitigation and adaptation, the chapter seeks to address
M. Doelle (B) Marine and Environmental Law Institute, Dalhousie Law School, Halifax, Nova Scotia, Canada, B3H 4H9 e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 2,
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M. Doelle
the following specific questions about the ability of the regime to take appropriate account of Arctic interests. 1. Will the regime ensure mitigation is effective globally in preventing irreparable harm in the Arctic region? • Does or will the regime address responsibility and liability for impacts that are not mitigated successfully? 2. What impact will mitigation measures have on the Arctic? • Does the climate change regime address impacts of mitigation on the Arctic? 3. Will the regime provide adequate assistance to ensure effective adaptation in the Arctic where possible? 4. Does the Arctic have an adequate voice in the regime? • Are Arctic states adequately representing Arctic interests? • Do Arctic indigenous peoples have an adequate voice in the development of the regime? The chapter is divided into four parts designed to consider how the regime addresses these questions. It is important to note, however, that not all the questions posed will be fully addressed in this chapter, as some are considered in more detail in other chapters of the book. Part I provides a brief history of the regime. This is followed in Parts II and III with an assessment of the regime’s approaches to mitigation and adaptation. Part IV considers the future of the regime. The chapter tracks the history of the regime from 1988 to 2007, from the creation of the Intergovernmental Panel on Climate Change (IPCC),1 the UN Framework Convention on Climate Change ([UNFCCC], 1992), to the development and implementation of the Kyoto Protocol (Kyoto Protocol, 1997). The section on mitigation describes the emission reduction targets in the Kyoto Protocol and the various mechanisms available to meet these targets. The adaptation section considers provisions in the UNFCCC and the Kyoto Protocol, and their implementation to date. The future of the regime is considered in light of developments up to COP 13 in Bali in December, 2007. The focus here is on the promise the post 2012 regime holds for addressing Arctic concerns over the adequacy of mitigation, adaptive capacity, and the specific vulnerability of the Arctic region. In light of the inadequacy of the global response to climate change to date, certainly from an Arctic perspective, the chapter briefly highlights how Arctic interests have been represented in the climate change regime. In considering how the regime relates to the Arctic, it is important to understand the central role of the state in the development of the climate change regime. While the UN negotiating process has become much more transparent to non-state actors such as non-governmental organisations and international institutions, it is 1 Intergovernmental
Panel on Climate Change, see Online: IPCC http://www.ipcc.ch/
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The Climate Change Regime and the Arctic Region
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still the states that control the development of the regime. Other actors, such as indigenous organisations, intergovernmental organisations and other actors with a particular interest in the Arctic can only influence the development of the regime through party states. This means that it is the Arctic states that have the principal responsibility to represent Arctic interests, as Arctic interests are formally represented in the climate change regime by the Arctic states. Many of these states have so far not given priority to Arctic concerns either in their domestic policies or in their international negotiation positions. This is perhaps most apparent in the focus on the economic consequences of mitigation over the consequences for the Arctic region of failing to mitigate. Non-state actors with an interest in Arctic issues are, of course, at times able to encourage non-Arctic states to consider Arctic issues in their national policies and international negotiations. As discussed in more detail elsewhere in the book, there is now overwhelming scientific evidence of significant climate change impact on the Arctic, both in terms of current and predicted future impacts. The Arctic is of particular interest to climate scientists for a number of reasons. First, the Arctic is very vulnerable to climate change. Second, climate change is predicted to occur sooner in the Polar Regions than elsewhere and the magnitude of the change is expected to be higher. Finally, there is already more evidence of climate change in the Arctic than elsewhere.
2.2 Brief History of the Development of the Regime The climate change regime consists of a number of separate but interconnected institutions, most notably the UNFCCC, the Kyoto Protocol and the Intergovernmental Panel on Climate Change (IPCC). The IPCC is to provide the information needed by negotiators and policy makers. It has therefore directly influenced the development of the UNFCCC and the Kyoto Protocol. The UNFCCC, in turn, has influenced the work of the IPCC by providing direction through the COP on the focus and range of issues to be covered in the various IPCC reports. The IPCC has produced four comprehensive assessments of the state of knowledge related to climate change globally. In addition, it has released a number of issue specific reports. The most recent assessment report, released in 2007, is comprised of a volume by each of the IPCC’s three working groups: the scientific basis of climate change (WGI), impacts and vulnerability and adaptation of climate change (WGII), and mitigation of climate change (WGIII). These three volumes are complemented by a Synthesis Report. The Arctic region has been featured in each of the four assessment reports completed to date. From its fairly modest role in the first assessment report, the Arctic region has come to be recognised as an early warning system and living laboratory to the world on the impacts of climate change, as one of the most threatened parts of the world, and as an important part of the climate system. The first comprehensive IPCC report was released in 1990. It provided a basis for the negotiations leading to the adoption of the UNFCCC in 1992. The second assessment report was completed in 1995, and served a similar role with respect to
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the Kyoto Protocol. The IPCC’s third assessment report, released in 2001, provided the scientific basis for development of implementation rules for the Kyoto Protocol in the form of the Marrakech Accords. Finally, the fourth assessment report was released in 2007 and is expected to serve as the scientific basis for current negotiations on the post 2012 climate change regime. The development of each of the IPCC’s four comprehensive reports has been a multi-year effort. The IPCC has done much of its work through three working groups involving lead authors and other experts on the respective issues covered. These working groups have largely been led and controlled by scientists, not policy makers or politicians. From the work of these scientific working groups, however, a political process has been utilised to develop a summary for policy makers.2 It is this summary of the key findings of each of the working groups for each of the four comprehensive assessment reports that has provided the scientific basis for development and implementation of the UNFCCC and the Kyoto Protocol. For all four assessment reports released to date, working group I has been tasked with dealing with the science of climate change. This has included discussion of the sources of greenhouse gases, their impact on the climate system, observation of climate variability, and model predictions for future climate change. Working group II was originally established to consider the environmental and socio-economic impacts of climate change. For the second assessment report, the mandate for working group II was broadened to include an assessment of the feasibility of response measures. Its mandate since the third assessment report has shifted to regional and sectoral vulnerability and adaptation. By the third assessment report in 2001, Polar Regions were given their own chapter in the final report of working group II. Working group III was originally given the task of formulating response measures. Working group III’s mandate has since shifted to considering the socio-economic dimensions of climate change, including the relationship between mitigation and sustainable development. Throughout, the IPCC’s assessment reports have been instrumental in the creation and development of the UNFCCC (Nilsson, 2007, p. 74). The origins of the UNFCCC go back to a number of UN General Assembly resolutions from 1988 to 1990 leading to a negotiating mandate, a negotiated treaty by 1992, and its entry into force by 1994. The Conference of the Parties to the UNFCCC then developed the Berlin Mandate which led to the negotiation of the Kyoto Protocol adopted in 1997. The Marrakech Accords in turn enabled the implementation of the Kyoto Protocol in time for the first commitment period from
2 For the most recent summary for policy makers, see Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Basis, Summary for Policymakers, available at http://www. ipcc.ch/SPM2feb07.pdf; Intergovernmental Panel on Climate Change, Climate Change 2007: Impacts, Adaptation, and Vulnerability, Summary for Policymakers, available at http://www.ipcc. ch/SPM13apr07.pdf; Intergovernmental Panel on Climate Change, Climate Change 2007: Mitigation of Climate Change, Summary for Policymakers, available at http://www.ipcc.ch/ SPM040507.pdf.
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2008 to 2012. Negotiations have now been formally under way since 2005 for the post 2012 regime. The pre-convention phase of the regime consists of resolutions of the General Assembly of the United Nations from 1988 to 1990 that collectively provided important context for the negotiations that lead to the framework convention in 1992. The first resolution in 1988 recognised that climate change posed economic and social consequences resulting from environmental impacts such as sea level rise (United Nations General Assembly [UNGA], 1988). Follow-up resolutions in 1989 quickly identified the need for a new international regime to deal with climate change (UNGA, 1989). The principle of common but differentiated responsibilities was introduced, and the resolutions otherwise encouraged states and existing institutions to cooperate in seeking solutions to climate change without much direction from the General Assembly. In 1990, the General Assembly initiated negotiations for a framework convention on climate change to be ready for signature at the Rio Conference (UNGA, 1990). The negotiating mandate incorporated previous resolutions, and generally recognised links between climate change and the social and economic well-being of current and future generations of humans. The end product of these negotiations was the UNFCCC. The UNFCCC has been almost universally ratified by UN member states.3 It established the overall objective of avoiding dangerous human interference with the climate system. It enshrined important principles for subsequent negotiations, such as the principle of common but differentiated responsibility, the precautionary principle, and equity for present and future generations. In addition, the UNFCCC set a number of voluntary targets, and established institutional structures for substantive negotiations (Doelle, 2005). In December 1997, Parties to the UNFCCC agreed to the text of the Kyoto Protocol, the first international agreement on binding emission reduction targets for greenhouse gas emissions. The Protocol included individual targets for developed countries for the time period of 2008–2012, based on 1990 as a base year. This means developed countries have to limit their emissions during the five years from 2008 to 2012. While the basic building blocks were negotiated in Kyoto, the detailed rules on how to implement Kyoto had yet to be developed. It took four years to reach an agreement on most of these rules in Marrakech in 2001. It took another four years for the Protocol to come into force in February, 2005. The first meeting of the Parties to the Kyoto Protocol took place in Montreal in December, 2005. Since February, 2005, the focus of the global community has been on implementing the Kyoto Protocol for the first commitment period and on negotiating future commitment periods. The Parties have been debating the commitments and obligations necessary after 2012 to enable the global community to meet the
3 For current information on the status of signatories and ratifications, see online: UNFCCC http://unfccc.int.
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ultimate objective of the UNFCCC, to stabilise GHG concentrations at levels that prevent dangerous climate change. These discussions were initiated in Montreal, and are expected to conclude in 2009. In Bali, in December, 2007, the Parties agreed to a roadmap for negotiating the post 2012 climate change regime. The roadmap consists of a convention track and a Kyoto track. The two tracks are to run in parallel and conclude in 2009 at COP 15 with a set of final agreements on the post 2012 regime. These two negotiating tracks were necessary because the ongoing process to set new emission reduction targets under the Kyoto Protocol (initiated in Montreal in 2005), does not include developing countries or the United States. The convention negotiating process initiated in Bali is therefore expected to result in new emission reduction targets for the US and some form of mitigation commitment for developing countries. It is also expected to focus on adaptation, technology and financing to address the particular needs of developing countries. The climate change regime is a set of agreements among member states of the United Nations. The UN negotiations process has gradually become more open to participation by non-state actors; however, it is states that take on primary obligations, make commitments, and make decisions within the UN process. Indigenous Peoples have been pressuring for special status at international climate change negotiations. To date, they have been provided the same observer status as other nongovernmental interests, with some opportunities to present their views and concerns to the Parties at negotiating sessions. It has therefore been up to Arctic nations to represent the interests of this region. Unfortunately, most have paid lip service at best to representing Arctic interests in the negotiations. Canada, Russia, and the United States have certainly not demonstrated leadership in pushing for the level of mitigation effort required to prevent irreparable harm to the Arctic region. Efforts to facilitate adaptation and to agree on responsibility for residual impacts have also been limited. Whatever the reason, it is clear that Arctic nations have not vigorously represented Arctic interests, but rather appear preoccupied with more southern interests.
2.3 Mitigation Under the Kyoto Protocol4 This section assesses the effectiveness of mitigation efforts within the climate change regime The focus is on the Kyoto Protocol, as it includes the most recent and most substantive effort on mitigation to date. With respect to the questions posed at the outset, the Kyoto Protocol was always seen as a first step toward meaningful global mitigation measures. It is, on its own, clearly inadequate to prevent irreparable harm to the Arctic. In light of the lack of progress toward accelerated mitigation efforts and observations of more and more rapid climate change in the Arctic region, prevention of irreparable harm through mitigation seems less and less 4 This
section is adapted and updated from Doelle, M. (2005, pp. 29–59)
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likely. The extent of harm will largely depend on what additional mitigation efforts are negotiated and implemented. The Kyoto Protocol imposes a number of obligations on party states. Most notably it requires developed states to reduce their emissions relative to a 1990 baseline by the end of 2012. Targets assumed on a state by state basis range from 8% below to 11% above 1990 levels of emissions. These targets can be met through a combination of domestic action and reliance on three flexibility mechanisms; the Clean Development Mechanism, Joint Implementation, and Emissions Trading.5 These mechanisms are available to developed countries to supplement domestic action with reductions achieved outside their own jurisdictions. To allow the trading mechanisms to function, and to ensure compliance with emission reduction obligations, the Marrakech Accords provided detailed rules for reporting and verification of emissions and credits. The Accords also established a compliance committee, consisting of a facilitative branch and an enforcement branch. The reporting and compliance rules set out in some detail how determinations will be made at the end of the first commitment period as to a party’s state of compliance. The consequences of non-compliance are also established. The compliance system under Kyoto is considered to be the strongest of any multilateral environmental agreement (MEA) (Brunn´ee, 2000; Doelle, 2005). The Kyoto Protocol provides for assistance to developing countries to facilitate their efforts to reduce emissions and to adapt. It provides for direct financial assistance, requires Parties to consider adaptation assistance, and includes provisions for technology transfer and capacity building. This is particularly important given that developing countries were not allocated reduction targets in the Protocol, are recognised to have more limited capacity to mitigate and adapt, and are therefore not as directly engaged in efforts to address climate change. In short, the basic building blocks of the Kyoto Protocol include emission reduction targets for developed countries, three trading mechanisms and the use of sinks to offset emissions, reporting, compliance, and assistance to developing countries.
2.3.1 The Kyoto Mechanisms The Kyoto Mechanisms were included in the Protocol, at least in part, in recognition that the country-specific targets agreed to for Annex I countries provided only a crude tool for balancing the relative economic cost for each of the Parties to reduce emissions. Only after the conclusion of the first commitment period will a thorough analysis of the relative economic costs and benefits to the respective parties to the Protocol be possible. In the meantime, the mechanisms provide a release valve to ensure that if one party’s target is disproportionately expensive to achieve,
5 See Kyoto Protocol, Articles 6, 12, and 17. In addition, parties can offset emissions through the use of sinks, which are mechanisms to take greenhouse gases back out of the atmosphere. These are discussed below.
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it can delay reductions in its own country and instead support reductions in another country. Within party states that allow private entities with emission reduction obligations access to the mechanisms, they can serve a similar function for non-state actors (Doelle, 2005). Another objective of at least two of the mechanisms was to address capacity building issues in developing countries and economies in transition, as these countries are expected to make major capital investments in energy-producing technologies in the near future. Inherent in the inclusion of these mechanisms was a recognition that influencing the choice of energy at this time might have significant long-term benefits. This concept applies to developing countries that are at a stage in their development where their energy needs are likely to increase significantly in the years to come. The mechanism established for this purpose is the Clean Development Mechanism. The same concept also applies to economies in transition, i.e., eastern European nations with economies that fell apart after the collapse of the Soviet Union, and which are in the process of rebuilding. The mechanism established to facilitate a low emissions development path for economies in transition is Joint Implementation (Doelle, 2005). 2.3.1.1 The Clean Development Mechanism (CDM) The Clean Development Mechanism was a late addition to the Kyoto Protocol (Werksman, 1998; Stewart et al., 2000; Wright, 2007). The basic concept was to give Annex I countries a release valve if domestic action became too expensive, and to provide developing countries with much needed development assistance in the form of technology transfer and economic activity that would help to place them on a low emissions development path. The Parties agreed that if reductions could be achieved more cost-effectively in a developing country that has no reduction target,6 such a country should be able to join forces with an Annex I country7 to achieve those reductions. Thus, the reductions would be achieved in the developing country but count toward the target of the Annex I country. In turn, the Annex I country, either directly or through private investors, provides assistance to the developing country to achieve reductions that would otherwise not have been realised (Stewart, Connaughton, & Foxhall, 2001; Thomas, Basurto, & Taylor, 2001; Bachelder, 2000; Doelle, 2005; Wright, 2007). One of the main challenges with CDM projects has been how to establish the baseline against which the emission reductions of a project are assessed. Setting a
6 It is assumed, therefore, that the developing country has no direct, short-term incentive to make the reductions. Certainly, no such direct incentive exists under the Protocol itself. The question of what a developing country would do, however, in the absence of assistance under this mechanism is a very difficult question to answer, and would have to consider other motivations for taking action to reduce emissions, including, but not limited to, the possibility of a future target, or an effort to demonstrate to Annex I countries that their efforts are inadequate, and not based on best efforts. 7 Annex I countries have emission reduction targets under the Protocol, and thereby an incentive to support efforts to reduce emissions, if they can get credit for the reductions realised.
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baseline requires a comparison of business as usual and emissions with the CDM project in a host country. The challenge is how to accurately predict at the time the CDM project is certified what the host country would have done without the project.8 The end result is a baseline for the CDM project against which the emissions from the project are to be measured to determine how much emissions have been reduced by the project. A related issue in the accreditation of CDM projects is the requirement of additionality, which essentially asks CDM project proponents to demonstrate that the emission reductions achieved would not have happened without CDM support. Additionality is therefore about demonstrating that the CDM accreditation is responsible for reductions below the baseline. The Marrakech Accords assign the host party the final decision-making authority to determine whether the project activity assists it in achieving sustainable development.9 One exception to this is that Annex I Parties agreed to refrain from using reductions achieved from nuclear projects.10 Unilateral CDM projects are permitted. This allows developing countries to seek out private companies who are in possession of technology that the host country chooses to adopt, and to try to develop CDM projects on their own and then market the resulting credits. The Marrakech Accords establish an Executive Board to oversee CDM project approval and credit verification. The Executive Board is made up of ten members elected by the conference of the Parties serving as the meeting of the Parties to the Protocol (COP/MOP). Meetings of the Executive Board are open to the public, and documents are made available to the public. (United Nations Framework Convention on Climate Change [UNFCCC], 2005a, Annex, Part C). The validation of individual CDM projects is carried out by operational entities accredited by the Executive Board (UNFCCC, 2005a, Annex, Part D). These operational entities have the responsibility to validate CDM project activities and verify actual emissions against the established baseline (UNFCCC, 2005a, Annex, Part E). The Executive Board oversees this process by means of annual activity reports submitted by each operational entity. Operational entities are retained by project participants to carry out the validation and verification and report the results to the Executive Board. The Executive Board formally registers the CDM project after its review of the report of the operational entity. There are limits imposed on the time period during which credits can be issued for a given project (UNFCCC, 2005a, Annex, Part G, para. 49). Participation in a CDM project is voluntary for both the host country and the prospective purchaser of CDM credits. If a host party chooses to participate, Part F of the Annex requires it to have a designated national authority as a body responsible for CDM project involvement of that country (UNFCCC, 2005a, Annex, Part F). 8 Either for the life of the proposed CDM project or even just until the end of the first commitment period. 9 Most of the key rules for the use of the Kyoto mechanisms were negotiated in Marrakesh and formally adopted in Montreal. All references are therefore to the text adopted in Montreal. 10 The same principle applies to Joint Implementation projects. Nuclear energy projects are therefore also excluded from JI.
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Credits from CDM projects can be earned effective from the year 2000. Baseline and credit approval can take place as soon as the Executive Board has completed the accreditation of operational entities to carry out that process. Sinks projects under the CDM are limited to afforestation and reforestation projects, and no Annex I country can use more than the equivalent of 1% of its assigned amount from sinks credit under the CDM to meet its first commitment period target (UNFCCC, 2005b). Finally, 2% of the certified emission reductions are set aside under an adaptation fund to assist developing countries that are particularly vulnerable to the adverse effects of climate change. The need for improvements to the Clean Development Mechanism had become apparent to many States and observers by the time Kyoto came into force in 2005 (Cosbey et al., 2005, p. 53). The CDM had been implemented well before Kyoto came into force because it can generate credits before 2008. As a result, the Executive Board and the administrative structure necessary to approve projects and certify credits were set up following negotiation of the Marrakech Accords in 2001. This meant that by the time Kyoto came into force, the Parties already had a few years of experience implementing the CDM rules in the Marrakech Accords. Based on this experience, a number of issues have been raised. With respect to the quality of CDM projects, a number of problems were noted as a result of the early experience with the CDM. Concerns ranged from regional distribution of CDM projects to questions about the long term contribution they will make to a low emissions path to sustainable development. A particularly controversial type of project has been carbon capture and storage. In 2005, the Intergovernmental Panel on Climate Change (IPCC) released a study of technical and methodological issues with respect to carbon capture and storage (CCS) (Intergovernmental Panel on Climate Change [IPCC], 2005). Specific issues raised include questions about permanence, and whether credits from CCS constitute avoided emissions or a removal of greenhouse gases. For some States, capture and storage technologies offer an important option that will allow parties to commit to and meet the drastic emission reductions necessary to avoid the most serious consequences of climate change. For others, it is an option that will divert attention away from the need for a more serious effort on projects that will contribute to a low emissions path to sustainability in developing countries, such as projects involving energy efficiency, conservation and the promotion of renewable energy sources (Bradley & Baumert, 2005). Not surprisingly, the issue of CDM eligibility for carbon capture and storage has not been resolved, and will be the subject of future negotiations. Avoided deforestation in developing countries was another category of CDM projects that received particular attention. A proposal by Papua New Guinea and Costa Rica to allow CDM credits for avoided deforestation was received very favourably by the Parties but there was insufficient time to reach agreement on concrete steps forward, given that the proposal was submitted only shortly before the Montreal Conference. Nevertheless, there was considerable discussion on the details, and the Parties agreed to continue the negotiations. In Bali, avoided deforestation in developing countries became part of a broader discussion about
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links between climate change and biodiversity generally and the link between forests as sinks and forest conservation more specifically. Negotiations on these issues are ongoing. The process is expected to lead to a decision on the role of avoided deforestation in the post 2012 regime. Other issues raised include the regional distribution of projects, and administrative challenges of the Executive Board. Capacity building for CDM host countries and some modest steps toward a broader application of the CDM have been offered as some preliminary steps toward addressing concerns of African countries that they have been left out of the CDM process. These issues will undoubtedly come up again in the context of any discussion about the climate change regime post 2012. A comprehensive review of the CDM was, however, rejected at COP 13 in Bali. Increased funding, additional staff, and a decision on the recovery of administrative expenses from CDM credit revenues were other steps taken to strengthen the CDM for the first commitment period (Doelle, 2006). 2.3.1.2 Joint Implementation (JI) Joint implementation is a hybrid of Emissions Trading and the Clean Development Mechanism directed mainly at economies in transition. It consists of two tracks, one resembles emissions trading, and the other is project-based and resembles the Clean Development Mechanism. The reason for the two tracks is a concern among Annex I countries interested in joint implementation activities that some of the countries with economies in transition might have capacity problems with respect to some of the eligibility requirements for emissions trading (Wiser, 1997; Brown, 1997; Hanafi, 1998; Doelle, 2005). The main difference between the two tracks relates to verification of the baseline and additionality11 of emission reduction units to be issued to the funding party. For track one, the emissions trading track, this is done by the host country, based on the principle that because it has its own target to meet, there is no incentive for the host country to overestimate the reductions achieved. Track two is based on the assumption that the host country does not know where it stands domestically; it has not met an eligibility requirement (such as annual reporting on emissions based on accepted standards), and is therefore treated more like a Non-Annex I country without an emissions reduction target. This means the involvement of a JI Executive Board similar to the CDM board, and a similar role for designated national authorities and operational entities to validate the project and verify emission reductions.
11 Additionality
refers to the need to verify that the reduction credits claimed are additional to any reductions that would have taken place without the joint implementation project. There are different ways to define additionality, one is financial, others may look at technology or other ways of determining what would have happened without the joint implementation of the project. The project may not have taken place, the project may have gone ahead with higher emissions, or the project may have gone ahead without change.
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The Montreal Conference was the first opportunity for the Parties to the Kyoto Protocol to operationalize JI. Approved projects can only generate credits during the commitment period from 2008 to 2012, so there was less pressure for an early start to JI than for the CDM, which could generate credits as of 2000. With the entry into force of the Protocol, the Supervisory Committee for JI was ready to be established in Montreal in 2005. This provided one more opportunity for the Parties to debate the rules for JI projects. Much of the debate was a tug of war between developing country parties and Economies in Transition on how to make JI or the CDM relatively more attractive for investors. In the end, only a few minor changes were made to expedite the process of approving JI projects. 2.3.1.3 Emissions Trading (ET) In some respects, emission trading is the most straightforward of the three mechanisms, in that it deals with the exchange of credits between Annex I countries only. It does not involve the creation or validation of new emission reduction or sequestration credits, nor is it concerned with baselines. It simply allows Annex I countries to exchange the right to emit greenhouse gases during a given commitment period. At the same time, this is where the whole carbon trading system created under the Kyoto Protocol comes together. It is here that crucial decisions were made about the environmental integrity and equity of the Kyoto Protocol. It is here that monitoring, reporting, verification and compliance all come together to determine the effectiveness of the overall process being established through Kyoto and Marrakech (Bachelder, 2000; Stewart et al., 2001; Doelle, 2007). A key issue for emissions trading is the fungibility of the various credits. Fungibility refers to the idea that emissions and sequestration credits should be fully interchangeable. Under the Marrakech rules, parties are free to trade CERs and RMUs in addition to being able to trade part of their assigned amount. Trading can be between parties and can involve private entities. There is a limit of 2.5% of a party’s assigned amount imposed on banking of CERs, and banking of RMUs is prohibited. This is, however, merely symbolic given that the Marrakech Accords do not prevent recycling, whereby a party can keep CERs and RMUs for compliance purposes and bank its assigned amount units instead.12 The rules on reporting, verification, and certification of emissions and credits are addressed below.
12 Recycling can circumvent all these measures given that the amount of credits generated through
the Clean Development Mechanism and the use of sinks will be considerably less on average than the amount of emission credits held by a party based on its target, the assigned amount. The limitations placed on banking only become an issue for a party that holds CERs and RMUs that are in total close to or higher than the actual emissions of that party, without counting any of the assigned amount units held by that party. This is why, in practice, the limits imposed on banking of RMUs and CERs are merely symbolic.
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2.3.2 Land-Use, Land-Use Change and Forestry The focus of the Kyoto Protocol is on the control of greenhouse gas concentration in the atmosphere through the reduction of human sources of emissions. The Kyoto Mechanisms in turn serve to provide flexibility in terms of where the reductions take place. Land-use, Land-use Change and Forestry (LULUCF) offers an alternative to emission reductions for meeting the targets set, by recognising some efforts to enhance the ability of soils, vegetation and forests to extract greenhouse gases back out of the atmosphere. The process of extracting greenhouse gases from the atmosphere is a natural process, but it is one that can be enhanced or hindered through human intervention. The importance of tracking this human intervention in these natural processes was recognised in the Kyoto Protocol through Articles 3.3 and 3.4. In other words, while LULUCF activities do not reduce emissions, they can assist in controlling the concentration of greenhouse gases in the atmosphere. Given the temporary nature of any form of storage of GHGs in soils, vegetation, or forests (sinks), and the challenges involved in accurately estimating the contribution of sinks to reducing GHG concentrations in the atmosphere, the rules for the use of sinks have a critical role to play in understanding the environmental impact of the Protocol. Monitoring, reporting, and verification present a major challenge for sinks, as does the influence of nature, such as forest fires just before the end of a commitment period. These factors increase the chance of a party being out of compliance as a result of an unforeseen event, in spite of careful planning and implementation. Sinks are an issue under the Kyoto Protocol in three contexts: • Article 3.3 with respect to land use changes in the context of forests • Article 3.4 with respect to additional human induced activities related to land use, land use change and forestry, and • The use of sinks under the Clean Development Mechanism. Article 3.3 is fairly limited in scope. It requires inclusion of net changes in carbon stock in Annex I countries compared to 1990 as a result of afforestation, reforestation and deforestation to be included in the accounting of a party’s emissions for purposes of meeting its emissions reduction target. Article 3.3 is limited to land use changes for forests, and is further limited to direct human-induced changes, excluding natural afforestation, deforestation and reforestation. Furthermore, what is accounted for under Article 3.3 is the change in carbon stock during the commitment period as a result of the land use change, not the total change in carbon stock since 1990 (the base year for identifying what land use changes have occurred). Essentially, Article 3.3 creates an incentive for Annex I countries to maximise the forest cover within their jurisdictions. Article 3.4 has been much more problematic and controversial. It essentially provides an opportunity for Annex I Parties to claim credits for removing greenhouse gases from the atmosphere through means other than land use change in the context of forests. This might include forest management activities, and the sequestration of
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carbon through other means such as in soils, among others. Rules for the application of Article 3.4 allow the Parties to use the following activities to generate credits under Article 3.4: revegetation, forest management, cropland management, and grazing land management (UNFCCC, 2005d, Annex, Part C). Of these, forest management has been the most controversial, in part because it is generally recognised to have the greatest sequestration potential, and because of difficulty in separating natural sequestration from sequestration induced by human forest management activity. The Parties agreed to country by country caps on the amount of credits a party can generate from forest management under Article 3.4 (UNFCCC, 2005e). Other sinks activities under Article 3.4 are not affected by this cap, and can be used to the extent that a party is able to demonstrate anthropogenic sequestration. Any land accounted for under Article 3.4 becomes part of the permanent inventory of the party, which means that all future anthropogenic emissions by source and removals by sinks are accounted for in future commitment periods. This means that any carbon stored in these forests as a result of human activity will become an emission in case of fire or any other activity resulting in their release back into the atmosphere, whether or not the release is caused by human interference. A country, of course, has the option not to designate any or all of its forested land for forest management, and thereby avoid both the obligation to account for changes in carbon stock for existing forests, and the risk of future debts in case of forest fires or other natural disasters leading to release of the carbon stored. Parties are to make certain elections with respect to the use of Article 3.4 for the first commitment period in their initial reports under Article 7.4. Other than the US, all Arctic states have ratified the Kyoto Protocol. In their respective reports, some Arctic parties have elected to make more limited use of Article 3.4 than others. Canada, for example, has elected to limit its use of 3.4 to cropland management, whereas Denmark has opted to include both cropland and forest management. Sweden, Finland and Norway have elected only forest management, while Iceland has limited the application of Article 3.4 for the first commitment period to revegetation. At the time of writing, the Russian report was not available in English.13 In the context of the Clean Development Mechanisms, the issue of whether sinks projects would qualify for credits had to be decided. The Parties agreed that there could be limited use of sinks under the Clean Development Mechanism. The main challenge with sinks projects under the CDM relates to impermanence, which refers to the fact that all natural sinks eventually re-release the carbon stored back into the atmosphere. In case of sinks in countries that have an emissions reduction target, this problem is addressed by requiring the country to add those emissions into its emissions inventory when the carbon credited is re-released. In the context of the CDM, however, this may not be possible, given that host countries currently do not 13 See online: UNFCCC http://unfccc.int/national reports/initial reports under the kyoto protocol/ items/3765.php. The use of sinks by arctic nations as part of the mitigation strategy illustrates the potential risk of climate change mitigation to biodiversity in the arctic. Mono-plantations and forest management have the potential to threaten biodiversity in an already vulnerable region. Of course, all mitigation measures are associated with some risks.
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have emission reduction targets or assigned amounts. The Parties agreed that sinks projects under the CDM would be limited to afforestation and reforestation during the first commitment period, and that no Annex I country could claim credits from such projects in excess of 1% of its assigned amount.
2.3.3 Reporting, Verification and Compliance Article 5 of the Kyoto Protocol requires Annex 1 Parties to put in place a system for national emissions estimations on an annual basis in accordance with agreed upon methodologies. It allows for adjustments to be made to the emissions estimation if the methodologies are not followed. Article 7 then proceeds to require the Parties to use those national systems to report annually on emissions by source and removal by sink, again, in accordance with agreed upon methodologies. Article 8 finally provides for review, verification and adjustment of the information provided by expert review teams to ensure that the Parties’ annual reporting on emissions and sinks is accurate, consistent, and complies with the agreed upon methodologies. The following are some key terms used in the Marrakech Accords in this context. In addition to certified emissions reductions (CERs), emission reduction units (ERUs) and assigned amount units (AAUs), which were introduced in the Kyoto Protocol, the Marrakech Accords introduced the concept of a Removal Unit (RMU); (UNFCCC, 2005c, Annex, paras 4, 11). This refers to a credit generated through sinks activity under Articles 3.3 and 3.4. Once credits are generated, a number of things can happen to them. Terminology to describe these different options has evolved to describe processes other than the obvious one of trading or transferring credits. Issuing of credits refers to the first step, the process of verifying and certifying credits, i.e., bringing them into existence. The process of cancelling credits refers to the opposite process, whereby credits are taken out of circulation without being used to meet a country’s commitments. This could be done, for example, if a party or an NGO wanted to encourage emission reductions beyond those required under the Kyoto Protocol. Most credits are expected to be retired by one party or another at the end of the commitment period. Retirement of credits refers to the process of using credits to offset emissions during the commitment period (i.e., to meet emission reduction obligations). One other option for Parties is to hold certain credits to meet subsequent commitment period targets rather than use up or trade the credit in the commitment period in which it was generated. This option is referred to as the banking of credits. Two final terms are the recycling or laundering of credits. These terms are used interchangeably to refer to the process of purchasing one type of credit with restrictions attached to it, such as an RMU that cannot be banked, and switching the credit purchased for an AAU or other unrestricted credit held by the party, so that the AAU is banked and the RMU is retired for compliance purposes, rather than the AAU originally held for that purpose. The focus of the compliance system is the obligation of Annex I countries under Article 3.1 to meet their emissions reduction target in accordance with the rules
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and procedures agreed to in Marrakech. There are, however, numerous other obligations in the Kyoto Protocol. These commitments fall into two categories: obligations necessary to verify that a country has met its emissions reduction target, and obligations not essential to that process. Reporting obligations under Articles 5, 7, and 8 of the Kyoto Protocol clearly fall into the first category. Without the information required under those provisions, it is simply not possible to determine whether a country has complied with its national emissions reduction obligation under Article 3.1. The Marrakech Accords set up a compliance committee that will function in the form of a plenary, a bureau, and two branches, one for the purpose of facilitating countries’ efforts to comply with obligations under the Kyoto Protocol, and the other to enforce compliance with specific obligations. The composition of the compliance committee is determined by the composition of the facilitative and enforcement branches. Each branch is composed of one member from each of the five regional groups of the United Nations, one member representing small island states, and two members each from Annex I countries and Non-Annex I countries. Decisions are to be made by consensus whenever possible, failing which a majority of three-quarters is required. The plenary is responsible for reporting to the COP, and for the overall administration of the compliance process. The bureau receives and reviews questions of implementation brought to the compliance committee and determines which branch of the compliance committee is responsible for responding to the issue raised. The facilitative branch is generally responsible for assisting Parties in their efforts to meet their obligations under the Kyoto Protocol. This includes providing advice, and otherwise facilitating compliance with respect to commitments under Articles 3.1, 5.1, and 5.2, and 7.1, and 7.4. With respect to these provisions, the mandate of the facilitative branch overlaps with that of the enforcement branch, which has a mandate to determine compliance and impose consequences of non-compliance with these provisions. In addition to providing advice on Articles 3.1, 5, and 7, the facilitative branch has the exclusive mandate to address questions of implementation with respect to supplementarity under Articles 6, 12, and 17, dealing with effects of mitigation measures on developing countries under Article 3.14, and reporting on demonstrable progress under Article 3.2. The jurisdiction of the enforcement branch is limited to provisions that have a clear link to the emissions reduction target under Article 3.1. All other obligations were in the end agreed to be subject to facilitation only, not enforcement. Decisions of the enforcement branch regarding compliance with Article 3.1 will generally follow the review of the final reports submitted by a party under Article 8 at the end of the commitment period. It is expected that this will be concluded about 15 months after the end of the commitment period. Before making a determination of noncompliance, Parties will have an opportunity to come into compliance by purchasing the necessary credits from another party. Under Part XIII of the compliance annex, a party may buy credits for compliance purposes up to 100 days after the expert review process for the commitment period under Article 8 is declared by the COP/MOP to be concluded. (UNFCCC, 2005f, Part XIII).
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The importance of the distinction between the two branches becomes clear when one compares the consequences applied by each of the branches. The facilitative branch can apply the following consequences: • Provision of advice and facilitation of assistance • Facilitation of financial and technical assistance, including technology transfer and capacity building • Formulation of recommendations to a party on what could be done to address concerns about a party’s ability to comply with its obligations (UNFCCC, 2005f, Part XIV). The enforcement branch has the power to apply the following consequences: • Declaration of noncompliance • Require a party to submit a compliance action plan, which would include an analysis of the causes of non-compliance, measures to be taken to return to compliance, and a timetable for implementing the measures • Suspension of eligibility to use the mechanisms, if a party is found not to meet one of the eligibility requirements • In case of failure to meet its emissions reduction target under Article 3.1, the branch shall deduct from the party’s assigned amount for the second commitment period 1.3 times the amount of excess emissions from the first commitment period (UNFCCC, 2005f, Part XV). The substantive penalty for not meeting the first commitment period target therefore is a reduction of the assigned amount in the second commitment period with a multiplier or penalty rate.14
2.4 The Climate Change Regime and Adaptation This section explores the ability of the climate change regime to ensure effective and adequate adaptation to impacts not avoided through mitigation. Closely related to the issue of adaptation is the allocation of responsibility for impacts that remain after adaptation. While it is too early to say how effective mitigation will be in reducing climate change impacts, the experience to date suggests that adaptation will become a critical part of the climate change regime. In the Arctic region, impacts have already proven to be more severe than the global average, and this trend is expected to continue. This means the Arctic region will experience irreversible climate change long before other parts of the globe. The terms adverse impacts of climate change, adaptation, and vulnerability are all used within the climate change regime to refer to the need to deal with impacts 14 Also
referred to as borrowing or restoration.
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that are not avoided through mitigation. The IPCC defines adaptation as “adjustments in practices, processes, or structures” which can “moderate or offset the potential for damage or take advantage of opportunities created by a given change in climate”. Vulnerability is defined as the susceptibility of an affected system, or its inability to cope with the change (Watson, 2002, p. 6). Vulnerability therefore is a function of mitigation efforts to reduce climate change, natural ability to adapt, and adaptive measures implemented to reduce vulnerability to the impacts that occur in spite of the mitigation effort. This section explores the extent to which the climate change regime has dealt with the responsibility for the adverse impacts of climate change that are not avoided through mitigation.
2.4.1 Adaptation in the UNFCCC and Kyoto There are numerous statements of principle and general commitments with respect to adaptation in the UNFCCC. The preamble includes references to adverse effects, to the vulnerability of small island states and low lying areas, and lists particularly vulnerable states. Article 2 of the convention itself sets the overall goal of mitigating climate change to ensure that ecosystems can adapt naturally. Article 3.1 requires developed states to take the lead in combating both climate change and its adverse effects. It provides for a combination of national efforts and international cooperation. The UNFCCC, however, is short on specific measures to be taken to ensure effective adaptation. Article 4.8 calls on the Parties to consider a range of actions to meet the specific needs and concerns of developing countries with respect to adaptation. Measures proposed include direct funding, insurance, and the transfer of adaptation technology. The Kyoto Protocol adopts these various adaptation principles and commitments by reference along with additional commitments in Articles 2.3, 3.14, and 10. Articles 2.3 and 3.14 urge the Parties to implement policies and measures in such a way as to minimise adverse effects of climate change and its mitigation. Article 3.14 specifically deals with the social, economic and environmental impacts of mitigation measures on developing countries. Controversy over the application of this provision to require developed nations to assist with the economic diversification of OPEC countries was one of a number of factors to slow down progress on adaptation under Kyoto. Article 10 of the Kyoto Protocol, in the context of common but differentiated responsibilities, provides the most detail direction on adaptation of any of the articles in the Protocol. It refers to national and regional plans to facilitate adequate adaptation, and requires developed states to report on action taken in this regard. Transfer of technologies, research and education are specifically identified. Obligations under Article 4.8 of the UNFCCC are incorporated by reference. The Marrakech Accords are the primary instruments for the implementation of these commitments in the Protocol. The Accords established three funding mechanisms for developing countries, the Adaptation Fund (AF), the Special Climate
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Change Fund (SCCF), and the Least Developed Countries Fund (LDCF). Of the three, only the LDCF was operationalized prior to the Montreal Conference in 2005. All three have the potential to assist with adaptation issues in developing countries, but it is the adaptation fund that is most likely to make a significant financial contribution as it is funded directly out of the proceeds from CDM projects. Adaptation has been a priority issue for developing countries since COP 8 in New Delhi in 2002. In Montreal, the focus on this issue was the Buenos Aires Programme on Adaptation, a five-year work plan on adaptation. As the programme had just been agreed upon a year earlier, the focus in Montreal was on ensuring that its implementation was on track. Key outstanding issues in implementation include the treatment of least developed countries, adaptation needs, and the needs of oil exporting developing countries and their lost economic opportunities from the anticipated reduction in the demand for oil. No significant progress has been made on these issues since Montreal.
2.4.2 Current State of Efforts on Adaptation It is clear from the review of the UNFCCC and the Kyoto Protocol that adaptation was not a priority issue in the negotiation of these two instruments. There is, however, an emerging consensus that adaptation will be an important part of the overall regime, that developed countries will have to take the lead in developing appropriate and effective adaptation strategies and assist developing nations with implementation. This, along with sustained pressure from developing countries since COP 8 in New Delhi, resulted in the adoption of the Buenos Aires Programme of Work on Adaptation and Response Measures at COP 10 and the Nairobi Work Programme on Impacts, Vulnerability and Adaptation to Climate Change at COP 12. The Nairobi Work Programme identifies nine areas of work, ranging from the development of tools and methods and the collection and sharing of information to specific initiatives on technologies, planning, modelling, and extreme weather events. Work is ongoing under each of the nine subject areas. The five year programme is divided into two phases. The first phase is under way, while the second phase is to begin in 2009. Phase two is to take account of the fourth assessment report of the IPCC. In Bali, the Parties continued their work to ensure implementation of the Nairobi Work Programme and on the role of adaptation in the post 2012 climate change regime. Adaptation has now been recognised as one of four cornerstones of the post 2012 regime, along with mitigation, technology and finance. The latter two cornerstones are furthermore recognised to cut across mitigation and adaptation efforts. The Bali conference also produced results for implementation of the existing adaptation programme. Most notably, the Parties finally made the decisions necessary to operationalize the adaptation fund. The decision appoints the GEF as secretariat of the fund and the World Bank as trustee as an interim arrangement to allow the fund to come into existence. The arrangement is to be reviewed every three years.
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A key expected outcome of the 5 year programme is an enhanced capacity at all levels to identify and understand impacts, vulnerability and response measures. This should result in better information and advice on adaptation to the COP, better cooperation and more effective implementation of adaptation measures. Integration of adaptation with sustainable development is another goal of the programme. From an Arctic perspective, the Nairobi Work Programme is the first adaptation programme under the UNFCCC to specifically mention the Arctic region. It is important to note, however, that the focus of adaptation efforts under the climate change regime has been on developing countries, leaving adaptation in developed states to national governments. As all Arctic states are considered developed nations, adaptation efforts will require the active engagement of the various levels of government within Arctic states.
2.5 The Future of the Climate Change Regime There is some reason to be optimistic that the international community will in the next few years finally rise to the climate change challenge. In addition to crucial negotiations on the long term allocation of responsibility for climate change mitigation and adaptation, the debate on what an adequate overall mitigation response might be also shows promise. There has been a very important and constructive discussion within the scientific community, governments in Europe, and some developing countries on what level of action is needed to meet the objective in Article 2 of the UNFCCC (Hare et al., 2004). This debate has been long overdue, but it will provide a very important context for the negotiations initiated in Bali. There appears to be considerable agreement that anything above a 2 degree increase in global average temperature is likely to violate the objective of Article 2 of the UNFCCC, to prevent dangerous human interference with the climate system. This, in turn, has been translated into estimates of global GHG concentrations of somewhere between 400 and 450 PPM, depending on the level of acceptable risk of overshooting the 2 degree target (Hare et al., 2004, p. 27). There is reasonable hope of achieving a sufficient level of consensus on these calculations for them to provide the adequacy context for the post 2012 negotiations. The final piece of this puzzle has been the fourth assessment report of the IPCC.15 Assuming there is a sufficient level of agreement on what might constitute an overall adequate effort on climate change mitigation after 2012, the main issue will be one of allocation. In this regard, much will continue to depend on EU leadership. A starting point for engaging developing countries will be for developed States to demonstrate that they have taken the lead on climate change mitigation. It has become clear that for most developed States outside Europe, domestic emission
15 The Fourth Assessment Report has been released in various
online: IPCC .
parts during the course of 2007, see
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reductions will be modest. A number of European States, however, have made considerable strides and are preparing for deep reductions. A second precondition for meaningful action post 2012 is leadership in developed states to set the bar high for future targets. Signs from a number of European States, including Germany,16 the UK (Grice, 2006; McSmith, 2006), and Sweden (Vidal, 2006) are very positive, in spite of concerns that with the recent expansion of the EU and changes in some governments, EU leadership might diminish. Most recently Germany announced a unilateral commitment to reduce its emissions to 40% below 1990 levels by 2020. An important question going forward is what level of commitment key developing States will be willing to accept. There are two categories of developing States that will be important to watch in this regard. States such as China, India, Brazil, and South Africa will be critical because their cumulative emissions are high. Because their per capita emissions, however, are still well below those of developed States, they will not be under significant pressure to take on binding emission reduction targets. Rather, the expectation will be that those countries will make some commitment to mitigation and more generally to pursuing a lower emissions development path in return for assistance with mitigation. The second group to watch will be the highly industrialised developing States. Members of this group would include South Korea, Singapore, Mexico, and some of the OPEC countries. Some of these States will be under considerable pressure to accept binding emission reduction targets, on the basis that their capacity to mitigate is comparable to current Annex I countries, and actually higher than some EITs included in Annex I.
2.6 Conclusion In conclusion, both observed and predicted future impacts of climate change on the Arctic region are more and more recognised by the international community. In particular, the ACIA and the third and fourth assessment reports of the IPCC have contributed greatly to the science of climate change and its impact on the Arctic region. In spite of the focus on the Arctic region in scientific climate change circles, however, it seems clear that the Arctic region has not been well served by the climate change regime to date. Mitigation efforts taken to date are clearly inadequate to prevent irreversible harm to ecosystems and human populations. There is some hope of more serious efforts on climate change mitigation to come, but it will likely be too late to prevent irreversible harm to the region. The impacts that may result from climate change
16 The
Coalition Agreement is generally strong in terms of the continuation of current German climate policy, except that it leaves the issue of the role of nuclear power open, online: BUNDESREGIERUNG http://www.bundesregierung.de/en/Federal-Government/-,12961/ Coalition-Agreement.htm.
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mitigation measures in the Arctic region are also not well addressed within the climate change regime. For example, it is left to Arctic states to ensure that renewable energy projects developed in the Arctic region, such as hydro, tidal or wind energy projects, are environmentally and socially sound. The focus on the impacts of response measures has been on impacts in developing countries. As the Arctic region is a relatively undeveloped region within some of the most developed states, the impacts of mitigation on this region has not been addressed within the international regime.17 Similarly, efforts to date on adaptation have also focused on developing countries and the international regime leaves adaptation needs and concerns of the Arctic region to individual Arctic states and regional institutions, perhaps on the assumption that the capacity and motivation to implement appropriate adaptation strategies exists at the national level. The lack of attention to Arctic concerns and needs leads to obvious questions about the adequacy of the representation of Arctic interests in the climate change regime. It seems clear that Arctic states have been dominated by southern needs and perspectives in their negotiating positions. Nation states more generally have not represented Arctic interests effectively in the climate change regime. Efforts by indigenous peoples for a direct and independent voice at the negotiating table have not been successful to date. The formal status of indigenous populations has been that of observers in the negotiation process. This has allowed indigenous organisations to host side events and on rare occasions to speak at formal plenary sessions, but has not given the Arctic region a direct voice at the negotiations. One place where indigenous knowledge and perspectives have become more influential is with respect to the understanding of the impacts of climate change on the Arctic region. Most notably, indigenous and traditional knowledge featured prominently in the ACIA in 2004 (Nilsson, 2007).
References Bachelder, A. (2000). Using credit trading to reduce greenhouse gas emissions. Environmental Law and Practice, 9, 281–298. Bradley, R., & Baumert, K. (2005). Growing in the greenhouse: Protecting the climate by putting development first. Washington, D.C.: World Resources Institute. Brown, C. (1997). Facilitating joint implementation under the framework convention on climate change: Toward a greenhouse gas emission reduction protocol. Environmental and Planning Law Journal, 14(5), 356–367. Brunn´ee, J. (2000). A fine balance: Facilitation and enforcement in the design of a compliance regime for the Kyoto Protocol. Tulane Environmental Law Journal, 13, 223–270. Cosbey, A., Murphy, D., Drexhage, J., & Balint, J. (2005). Which way forward? Issues in developing an effective climate eegime after 2012. Winnipeg, MB: International
17 An
example of a mitigation project with significant adverse impacts on the arctic region might be a large scale hydro project such as the Lower Churchill Project proposed for northern Labrador in Canada.
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Institute for Sustainable Development. Retrieved August 15, 2008, from http://www.iisd.org/ publications/pub.aspx?pno 741. Doelle, M. (2005). From hot air to action? Climate change, compliance and the future of international environmental law. Toronto: Carswell. Doelle, M. (2006). The cat came back, or the nine lives of the Kyoto Protocol. Journal of Enveronmental Law and Practice, 16, 261–288. Doelle, M. (2007). Global carbon trading and climate change mitigation in Canada: Options for the use of the Kyoto mechanisms. In S. Bernstein, et al. (Eds.), A globally integrated climate policy for Canada (pp. 179–202). Toronto: University of Toronto Press. Framework Convention on Climate Change (UNFCCC), 1992, 31 I.L.M. 849. Retrieved August 10, 2008, from http://unfccc.int/resource/docs/a/18p2a01.pdf. Grice, A. (2006, February 8). Seven years to save planet, says PM. The Independent. Hanafi, A. G. (1998). Joint implementation: Legal and institutional issues for an effective international program to combat climate change. The Harvard Environmental Law Review, 22, 441–508. Hare, W., & Meinshausen, M. (2004). How much warming are we committed to and how much can be avoided? PIK Report No. 93. Potsdam Institute for Climate Impact Research Intergovernmental Panel on Climate Change (IPCC). (2005). Carbon dioxide capture and storage summary for policy makers. IPCC Special Report by Working Group III. Kyoto Protocol to the Framework Convention on Climate Change, Kyoto, 10 December 1997, 37 I.L.M. 22 (1998). McSmith, A. (2006, January 27). Cameron helps launch climate change alliance. The Independent. Nilsson, A. (2007). A changing Arctic climate: Science and policy in the Arctic climate impact assessment. Linkoping: Lingkoping University Press. Stewart, R. B., Connaughton, J. L., & Foxhall, L. C. (2001). Designing an international greenhouse gas emissions trading system. Natural Resources and Environmental, 15, 160–164. Stewart, R. B., Anderson, D., Aslam, M. A., Eyre, C., Jones, G., Sands, P., Stuart, M., & Yamin, F. (2000). The clean development mechanism: Building international public-private partnerships under the Kyoto Protocol. UN Doc. UNCTAD/GD5/GF5B/Misc.7. Thomas, W. L., Basurto, D., & Taylor, G. (2001). Creating a favorable climate for CDM investment in North America. Natural Resources and Environmental, 15, 172–175. United Nations Framework Convention on Climate Change, Report of the conference of the parties on its seventh session, 29 October–10 November 2001, U.N. Doc. FCCC/CP/2001/13/Add.1 (Decisions 1/CP.7 – 14/CP.7), FCCC/CP/2001/13/Add.2 (Decisions 15/CP.7 – 19/CP.7), FCCC/CP/2001/13/Add.3 (Decisions 20/CP.7 – 24/CP.7), FCCC/CP/2001/13/Add.4 (Decisions 25/CP.7 – 39/CP.7 & Resolution 1/CP.7 – 2/CP.7). (Marrakesh Accords). Draft CMP decisions in Marrakesh Accords formally adopted at the first meeting of the Parties to the Kyoto Protocol in Montreal Retrieved August 15, 2008, from http://unfccc.int/2860.php. United Nations Framework Convention on Climate Change (UNFCCC). (2005a). 3/CMP.1 Modalities and procedures for a clean development mechanism as defined in Article 12 of the Kyoto Protocol. Retrieved August 15, 2008, from http://unfccc.int/2860.php. United Nations Framework Convention on Climate Change (UNFCCC). (2005b). 5/CMP.1 Modalities and procedures for afforestation and reforestation project activities under the clean development mechanism in the first commitment period of the Kyoto Protocol. Retrieved August 15, 2008, from http://unfccc.int/2860.php. United Nations Framework Convention on Climate Change (UNFCCC). (2005c). 13/CMP.1 Modalities for the accounting of assigned amounts under Article 7, paragraph 4, of the Kyoto Protocol. Retrieved August 15, 2008, from http://unfccc.int/2860.php. United Nations Framework Convention on Climate Change (UNFCCC). (2005d). 17/CMP.1 Good practice guidance for land use, land-use change and forestry activities under Article 3, paragraphs 3 and 4, of the Kyoto Protocol. Retrieved August 15, 2008, from http://unfccc.int/2860.php.
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United Nations Framework Convention on Climate Change (UNFCCC). (2005e). 18/CMP.1 Criteria for cases of failure to submit information relating to estimates of greenhouse gas emissions by sources and removals by sinks from activities under Article 3, paragraphs 3 and 4, of the Kyoto Protocol. Retrieved August 15, 2008, from http://unfccc.int/2860.php. United Nations Framework Convention on Climate Change (UNFCCC). (2005f). 27/CMP.1 Procedures and mechanisms relating to compliance under the Kyoto Protocol. Retrieved August 15, 2008, from http://unfccc.int/2860.php. United Nations General Assembly (UNGA). (1988). Resolution 43/53, 70th plenary meeting, 6 December 1988. United Nations General Assembly (UNGA). (1989). Resolution 44/206, and 44/207, 85th plenary meeting, 22 December 1989. United Nations General Assembly (UNGA). (1990). Resolution 45/212, 71st plenary meeting, 21 December 1990. Vidal, J. (2006, February 8). Sweden plans to be the world’s first oil-free economy. The Guardian. Watson, R. T., Albritton, D. L., Barker, T., Bashmakov, I. A., Canziani, & O., Christ, et al. (Eds.) (2002). Climate change 2001: Synthesis report. A contribution of Working Groups I, II and III to the Third Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge, UK: Cambridge University Press. Werksman, J. (1998). The clean development mechanism: Unwrapping the ‘Kyoto Surprise’. Review of European Community and International Environmental Law, 7, 147–158. Wiser, G. (1997). Joint implementation: Incentives for private sector mitigation of global climate change. Georgetown International Law Review, 9(2), 447–488. Wright, D. V. (2007). The clean development mechanism: Climate change equity and the southnorth divide. Berlin: VDM Verlag.
Chapter 3
The Climate Policy of the Arctic Council Timo Koivurova and Md. Waliul Hasanat
Abstract This chapter offers an overview of how Arctic-wide co-operation has developed from its early beginnings to the current Norwegian chaired Arctic Council. Since the Arctic Council is the only inter-governmental organisation managing Arctic issues, it is important to give the reader a sense of how the Arctic Environmental Protection Strategy (AEPS) was adopted in 1991, how the Arctic Council came into being in 1996, how the AC’s various working groups have undertaken their activities and how programmes and scientific assessments in the co-operation have progressed to date. This historical review of Arctic-wide co-operation will serve to introduce the reader to the co-operation process. The special focus of the chapter will be on how climate change policy has developed in this context. The final part of the chapter offers an evaluation of how Arctic wide co-operation has developed in general and especially how its climate policy has progressed.
3.1 Introduction An increasing number of articles are warning of various impacts of climate change in the Arctic (Kerr, 2006; Joughin, 2006; Bindschadler, 2006; Zimov, Schuur, & Stuart Chapin, 2006; Rignot & Kanaguratnam, 2006; Foley, 2005). Partly as a result of reduced sea ice, the region seems to be on the verge of a new development era. Increased accessibility will likely result in an expansion of oil and gas, minerals, and fisheries resource extraction, as well as expansion of shipping and tourism operations. All of these commercial activities are accompanied by significant environmental, social and cultural issues. It would only seem natural to expect that the inter-governmental forum established in 1996 between the eight Arctic states to protect the Arctic environment and promote sustainable development in the region would have started to prepare T. Koivurova (B) The Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Lapin yliopisto, Arktinen Keskus, PL 122, 96101, Rovaniemi, Finland e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 3,
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policies to counter these vast challenges. To some extent this is the case as will be shown in this article. Yet, overall, the problems related to the structure of the Arctic Council hinder its role in developing effective climate mitigation and adaptation strategies for the region. The main goal of this chapter is to examine in detail what the Arctic Council has done in the field of climate policy. The limits to the Council’s climate policy are to be found in its general structure, and hence it is important to study the way the Arctic Council functions. Since the Arctic Council is a direct outgrowth of the Arctic Environmental Protection Strategy (AEPS) co-operation between the eight Arctic states, which began as early as 1991, it is useful to give a brief account of this process as well. The article thus starts from a general account of the Arctic wide co-operation to this date, and then moves on to examine in more detail what the Arctic states and other actors have done in the field of climate change during the AEPS and the Arctic Council co-operation.
3.2 Overview of the Development of Arctic Intergovernmental Co-Operation The initial plan for Arctic-wide cooperation was launched in 1987 in Murmansk by the Soviet Union’s then-Secretary-General Michail Gorbachev. The Soviet leader proposed that the Arctic states initiate cooperation in various fields, one being protection of the Arctic environment.1 This idea was furthered when Finland convened a conference of the eight Arctic states – Canada, Denmark, Finland, Iceland, Norway, Sweden, the Soviet Union and the United States – in Rovaniemi in 1989 to discuss the protection of the Arctic environment. After two additional preparatory meetings in Yellowknife, Canada, and Kiruna, Sweden, the eight Arctic states, as well as other actors, met again in Rovaniemi in 1991 to sign the Rovaniemi Declaration (The Declaration on the protection of the Arctic Environment [Rovaniemi Declaration], 1991), by which they adopted the Arctic Environmental Protection Strategy (AEPS) ([AEPS], 1991), signalling the commencement of the first phase of the Arctic cooperation (AEPS cooperation)2 . The second phase began with the signing of the Arctic Council Declaration and continues to this day.
1 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 be given great significance for all mankind; the countries of the North cooperate in matters of environmental protection; and the Northern Sea Route be opened by the Soviet Union to ice-breaker escorted passage. For an analysis, see Rothwell (1996, pp. 229–231). 2 On the negotiation process see Rothwell (1996, pp. 229–242).
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3.2.1 The First Phase of the Arctic Cooperation Process: the AEPS Cooperation The AEPS contained very ambitious objectives, such as “[t]o identify, reduce, and, as a final goal, eliminate pollution” (AEPS, 1991, s. 2.1.(v)). The guiding principles were also laid down in very ambitious terms (Ibid., s. 2.2.). Six pollution problems were chosen as priority areas: persistent organic contaminants (Ibid., ss. 3.1., 4.1., 5.1.), oil pollution (Ibid., ss. 3.2., 4.2., 5.2.), heavy metals (Ibid., ss. 3.3., 4.3., 5.3.), noise (Ibid., ss. 3.4., 4.4., 5.4.), radioactivity (Ibid., ss. 3.5, 4.5, 5.5.), and acidification (Ibid., ss. 3.6, 4.6, 5.6). After briefly describing each of the six problems, the AEPS went on in section 4 to review the international mechanisms – international treaties and other normative instruments – for the protection of the Arctic environment in regard to each problem, after which section 5 took up the AEPS action plans to combat each of the identified problems. The AEPS also contained obligations requiring the Arctic states to establish working groups specialised in certain aspects of pollution problems in the region. It laid the basis for establishing working groups for each of the Arctic Monitoring and Assessment Program (AMAP) (Ibid., s. 6), Protection of the Arctic Marine Environment (PAME) (Ibid., s. 7), Emergency Prevention, Preparedness and Response (EPPR) (Ibid., s. 8), and Conservation of Arctic Flora and Fauna (CAFF) (Ibid., s. 9). Each Arctic state was required to establish a national agency responsible for coordinating Arctic cooperation and to then notify other states once this had been done (Ibid., s. 9.1(vii)).3 The AEPS emphasised the national conditions under which the cooperation was to continue: The countries agree that the terms and conditions of the cooperation and exchanges provided for in this section will be subject to the laws and regulations of the countries . . . Each country will make its best efforts to provide resources adequate to carry out its responsibilities under this section. It is understood that the ability of each country to carry out activities is subject to the availability of funds, and that countries will seek to ensure long-term funding for necessary projects.(Ibid., s. 9.1(viii)–(ix))
The Arctic states also agreed “to hold regular meetings” to assess the progress made and to “coordinate actions [that will] implement and further develop the Arctic Environmental Protection Strategy” (Ibid., ss. 10, para 1, 10 (i).) Even though the Senior Arctic Affairs Officials (SAAOs), afterwards the Senior Arctic Officials (SAOs), were not explicitly mentioned in the AEPS, this form of contact developed informally after the 1991 Rovaniemi Ministerial Meeting and was recognised by the 1993 Nuuk Ministerial Meeting. The addition of SAAO gave more permanency to the AEPS cooperation structure through the introduction of designated high-level officials responsible for monitoring and providing guidance in the implementation of the AEPS. Paragraph 5 of Section 10 of the AEPS enumerated the terms of reference of AEPS cooperation, which provided the cooperation process with a broad 3 S. 9.1(vii): “By October 1991 each Country will identify to the others its national agency designated to coordinate the cooperation envisaged by this section.”
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mandate for protecting the Arctic environment (Ibid., s. 10, para. 5).4 Paragraphs 3 and 4 established the rules for the participation of non-Arctic states: the three international organisations of the Arctic indigenous peoples were accorded observer status (Ibid., s. 10, para. 4),5 and the criteria for observer status in the AEPS cooperation was outlined (Ibid., s. 10, para. 3).6 The decision-making procedure was not made explicit in the AEPS; the parties only agreed on the next meeting’s time and place. The first ministerial-level follow-up meeting to the AEPS cooperation was held in 1993 in Nuuk, Greenland, where the Declaration on Environment and Development (Nuuk Declaration, 1993)7 was signed by representatives of the eight Arctic states. The AEPS institutional structure was extended somewhat at the 1993 Nuuk Ministerial Meeting. The working-groups’ mandates were elaborated and a new Task Force on Sustainable Development and Utilisation (TFSDU) was established (Nuuk Declaration, 1993, art. 2).8 Importantly, the Danish government promised to establish a secretariat to enhance the participation of the representatives of the organisations of Arctic indigenous peoples to the work of the AEPS cooperation. This secretariat eventually became the Arctic Council’s Indigenous Peoples Secretariat (IPS) (IPS website).9 The 1993 Nuuk Ministerial Meeting was clearly influenced by the 1992 Rio Conference on Environment and Development (Nuuk
4 S. 10, para 5: “The Meetings on the Arctic Environment shall serve to: (i) identify and coordinate actions to implement and further develop the Arctic Environmental Protection Strategy; (ii) initiate cooperation in new fields relevant to the environmental protection of the Arctic; (iii) make necessary recommendations in order to protect the Arctic environment; (iv) improve existing environmental regimes relevant to the Arctic; and (v) assess and report on progress on actions agreed upon”. 5 S. 10, para. 4: “In order to facilitate the participation of Arctic indigenous peoples the following organizations will be invited as observers: the Inuit Circumpolar Conference, the Nordic Saami Council and the U.S.S.R. Association of Small Peoples of the North”. 6 S. 10, para. 3: “The decision to invite observers should be based on a pragmatic and functional evaluation of their involvement in and contribution to Arctic environmental questions”. 7 The Preamble of the Nuuk Declaration acknowledges the Rio Conference as follows: “Recognizing the importance of applying the results of the United Nations Conference on Environment and Development to the Arctic region.” For information on the Rio Conference and links to related documents, see International Institute for Sustainable Development (IISD) Two documents from the Rio Conference that are often referred to are the Rio Declaration (1992) and Agenda 21. 8 The idea of establishing the TFSDU was to reaffirm the commitment of ministers to sustainable development and sustainable use of renewable resources. 9 The AEPS Nuuk Report (1993, September 16) includes the statement made by the Minister for the Environment of Denmark in its Annex: “The Danish Government and the Greenland Home Rule Government have noticed the recommendations of the indigenous peoples’ organizations regarding a special program area within the AEPS to address all issues related to the participation of indigenous peoples. . .Government of Denmark, in cooperation with the Greenland Home Rule Government, is pleased to announce that we can support this recommendation not only verbally, but also by offering to establish a small Secretariat for this purpose in Denmark.” (Auken, 1993, Annex to the Nuuk Report, 1993).
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Declaration, 1993),10 as evidenced by the ambitious normative guidance outlined in the Nuuk Declaration. The second follow-up meeting of the AEPS cooperation took place in Inuvik, Canada, in March 1996, where the Inuvik Declaration was adopted (Inuvik Declaration, 1996). At the time, negotiations to establish the Arctic Council were already underway,11 and the SAAOs were given instructions to prepare for the establishment of the Arctic Council.12
3.2.2 The Second Phase of the Arctic Cooperation Process: the Arctic Council The Arctic Council was established in September 1996 in Ottawa, Canada. The Arctic states signed the Arctic Council Declaration (Joint Communiqu´e, 1996) and issued a joint communiqu´e to explain the newly created body (Ibid.).13 However, the integration of the AEPS cooperation process into the Arctic Council did not take place immediately. The final AEPS Ministerial Meeting took place in Alta, Norway in June 1997, where the Alta Declaration was adopted (The Alta Declaration, 1997).14 The establishment of the Arctic Council amended the forms of Arctic cooperation previously based on the AEPS. The Arctic Council Declaration substantially extended the AEPS cooperation’s terms of reference, which had been focused mainly on protecting the Arctic environment. The Arctic Council’s mandate was defined broadly to cover “common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic” (Joint Communiqu´e, 1996, art. 1, para. a). In principle, this yielded a very large mandate for the Council since “common issues” could include almost any international policy issue, except for “matters related to military security” (Ibid., art. 1, para. a, accompanying footnote). There were two pillars supporting the Council’s mandate: protecting the environment and sustainable development. Environmental cooperation was now considered
10 Supra
note 7.
11 See e.g., the Inuvik Declaration’s statement that “[w]e are fully committed to the earliest possible
establishment of the Arctic Council” (Inuvik Declaration, art. 15). Inuvik Declaration states: “The SAAOs, with the assistance of the Permanent Participants, will also undertake to develop revised Terms of Reference for SDU [Task Force on Sustainable Development and Utilization] and an initial workplan for the Arctic Council’s sustainable development work, to be presented for discussion to the Arctic Council Senior Arctic Officials.” (Inuvik Declaration, art 6) Hence, the plans for the Arctic Council were clearly well advanced since the terms “Permanent Participant” and “Senior Arctic Officials” are used in the documents establishing the Arctic Council. 13 On the history of the negotiation process, see Scrivener (1999). 14 The SAAO Reported to the Ministers: “This is the final SAAO Report to Ministers before the integration of AEPS activities into the newly established Arctic Council, whose first meeting will take place in the fall of 1998”. See SAAO Report (1997, para. 4). 12 The
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to be the principal focus, with the four working groups of AEPS cooperation continuing as such under the umbrella of the Arctic Council (Ibid., art. 1, para. b). A new working group called the Sustainable Development Working Group (SDWG) was established to address the mandate’s other focus of cooperation on sustainable development (Ibid., art.1, para c).15 The 1996 Declaration elaborated the rules on participation in the Arctic Council. It provided for three categories of participants: Members, Permanent Participants and Observers. In section 2, “Member” was defined to include only the eight Arctic states, and the criteria for observers were laid down (Ibid., art. 3.).16 The three organisations that represented the Arctic indigenous peoples as observers in the AEPS were made Permanent Participants (Ibid., art. 2).17 In addition, the Arctic Council declaration specified the criteria necessary to be granted Permanent Participant status and the procedure used to decide that status (Ibid., art. 2, para. 2).18 The indigenous peoples’ secretariat, established under the AEPS, was to continue under the framework of the Arctic Council (Ibid., art. 8). The decision-making procedure developed in AEPS cooperation was made explicit in the Arctic Council Declaration. Section 7 provides: “Decisions of the Arctic Council are to be by consensus of the Members”, which was to be undertaken only after “full consultation” (Ibid., art. 2)19 with the Permanent Participants. Although Permanent Participants do not have formal decision-making power, they are in a position to exert much practical influence on the decision-making of the Council. The first meeting of the Arctic Council took place in Iqaluit, Canada in September 1998 wherein a declaration was also adopted (Iqaluit Declaration, 1998, art. 23). As the first meeting of the Arctic Council, the practical aspects of the functioning of the Council figured prominently. For example, the Arctic Council Rules
15 Art.1, para c reads: “The Article 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.” 16 Art.1, para c reads: “The Article 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.” 17 Article 2 of the Arctic Council 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.” As a result of the succession of Russia to the U.S.S.R., the former U.S.S.R.’s Association of Small Peoples of the North was changed to the Association of Indigenous Minorities of the North, Siberia, and the Far East of the Russian Federation, which has since changed and is now named the Russian Association of Indigenous Peoples of the North. 18 Art. 2, para. 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 (Ibid., art. 7). Article 2 further states: “the number of Permanent Participants should at any time be less than the number of members.” 19 This is significant because organizations of indigenous peoples are often not given a voice in the decision-making procedures of international bodies.
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of Procedure ([Rules of Procedure], 1998, arts. 3–25)20 and Arctic Council Terms of Reference for a Sustainable Development Program (1998, art. 1) were adopted, as required by the Arctic Council Declaration (Joint Communiqu´e, 1996, art. 1, para. c).21 In October 2000, the second Ministerial Meeting of the Arctic Council took place in Barrow, Alaska, where the Barrow Declaration (2000) was signed. By this time, the meeting participants were able to note that the “Arctic Council. . .has successfully taken on the responsibilities of the Arctic Environmental Protection Strategy” (Barrow Declaration, 2000, Preamble), although some problems remained as to the coordination of activities (Ibid., art. 19).22 The 2002 Ministerial Meeting in Inari, Finland placed high emphasis on the Arctic Council’s role as an international partner in global and regional environmental protection efforts (Inari Declaration, 2002, arts. 9–11: “Arctic Council as a Partner in International Cooperation”). The Inari Declaration noted that AMAP reports had influenced regional and global treaty negotiations, especially those of the UN-ECE Aarhus Protocol on Persistent Organic Pollutants (POPs) and Heavy Metals and the global Stockholm Convention on POPs (Ibid., art. 5).23 The 2004 Ministerial Meeting in Reykjavik, Iceland was dominated by discussion of policy and other measures based on the results of two major scientific endeavours of the Arctic Council, those of the Arctic Climate Impact Assessment (ACIA) and the Arctic Human Development Report (AHDR). The Reykjavik Ministerial Meeting discussed the upcoming International Polar Year (IPY) 2007–200824 and the role of the Arctic Council. The meeting outlined the role of the Arctic Council as providing political support for the IPY, but also decided to develop Arctic
20 The Rules of Procedure of the Arctic Council organizes the work in the Council in a detailed and
systematic manner, a state of affairs, which was lacking in AEPS cooperation. The Rules cover topic areas as how to convene different types of meetings under the Council, the launching process for programs and projects, and the function of subordinate bodies. 21 Art. 1, para c reads: “The Arctic Council is established as a high level forum to. . .adopt terms of reference for, and oversee and coordinate a sustainable development program.” Article 6 of the Arctic Council Declaration requires: “The Arctic Council, as its first order of business, should adopt rules of procedure for its meetings and those of its working groups.” 22 Article 19 reads: “Take note that as the Arctic Council has evolved and taken over the structures established under AEPS, some overlap of functions has occurred among the new and existing institutional structures of the Council...” [emphasis in original]. 23 The Ministerial Meeting also welcomed, in article 5, the UNEP’s global assessment of mercury and its international efforts to outline and consider policy options to counter this threat, and it agreed to intensify the Council’s efforts to achieve global cooperation on this issue. It also noted the Arctic Council project on mercury in this context (Protocols to the Convention, n.d.; Stockholm Convention, 2001). 24 This IPY is fourth of its kind, the most recent being organized fifty years ago (1957–1958). It is, of course, not a year, but years, and it is typically not the same as those named (2007–2008). The IPY will start in March 2007 and will end in March 2009, enabling summer field seasons in both poles. The purpose of the IPY is to stimulate cooperation and coordination of polar research and to increase the research’s visibility and awareness (International Polar Year website).
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Council proposals for the IPY Joint Committee (Reykjavik Declaration, 2004, part “Circumpolar and International Cooperation on Sustainable Development”). The 2006 Ministerial Meeting in Salekhard, Russia crystallised further its agenda (Salekhard Declaration, 2006). The main areas of regional cooperation emphasised were long-range pollution, climate change, pollution prevention and reduction of hazardous substance releases, protection of the marine environment and conservation of biological diversity. Notice was also given that a process would be initiated to examine the Arctic Council’s organisation with a view to improving its effectiveness and efficiency. A secretariat in Tromso for the Norwegian, Danish, and Swedish chairmanships from 2006 to 2012 was also confirmed (Norwegian, Danish and Swedish [Common Objectives], part “Management Issues”). The Salekhard Declaration again highlighted the difficulties in ensuring adequate financing for the Arctic Council. The Salekhard meeting noted that the Arctic Council Project Support Instrument (PSI) was not yet operational and indicated that the innovative funding initiative might be terminated at the Sixth Ministerial Meeting if the initiative was not operational at that time. Ministers reiterated invitations to Arctic Council Members, Observers and others to pledge contributions to the PSI and “emphasize[d] the need for reinforcing efforts to finance circumpolar cooperation” (Salekhard Declaration, 2006, p. 8).25
3.2.3 The Arctic Council’s Working Groups The main work of the Arctic Council has taken place within the six working groups of the Council.26 The representatives for the working groups have mainly come from the various national ministries and other government bodies of the Council Members and the framework organisations of Arctic indigenous peoples, but the programmes and projects have had much more varied structure of representation. The main focus
25 Project
Support Instrument is a mechanism to enhance the process of financing for prioritized Arctic Council Projects. The Arctic Contaminants Action Program (ACAP) proposed to establish a trust fund to facilitate AC project financing. The aim of PSI is to ensure swift and timely response to the individual projects to overcome differences in budget years and schedules for release of money between Arctic states, permanent participants, observers and specific project financing competence. The PSI is a voluntary and non-exclusive mechanism, a financial arrangement that includes grants and revolving instruments within existing modus operandi of the AC. The Council appointed NEFCO as the fund manager. The PSI has progressed to some extent although some AC members are still hesitant in contributing to the process. See the Report of Senior Arctic Officials to Ministers at the Fourth Arctic Council Meeting (2004, pp. 10–12). See also Nordic Environmental Finance Corporation ([NEFCO], Agenda item 12.3), which prepared historical summary of PSI to the Meeting of Senior Arctic Officials in Svolvaer, Norway, 23–24 April 2008. 26 The Arctic Council is empowered, through its Rules of Procedure, to establish Working Groups/Task Forces (Rules of Procedure, 1998, Part IV) and programs and projects (Ibid., Part III, Annex I). Working groups and task forces are the more permanent bodies of the Arctic Council, whereas the programs and projects serve temporary functions and have a more varied structure of representation. If programs and projects evolve into more seemingly permanent bodies, a ministerial meeting may elevate their status to that of a working group or task force.
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of this part of the article is on how the Arctic Council’s established working groups have conducted their works. This can only be done in a very cursory manner, as a plethora of activities have occurred within each of the working groups. 3.2.3.1 The Arctic Monitoring and Assessment Program (AMAP) In contrast to Antarctic environmental cooperation, Arctic cooperation commenced its work by first assessing existing and future environmental problems through the work of a specific task force and later working group, the Arctic Monitoring and Assessment Program (AMAP), before any environmental protection measures were concluded.27 Thus, from the beginning, AMAP has been the core activity of Arctic cooperation. The AMAP Task Force, established by the 1991 AEPS changed to a working group in 1993. The primary objective for the AMAP, as defined in 1991, was to measure levels of anthropogenic pollutants and to assess their effects in relevant component parts of the Arctic environment. More specifically, the AMAP was created to make integrated assessment reports on Arctic ecosystems status and trends, to identify possible causes for changing conditions, detect emerging problems and their possible causes, and evaluate the potential risks to Arctic ecosystems, including indigenous peoples and other Arctic residents. This work provides the AMAP with a basis for making recommendations of actions that are required to reduce risks to Arctic ecosystems (AEPS, 1991, s. 6.1). AMAP assessments are based upon published scientific data that is obtained not only from AMAP’s own monitoring programs and traditional knowledge, but also from existing national and international monitoring and research programs. Each Arctic country is required to define its National Implementation Plan (NIP) to address and incorporate AMAP’s recommendation at a national level. During the first phase of its functioning, AMAP was directed to establish comprehensive monitoring programmes in relation to its priority fields (persistent organic chemicals, heavy metals and radionuclides). The priority for the second phase of the AMAP’s work, as guided by the 1996 Inuvik meeting, was the finalisation of the State of the Arctic Environment Report (SOAER) by early 1997, which was presented to the final AEPS cooperation meeting in Alta (Alta Declaration, 1997, Preamble).28 This report was the first important outcome of AMAP’s work, as it has provided an Arctic perspective to decision-makers, regionally and globally. For instance, the AMAP report showed that POPs end up in the Arctic because
27 For
a comparison of the two polar regimes, in particular their capacities in the field of environmental protection, see Koivurova (2005). 28 The information in State of the Arctic Environment Reports (SOAERs) is presented in a clear and understandable manner for non-scientific audiences such as the general public, decision-makers, environmental managers, and schools. Another type of AMAP report, Arctic Assessment Reports (AARs), being more technical as well as extensively referenced are known as scientific reports. Both SOAERs and AARs can be downloaded from the Arctic Monitoring and Assessment Programme (AMAP) website at amap.no.
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of the prevailing wind patterns, even though these substances are only marginally produced in the Arctic region. The finalisation of the Arctic Pollution 2002 Report of the AMAP (Arctic Monitoring and Assessment Programme [AMAP], 2002) was appreciated by the 2002 Inari Ministerial Meeting, which considered the implications of the report’s findings as they pertained to the Arctic Council policies at both the national and international levels (Inari Declaration, 2002, art. 5). The Arctic Pollution 2002 Report documented increasing mercury levels in some parts of the Arctic, and the Arctic Council agreed to address this problem through global cooperation (Ibid.). The 2004 Reykjavik Ministerial Meeting requested the AMAP to continue its work and deliver assessments of the oil and gas industry’s impact on and acidification of the Arctic by 2006, and to be prepared to propose effective measures to counter the threats identified in these assessments. It approved the AMAP’s Strategic Plan 2004+ (AMAP, 2004) and welcomed the efforts of the AMAP and ACAP to address the emerging chemical contaminants problem. 3.2.3.2 The Protection of Arctic Marine Environment (PAME) At the 1991 Rovaniemi meeting, the eight Arctic states committed themselves to take preventive and other measures, directly or through competent international organisations, to protect the Arctic’s marine environment from various sources of pollution (Rovaniemi Declaration, 1991). The AEPS established priorities related to this commitment, to not only take preventive measures directly or through competent international organisations, but also to follow the relevant provisions of the UN Convention on the Law of the Sea ([UNCLOS], 1982), to maintain international standards regarding the discharges of pollutants, to take part in international cooperation to fortify the recognition of the sensitivity of ice-covered parts of the Arctic Ocean and to ensure the protection of the Arctic marine environment from accidental pollution (AEPS, 1991, s. 7). The Protection of Arctic Marine Environment (PAME) working group was established at the 1993 Nuuk Ministerial Meeting to implement the priority areas identified in the AEPS. Clearer priorities for the work of PAME were identified by the 1996 Inuvik Ministerial Meeting. PAME was asked to develop both a Regional Programme of Action for the Protection of the Arctic Marine Environment from Land-based Activities (RPA) and guidelines for offshore petroleum activities. The 1998 Iqaluit Ministerial Meeting mandated PAME to assess the current and potential shipping activities in the Arctic in light of what, if any, additional Arctic shipping measures were required. This included working on an International Code of Safety for Ships Operating in Polar Waters (Polar Code) under the auspices of the International Maritime Organization (IMO) (Iqaluit Declaration, 1998, art. 26).29 29 Guidelines
of Ships Operating in Arctic Ice-Covered Waters were adopted by IMO as recommendatory provisions. Canada was the leading country to prepare the Guidelines which should have afforded the Arctic Council some opportunity for close observation of the process See IMO MSC/Circ. 1056, MEPC/Circ. 399 (23 December 2002).
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The 2002 Inari meeting requested PAME to develop a strategic plan for protection of the Arctic marine environment, which would be used to lay a foundation for a more coordinated and integrated approach for managing the challenges of the Arctic coastal and marine environments (Inari Declaration, 2002, art. 5). The Inari Ministerial Meeting also endorsed the revised Arctic Offshore Oil & Gas Guidelines, first developed by PAME in 1997 (Arctic Council Protection [PAME], 2002).30 3.2.3.3 The Emergency Prevention, Preparedness and Response (EPPR) The Emergency Prevention, Preparedness and Response (EPPR) priority was established by the 1991 AEPS and was later to become one of the working groups of the AEPS cooperation and the Arctic Council. The AEPS identified the initial priorities for the EPPR as including an exchange of information on all relevant issues in the field of emergency prevention and response, and the establishment of a system for early notification in the event of significant accidental pollution or an imminent threat of such an incident (AEPS, 1991, s.8.1 (i)–(x)). The priorities for the EPPR were clarified and expanded in the Inuvik meeting and included completion of the Arctic Guide for Emergency Prevention, Preparedness and Response. Further development of preventative, mitigation and response measures for oil and gas accidental releases in the Arctic – a field of policy that overlaps with some of the other working groups – was also named as a priority. Other priorities established were the preparation of an analysis of existing accident reporting systems’ effectiveness and the refining of the Risk Analysis on Environmental Threats to the Arctic (Inuvik Declaration, 1998, art. 6, para. 6). The Inuvik Ministerial Meeting also requested the EPPR analyse the adequacy and effectiveness of existing international agreements and arrangements in the Arctic. In 2000, the EPPR Working Group finalised an analysis of the adequacy and effectiveness of agreements and arrangements relevant to land-based maritime or nuclear accident responses.31 The 2004 Reykjavik Ministerial Meeting directed the EPPR to include natural disasters within its activities. The Reykjavik meeting also noted the completion of the Shoreline Cleanup Assessment Technique (SCAT) Manual (Reykjav´ık Declaration, 2004, p. 5: “Emergency Prevention Preparedness and Response”).
30 The Offshore Oil & Gas Guidelines are a revised form of the Guidelines as they were first adopted by the Alta meeting in 1997. The revision was based on comments from a variety of representatives, including Arctic governments, regional governments, non-governmental organizations, indigenous groups, industries, and members of the scientific community. 31 The Arctic Council, in its Barrow Declaration (2000, art. 10), endorsed the main conclusion of the analysis, namely: “the international Conventions and instruments currently in force, adopted or still under preparation appear to cover the present needs for Arctic cooperation in the field of prevention of, preparedness for and response to environmental emergencies on land or sea” (VanderZwaag, 2000, p. 265).
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3.2.3.4 The Conservation of Arctic Flora and Fauna (CAFF) The Conservation of Arctic Flora and Fauna (CAFF) Working Group had its origins in the 1991 AEPS, which recognised, in light of scientific and traditional knowledge, that economic development projects, long-range movement of pollutants, and degradation of habitats posed grave threats to Arctic flora and fauna (AEPS, 1991, s.9). The AEPS noted that most existing agreements protecting flora and fauna had no special Arctic focus. This was especially problematic owing to the Arctic indigenous peoples’ traditional livelihoods and cultures. Hence, there was an identified need for a forum in which scientists, indigenous peoples, and conservation activists could exchange data and information relating to shared species and habitats. The end result was the establishment of CAFF as a working group in 1992, which was later recognised in the 1993 Nuuk Declaration (Nuuk Declaration, 1993, art. 2). At the 1996 Inuvik meeting, various priorities for CAFF were identified which included the development of a Circumpolar Protected Area Network (CPAN) (Conservation of Arctic Flora and Fauna [CAFF], 1996). The Inuvik Ministerial Meeting also acknowledged the important link to the UN Convention on Biological Diversity (1992) by urging CAFF to develop a draft Arctic strategy relating to the Convention’s goals. By the time of the 1998 Iqaluit meeting, the focus of CAFF had broadened. The Iqaluit Ministerial Meeting endorsed CAFF’s Strategic Plan for the Conservation of Arctic Biological Diversity as an overall framework for CAFF activities and its timely implementation through the creation of more detailed work plans (CAFF, 1998). It also welcomed CAFF’s intention to prepare an overview of the status and trends in changes to ecosystems, habitats and species in the Arctic. Moreover, CAFF was urged to identify what elements would be needed for a program to monitor circumpolar biological diversity and to assess, in collaboration with AMAP, the effects of climate change and UV-B radiation on Arctic ecosystems (Iqaluit Declaration, 1998, arts. 20–21). 3.2.3.5 The Sustainable Development Working Group (SDWG) The Sustainable Development Working Group (SDWG) had different priorities as compared to its predecessor AEPS Task Force on Sustainable Development and Utilization (TFSDU) (Nuuk Declaration, 1993, art. 2.).32 The Terms of Reference for a Sustainable Development Program, which were adopted at the 1998 Iqaluit meeting, only outlined a procedure by which proposals for sustainable development projects would be adopted (Ibid., art. 1). The Sustainable Development Framework Document (Framework Document, 2000), adopted by the 2000 Barrow Ministerial Meeting (Barrow Declaration, 2000, art. 1), identified seven priorities for the Sustainable Development Program:
32 The
idea of establishing the TFSDU was to reaffirm the commitment of ministers to sustainable development and sustainable use of renewable resources.
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Health issues and the well-being of people living in the Arctic Management of natural, including living, resources Sustainable economic activities and increasing community prosperity Education and cultural heritage Children and youth Management of natural, including living, resources; and Infrastructure development (Framework Document, 2000).
The SDWG, whose secretariat has been located in Ottawa, Canada since 2003, has a number of on-going projects that related to the seven priorities.33 To assist the work of the SDWG, the Arctic Human Development Report ([AHDR], 2004) was published in 2004. The AHDR identified major gaps in knowledge, including in the areas of cumulative changes in cultural identity and social well-being, industrial influences on community viability and governance arrangements, and innovations in the Arctic. 3.2.3.6 Arctic Contaminants Action Program (ACAP) The 2000 Barrow ministerial endorsed the Arctic Council’s Action Plan to Eliminate Pollution in the Arctic (ACAP) (Barrow Declaration, 2000, art. 2), which has recently turned into the sixth working group of the Council – Arctic Contaminants Action Program (ACAP), a separate programme focused on pollution prevention and remediation. The priorities of ACAP for its first phase were selected on the basis of the findings by AMAP related to POPs, heavy metals, radioactivity, and the depletion of the ozone layer (Arctic Council Action Plan [ACAP], 2001, p. 2). Ongoing projects include among others: Multilateral Cooperative Project on Phase-out of PCB Use and Management of PCB-contaminated Wastes in the Russian Federation, Reduction/Elimination of Dioxins and Furans Released in the Russian Federation, and Reduction of Atmospheric Mercury Releases from Arctic States.
3.3 Arctic Co-Operation and Climate Change It is only recently that climate change has become a major topic in Arctic cooperation. However, it has been expressed as a concern from the beginning of the AEPS. Presently, climate change dominates the work of the Arctic Council in many ways, although there are clear limits as to what the Council can do in this policy area, given the general institutional limitations of the forum.
33 Topics
include: the Future of Children and Youth in the Arctic, Survey of Living Conditions in the Arctic, Emerging Infectious Diseases, and Freshwater Fishery Management in the Barents Region For the complete list, see Arctic Council website at www.arctic-council.org.
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3.3.1 Climate Change Under the AEPS AEPS addressed the problem of climate change as early as 1991 but not as one of the priority concerns,34 for which special measures of protection were designed. Instead the AEPS adopted as one of its principles “respect [for] the Arctic’s significance for and influence on the global climate” (AEPS, 1991, s 2.2(iii)(c)). Climate change was understood at the time as a problem to be addressed by other already existing international mechanisms tackling the depletion of ozone layer and global warming (Ibid., s. 3). This is not, however, the whole story. The AEPS did acknowledge climate change as a major threat to the Arctic environment (Ibid., s. 6)35 and envisaged a close working relationship between its AMAP and the several international climate change programs to exchange relevant data (Ibid.).36 In 1993, the Nuuk ministerial mandated AMAP to engage in climate change research (Report of the Nuuk, 1993, “Arctic Monitoring and Assessment Programme (AMAP)”). Furthermore, in 1996, the Inuvik Ministerial Meeting confirmed the AEPS support to the United Nations Framework Convention on Climate Change (UNFCCC) (Inuvik Declaration, 1996, Preamble). The same ministerial also requested AMAP to regularly review the integrated results of existing programs dealing with climate change, with a view to identifying gaps in the scope of the monitoring and research under these forums and to ensuring that specific issues related to the Arctic region are placed on the agenda of the appropriate international bodies.37 AMAP responded to this request by including climate change in its 1997 State of the Arctic Environment Report,38 which prompted the next ministerial in Alta to encourage AMAP to continue the
34 As
studied above, the priority areas were persistent organic contaminants, oil pollution, heavy metals, noise, radioactivity, and acidification. 35 S. 6 reads: “Two of the most significant threats to the present Arctic environment may come from climate change, induced by global warming, and the effects of stratospheric ozone depletion.” (AEPS, 1991). 36 S. 6 reads: “Programs to detect and determine the causes and effects of climate change and ozone depletion are to a large extent being developed by other international groupings and in other fora. It is important for AMAP to be aware of these programs and to develop links with them from an Arctic perspective in order to encourage and facilitate an Arctic component in climate programs. Data obtained for assessing climate change will provide important inputs to the AMAP dataset. In turn, AMAP data will be relevant to -climate change programs in the Arctic.”[sic].(Ibid.). 37 The Report of the Nuuk Ministerial Meeting includes: “Noting the existing global cooperation on climate change and stratospheric ozone programs, the Ministers requested AMAP to regularly review the integrated results of these programs with a view to identifying gaps in the scope of the monitoring and research under these fora and with a view to ensuring that specific issues related to the Arctic region are placed on the agenda of the appropriate international bodies.” (Arctic Council website at www.arctic-council.org/en/main/infopage/197. Retrieved July 10, 2008). 38 The report was entitled ‘Arctic Pollution Issues: A State of the Arctic Environment Report’ and was presented to the fourth and final Ministerial Meeting of the AEPS (AMAP, 1997). This was developed into a more comprehensive ‘AMAP Assessment Report: Arctic Pollution Issues’ that was presented to the first ministerial of the Arctic Council in 1998 (AMAP, 1998).
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monitoring process and to assess the impacts of climate change on the Arctic ecosystem (Alta Declaration, 1997, para. 9.).39
3.3.2 Climate Change Under the Arctic Council After establishment of the Arctic Council, an intensification of research on climate change in the Arctic was observed. Before the first 1998 ministerial meeting of the Arctic Council, the AMAP and CAFF working groups jointly organised a workshop on climate change (AMAP/CAFF Workshop, 1998). The 1998 Iqaluit ministerial expressed its appreciation of the activities of CAFF/AMAP in the field of climate change and their joint intention to monitor and assess the impacts of climate change on the Arctic ecosystem (Iqaluit Declaration, 1998, para. 21).40 The International Arctic Science Committee (IASC) had also initiated a number of projects and planning activities on the impacts of climate change in the Arctic from the mid 1990s onwards, which finally lead IASC to co-operate with CAFF, AMAP and permanent participants of the Arctic Council, these eventually forming the Assessment Steering Committee (ASC) (Arctic Climate Impact Assessment [ACIA], 2005a, p. 6). After two workshops in 1998 and 1999, respectively, the SAOs were convinced of the need to carry out an Arctic Climate Impact Assessment (ACIA). The US as the Arctic Council chair during 1998–2000, was ready to establish the ACIA Secretariat in 2000 and fund the assessment (Ibid.). The ACIA was endorsed in the Barrow ministerial ending the US chair period as a joint project of AMAP, CAFF and IASC (including permanent participants) (Barrow Declaration, 2000, art. 3). The ACIA can be considered a significant regional response to climate change. Its aim was to gather knowledge on climate change and ultraviolet radiation and provide authentic data (using indigenous knowledge parallel with modern science) to the governments and peoples of the consequences of these environmental problems to the region (Notes from the Second Ministerial, 2000, p. 6: Ministerial Roundtable Discussions). The ACIA was requested to evaluate and synthesise knowledge on climate variability and change of increased ultraviolet radiation in the Arctic, and to support policy-making processes and the work of the Intergovernmental Panel on Climate Change (IPCC) (Barrow Declaration, 2000, art. 3). The Barrow ministerial urged the ACIA to address the consequences of, especially, climate change to many spheres of policy (impacts on the environment, human health, social structures,
39 Para. 9. It reads: “We endorse continuation of activities for monitoring, data collection, exchange
of data on the impacts, and assessment of the effects of contaminants and their pathways, increased Ultraviolet-B (UV-B) radiation due to stratospheric ozone depletion, and climate change on Arctic ecosystems.” (Alta Declaration, 1997). 40 Para. 21. It comprises: “Welcome CAFF’s intention to prepare an overview on the status and trends in changes to ecosystems, habitats and species in the Arctic and to identify elements of a program to monitor circumpolar biological diversity and to assess, in collaboration with AMAP, the effects of climate change and UV-B radiation on Arctic ecosystems.” (Iqaluit Declaration, 1998).
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cultures and economies) and also to include policy recommendations (Barrow Declaration, 2000, art. 3).41 By the 2002 Inari ministerial, the work on the ACIA had progressed to the extent that the meeting made a point of noting its concern of ongoing, significant warming in most of the Arctic. It also recognised that the impacts of global climate change will have large consequences in the Arctic, and that the Arctic can act as an early warning of climate change (Inari Declaration, 2002, art.8). The 2002 Inari meeting specifically noted the innovative methodology used in making the ACIA, namely that indigenous knowledge was used in parallel with modern science (Ibid.). It urged for a more coordinated and integrated approach to existing activities to address the challenges of the Arctic environment (Ibid., para. 5). Published in 2004 the ACIA Synthesis Report (ACIA, 2004)42 was forwarded to the Arctic Council and the international science community. The report identifies prevailing trends of climate change in the region and the implications of Arctic warming for the rest of the world. It also identifies four sub-regions43 on the basis of different natural characteristics within the respective parts of the Arctic. The ten key findings of the ACIA synthesis report are the following: i) The Arctic climate is now warming rapidly and much larger changes are projected ii) Arctic warming and its consequences have worldwide implications iii) Arctic vegetation zones are very likely to shift, causing wide-ranging impacts iv) Animal species’ diversity, ranges and distribution will change v) Many coastal communities and facilities face increasing exposure to storms vi) Reduced sea ice is very likely to increase marine transport and access to resources vii) Thawing ground will disrupt transportation, buildings, and other infrastructure viii) Indigenous communities are facing major economic and cultural impacts ix) Elevated ultraviolet radiation levels will affect people, plants, and animals; and x) Multiple influences interact to cause increased impacts to people and ecosystems. (ACIA, 2004, pp. 10–11).44 41 The Council continued with additional activities relating to climate change other than the ACIA.
The 2000 Barrow Ministerial Meeting endorsed the Arctic Council Action Plan to Eliminate Pollution of the Arctic (ACAP), a program that selected the depletion of ozone layer as one of its four priorities in the first phase – a problem very much connected to climate change (ACAP, 2001, p. 2). Ozone and climate change are indirectly linked because both ozone-depleting gases and substitute gases contribute to climate change (“Twenty Questions”, 2006, p. 40). 42 See generally ACIA (2005a). 43 The regions areas follows: sub-region I- East Greenland, Iceland, Norway, Sweden, Finland, Northwest Russia and adjacent seas; sub-region II- Siberia and adjacent seas; sub-region IIIChukotka, Alaska, Western Canadian Arctic and adjacent seas; sub-region IV- Central and Eastern Canadian Arctic, West Greenland, and adjacent seas. 44 The ACIA Scientific Report was published in 2005 and contains much information regarding climate change and of its impacts including future prediction with respect to both Arctic and global context (ACIA, 2005a). The SAOs expected in 2005 that the ACIA would influence the next Scientific Report of the IPCC to be published in 2007 (ACIA, 2005b).
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On the basis of these dramatic findings, released just before the 2004 Reykjavik ministerial of the Arctic Council, the expectations for the Arctic Council to do something substantial in its policy document were apparent.45 The 2004 Ministerial Meeting did adopt some important decisions, firstly recognising that there are grave risks from climate change to the Arctic. The 2004 Reykjavik meeting also urged that the findings of ACIA be disseminated to various fora and that they be taken into account not only in climate change research but also in Arctic national and international climate policy-making, both in terms of mitigation and adaptation.46 Possibly most significantly, the ministerial acknowledged the need to further organise the work of the Arctic Council and its subsidiary bodies based on the ACIA’s findings (Reykjavik Declaration, 2004, “Climate Change in the Arctic”). The SAOs were directed to report on progress in organising climate change work in the Council at the 2006 Salekhard meeting (Ibid.). The ACIA findings induced the Arctic Council members, permanent participants and observers to issue a joint statement in the first meeting of the Kyoto Protocol, which also served as the 11th Conference of the Parties to the UNFCCC, to have the climate regime take ACIA results into account in their future decisions (Statement on Climate, 2005). The 2006 Salekhard ministerial did not suggest any practical initiative to reduce greenhouse gas emissions that would play a positive role in lessening climate change although it did reconfirm the implementation of the ACIA Policy Document in a general way (Salekhard Declaration, 2006, part “Climate Change in the Arctic”).47 The ministerial provided general endorsement to developing Arctic expertise in the field of climate change and to increasing the adaptive capacity of Arctic residents
45 For
a good review of the ‘politics’ surrounding formulation of the ACIA Policy Document and its major shortcomings, such as its being declaratory in nature and short on specifics, see WattCloutier, Fenge, & Crowley (2005). 46 During the same Reykjavik Ministerial Meeting the Council endorsed the Arctic Marine Strategic Plan (AMSP) which acknowledged the Arctic region as seriously vulnerable to the consequences of climate change; it has brought environmental, economic and socio-cultural changes in the region (PAME, 2004, pp. 3–4). The PAME organized a workshop to prepare the plan in October 2003. The purpose of the AMSP 2003 workshop was to provide a forum for exchanging information and ideas on drivers of change, trends in oceans management and possible circumpolar responses to Arctic oceans issues. Climate change was identified as a strong driver of the changes in the Arctic (Workshop Report, 2003, p. 4). According to the AMSP 2004 (PAME, 2004), climate change is one of the main two drivers (another is increasing economic activity ) responsible for those changes in the Arctic. 47 “Climate Change in the Arctic” reads: “Reconfirm their commitments to the Reykjavik Declaration and to the ACIA policy document, adopted at the AC meeting in 2004, and that the Member States will continue their active efforts to implement the recommendations on mitigation, adaptation, research, monitoring and outreach . . . Endorse the ongoing efforts of the SAOs and the Arctic Council working groups to implement activities, as appropriate, to follow-up the Arctic Climate Impact Assessment (ACIA) and the ACIA Policy Document, adopted by the Fourth Ministerial Meeting.” (Original emphasis) (Salekhard Declaration, 2006).
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including indigenous peoples (Ibid.).48 The ministers were satisfied that all the member states of the Council are parties to the UNFCCC (Ibid.). The significance of the Salekhard meeting regarding climate change is that it highlighted the need for further research, to conduct up-to-date assessments and finally to report to the Council after two years at the next Ministerial Meeting (Ibid.).49 A matter for criticism after the 2004 Reykjavik ministerial had been that the meeting was not able to agree on updating of the ACIA, in light of the IPCC’s regular updating format. Yet, the ACIA follow-up is under development and the Council has established a “focal point” (FP) process to discuss options for ACIA follow-up activities (Report of Senior, 2004, p. 34: “The Role of the Arctic Council”).50 Those involved in this FP are the Chair of the SAOs, the Chairs of the Arctic Council working groups, and one representative from the Permanent Participants. At the moment the discussions are centred on when and in what form the ACIA would be updated (Arctic Council Meeting, 2005, pp. 8–9; Ambassador Erik Ulfstedt, Finnish Senior Arctic Official, personal communication, interview by P¨aivi K¨ahk¨onen & Jaana Ojuva, May 10, 2006). This is one of the main questions for Norway, the present chair of the Arctic Council, which has prioritised climate change in its programme for its chair-period (Programme for the Norwegian, part “Climate Change”). In its chair plan Norway has identified three goals each of which aims to consolidate the climate policy of the Arctic Council. The first idea is to strengthen climate change research and monitoring, e.g., by developing regional climate models and scenarios to identify the possible impacts on ecosystems and species distribution. The plan is also to enhance knowledge feedback mechanisms of Arctic climate change to the global climate system and to increase understanding of the interacting impacts from climate change and other stressors. In the Narvik SAO meeting 28–29 November 2007, the AMAP Chair introduced the 3rd draft implementation plan on the Cryosphere Project, now referred to as SWIPA – Snow, Water, Ice and Permafrost in the Arctic (Final Report, 2007, pp. 7–8). The ensuing discussion took up the issue whether the project was too broad, even becoming a type of ACIA 2, the AMAP chair pointing out that the project was meant only to study the three main levels of cryosphere dynamics; the project was given a go-ahead in the recent SAO meeting in Lofoten islands at the end of April 2008 (Stratton, 2008).
48 It states: “Request the SAOs and the Arctic Council working groups to continue supporting, analyzing and synthesizing Arctic climate research, including the gathering and compilation of indigenous and local knowledge of the effects of climate change, so that the exchange of expertise at the global level through the IPCC can better reflect unique Arctic conditions and that global decision-making can take Arctic needs into account.” (Original emphasis) (Ibid.) 49 It cites: “Request that the follow-up on the ACIA and the ACIA Policy document be based on the latest scientific findings and will be kept under review by the SAOs, who will report to the next Ministerial Meeting.” (Original emphasis) (Ibid.). 50 The AMAP has also established a Climate Expert Group, which is tasked to provide expert advice to the AMAP Working Group as it plans its future activities related to climate in the Arctic (Summary of Meeting, 2006).
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The second goal is to strengthen the adaptive capacities of Arctic residents, including indigenous peoples and local communities, and identifying the most vulnerable sectors of society. Norway plans to start work on adaptation strategies and action, such as institutional arrangements, which, in its view, will contribute to local, innovative Arctic adaptation strategies. One project to implement this was introduced by the SDWG’s Chair in the Narvik SAO meeting “Vulnerability and Adaptation to Climate Change in the Arctic (VACCA)”. The project is still in its launching phase, the Narvik SAO meeting discussing issues such as the guiding principles, the type of information to be collected and how it could be collected (Final Report, 2007, p. 8).51 The third idea is to consider initiatives and measures to reduce emissions and enhance removals of greenhouse gases in the region. The plan points out that even though emissions of greenhouse gases from activities in the Arctic are fairly limited in global terms, there are important mitigation opportunities in the region, and it suggests, e.g., energy efficiency and renewable energy; cleaner production of fossil fuels, including CO2 capture and storage; use of new carbon-free and lowcarbon technologies; emissions from transport, including shipping; conservation of reservoirs and enhancement of removals of carbon in soil and by forests and other vegetation. In the joint chair programme for the years 2006–2012 Norway, Denmark and Sweden identify climate change as a priority issue. The programme envisages that the Council will continue its efforts to provide high quality information on climate change that includes input from all Arctic states and peoples. According to the plan, the AC should maintain its special focus on the effects of climate change on Arctic residents and the traditional ways of life of indigenous peoples and share experiences, e.g., on Member States’ experience of taking action to develop and implement local adaptation strategies for Arctic areas, of introducing local measures to reduce climate gases, of reviewing best practices, and of developing and using renewable energy resources in the Arctic (Norwegian, Danish, 2007, part “Climate Change”). Climate change was, according to the recent press release, the main agenda item in the SAO meeting in Lofoten Islands organised at the end of April 2008 (Stratton, 2008). SAOs endorsed the work to assess the influence of non-CO2 drivers on climate change in the Arctic and paid attention to the projects dealing with adaptation to global warming, e.g., ECONOR I, the first comprehensive overview of the circumpolar economy and its natural resource base, the second phase aiming to further assess the role of a subsistence economy in the lives of indigenous people of the Arctic. Interesting also was the “ACIA-2 assessment” by the WWF Arctic delivered to the SAO meeting, which, even though an NGO produced report, is supported by scientific evidence. The assessment analyses relevant scientific findings of the 4th 51 Vulnerability
and Adaptation to Climate Change in the Arctic (VACCA) is designed to provide a better understanding about the state of the Arctic in terms of climate change exposure. The first step is to arrange a survey by setting questionnaires relevant to the issue which can be described as preparation of a background document for a planned workshop of Arctic experts (Final Report, 2007, Section 9).
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Assessment Report of the IPCC, and the more recent climate science outcomes, and shows that the changes resulting from climate change will be much more intensive and rapid than those projected in the ACIA (World Wide Fund for Nature International Arctic Programme, 2008).
3.4 Evaluation As has been pointed out above, the nature of the Council’s climate policy is very much connected to the present structure of the Arctic Council, and thus it makes sense to first evaluate what are the basic elements in this inter-governmental forum and only thereafter to evaluate the state of its climate policy. There are some continuing weaknesses and shortcomings in the Arctic Council, which have been problematic already from the AEPS co-operation onwards. Uncertain and limited funding, lack of a permanent and stable secretariat, and primary reliance on the goodwill of national government departments, ministries, and officials that are often overburdened with existing responsibilities, have been problematic for the Council. One of the main underlying problems in the work of the Council is its legal basis. The Rovaniemi process and the Arctic Council have both been adopted via declarations, considered widely as soft-law instruments. Even though there is disagreement over the credibility of the whole concept of soft-law in international law, the participants to the Arctic co-operation view the Council as a soft-law organisation with no power to establish internationally legally binding obligations for the Arctic states. And it is usually the case that states opt for a soft-law approach only when their level of political and financial commitment is fairly low. By contrast, with laying the foundation for cooperation on a treaty basis, states commit themselves to a stable long-term cooperation, which can be implemented with mandatory funding schemes – a basis, which enables states to enter into more controversial policy fields. The soft-law approach is manifested in the current mandate of the Council. The Council is confined to a role where it can make viable scientific assessments, and even adopt soft guidance. This means that environmental protection and other work of the Council can only rarely touch upon issues that should be at the heart of policy work of the Arctic, i.e., to influence the national and sub-national governance systems functioning within the Arctic eight or the international regimes and governance frameworks having influence in the Arctic. Within these limits, the Arctic Council has done a lot of useful work: reviewed the international environmental laws and treaties applicable to the Arctic region; produced guidelines and manuals on various fields of environmental protection, where Arctic application would require special measures; made an inventory of existing nature protection areas, studied the environmental problems damaging the environment etc. The Council has also been a platform where the internationally oriented Arctic actors and actors outside of the region can meet and discuss common issues facing the Arctic, and it has certainly been able to promote the cause of indigenous peoples, as their framework organisations are given a unique status in the Arctic Council as Permanent Participants (Koivurova & Hein¨am¨aki, 2006). It
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has also influenced even global policy processes by producing influential scientific assessments52 Yet, the governance related work of the Council has remained a limited one, trying to influence policy-making via scientific assessments and sometimes even adopting manuals of good practise, guidelines and policy recommendations. Sometimes these assessments have indeed made a difference but many times the end product has been somewhat disappointing. More importantly, there is no assessment as to whether this soft guidance by the Council in the form of guidelines and manuals has really made policy impacts, other than the one the present author conducted with a colleague, and which, unfortunately, revealed major shortcomings in the project studied.53 These general pros and cons of the Council manifest themselves in its climate policy. A good argument can be made that the Council has been able – through the ACIA process – to influence even the global climate change regime since it is fairly uncontested that the increase and progress in knowledge of climate change and its consequences puts pressure on the politico-legal machinery to strengthen the climate regime. By influencing climate science, especially on what have, are and will be the consequences of climate change in the Arctic, a convincing argument can be made that ACIA was one factor more to put pressure on global mitigation measures. The ACIA confirmed the Arctic as the early warning place of climate change, since the consequences of global warming have been realised there from the 1960’s onwards, and the consequences are projected to be twice as intense compared to 52 For
example, the global Stockholm Convention on Persistent Organic Pollutants (2001) at the Preamble reads: “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” (e.g., see Reiersen, Wilson, & Kimstack, 2003). 53 A prime example of the Arctic cooperation’s limited influence on national incorporation of regional objectives is painfully shown by the Guidelines for Environmental Impact Assessment in the Arctic (AEPS, 1997), an instrument that was adopted at the 1997 Alta meeting and was meant to harmonize the way environmental impact assessment should be done in the Arctic – both nationally and in a transboundary context. Even though the Arctic states agreed to apply the EIA Guidelines in practice, the Alta Ministerial Meeting failed to establish any real follow-up mechanisms to oversee how the EIA Guidelines would, in effect, be implemented. Research conducted by the Northern Institute for Environmental and Minority Law (NIEM/Arctic Centre) on behalf of the Finnish Ministry for the Environment found that only a few of the Arctic stakeholders – environmental NGOs, indigenous peoples’ organizations, companies, and administrative agencies – even knew that the EIA Guidelines existed. The EIA Guidelines did not appear to have influenced any environmental impact assessment processes in the Arctic. The only follow-up was creation of the Arctic Environmental Impact Assessment (ARIA) website where information about EIA laws and procedures, responsible agencies, and so on, can be found. The ARIA website, which also contains the Guidelines for Environmental Impact Assessment in the Arctic (EIA Guidelines) is a very useful tool for researchers and those who are in general interested in EIA procedures, but it does not contain any connection to actual supervision of how the EIA Guidelines are applied and implemented in the Arctic (online: Arctic Centre ) (Koivurova, 2003, 2008b).
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the rest of the world. ACIA and other related assessments have also increased the awareness of people and localities in the Arctic to the impacts of climate change, and thereby affecting at least to some extent the adaptive capacity of the people, communities and cities living and located in the region. There are also new projects, which aim specifically to increase the adaptive capacity of Arctic communities, such as the “Vulnerability and Adaptation to Climate Change in the Arctic (VACCA)” project. It seems also established that ACIA did point to some important social learning in the Arctic Council, the climate change becoming a cross-cutting issue, which is increasingly taken into account in all activities of the Council. If one examines the two last SAO meetings of the Council, climate change clearly is the dominating theme. Yet, at least up till now, there is no sign of climate change inducing any major revision process in the Council, a scenario, which is likely to continue in the nearterm future.54 With this scenario, it is reasonable to expect that the climate policy of the Council will become more intensive by the day but it is still doubtful whether this will lead to a process whereby the Council member states, its permanent participants and observers would opt for a stronger governance mechanism for the region – an issue that will be studied in David VanderZwaag’s chapter.
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Rignot, E., & Kanaguratnam, P. (2006, February 17). Changes in the velocity structure of the Greenland ice sheet. Science, 311, 5763, 986. Rio Declaration on Environment and Development. (1992). Report of the United Nations Conference on Environment and Development, UN Doc./CONF.151/6/Rev.1, 31 I.L.M. 874. Retrieved July 10, 2008, from www.un.org/esa/sustdev/documents/agenda21/english/agenda21toc.htm. Rothwell, D. R. (1996). The polar regions and the development of international law. Cambridge: Cambridge University Press. SAAO Report to the Ministers of the Fourth Ministerial Conference on Environmental Protection and Sustainable Use of Resources in the Arctic Environment. (1997). Alta, Norway. The Salekhard Declaration on the occasion of the tenth Anniversary of the Arctic Council the Fifth AC Ministerial Meeting. (2006). Salekhard, Russia, 26 October. Retrieved July 10, 2008, http://archive.arcticportal.org/292/01/SALEKHARD AC DECLARATION.pdf. Scrivener, D. (1999). Arctic environmental cooperation in transition. Polar Record, 35, 192, 51–58. State of the Arctic Environment Reports (SOAERs). Arctic Monitoring and Assessment Programme (AMAP) Retrieved July 10, 2008 from website at www.amap.no. Statement on Climate Change in the Arctic Region. (2005, December 9). Canada, Denmark, Finland, Norway, the Russian Federation, Sweden and the United States of America with France, Germany, the Netherlands, Poland, Spain and the United Kingdom of Great Britain and Northern Ireland. Montreal.United Nations Climate Change Conference. Retrieved July 10, 2008, from http://arctic-council.org/filearchive/AC%20statement%20CoP11%20Montreal final.pdf. Stratton, T. L. (2008, April 29). Successful SAO Meeting. Arctic Council Press Release. Retrieved July 10, 2008, from http://arctic-council.org/article/2008/4/successful sao meeting. Summary of Meeting of AMAP Climate Expert Group. (2006). Oslo, February 15–16. Retrieved July 10, 2008, from http://www.amap.no/documents/index.cfm?action=getfile&dirsub=& filename=CEG-Meeting Report%20Final%20Version%2020%20March%202006.pdf&CFID =78340&CFTOKEN=47111027&sort=default. Terms of Reference for a Sustainable Development Program as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, (1998). Iqaluit, Canada, September 17–18. Retrieved July 10, 2008, from www.arcticcouncil.org. Twenty questions and answers about the ozone layer. (2006, updated). In D.W. Fahey (Lead Author), Basic information on stratospheric ozone depletion. Retrieved July 10, 2008, from www.epa.gov/ozone/science/basicinfo.html. United Nations Convention on the Law of the Sea. (UNCLOS). 10 December 1982, U.N. Doc. A/Conf. 6/122, 1833 U.N.T.S. 396, 21 I.L.M. 1261. VanderZwaag, D. L. (2000). Arctic. Yearbook of International Environmental Law, 11, 261–267. Watt-Cloutier, S., Fenge, T., & Crowley, P. (2005, January). Responding to global climate change: The perspective of the Inuit Circumpolar Conference on the Arctic Climate Impact Assessment. In L. Rosentrater (Ed.), Evidence and implications of dangerous climate change in the Arctic (pp. 57–68). Oslo: WWF International Arctic Program. Workshop Report in support of the Arctic Marine Strategic Plan. (2003). Reykjavik, Iceland October 20–22. Retrieved July 10, 2008, from http://arcticportal.org/ uploads/U9/37/U937o9yGsQ4WQsUOdsYsBg/Workshop-Report.pdf. World Wide Fund for Nature International Arctic Programme (WWF). (2008, April). Arctic climate impact science – an update since ACIA. Oslo. Retrieved April 30, 2008, from www.panda.org/about wwf/where we work/europe/what we do/arctic/index.cfm. Zimov, S. A., Schuur, E. A. G., & Stuart Chapin, F., III. (2006, June 16). Climate change: Permafrost and the global carbon budget. Science, 312, 5780, 1612.
Chapter 4
A Changing Arctic Climate: Science and Policy in the Arctic Climate Impact Assessment Annika E. Nilsson
Abstract Climate change has often been framed as a global issue but slow progress in the global negotiations and needs to plan for local adaptation have made it increasingly salient to also discuss other arenas for climate policy and knowledge production. This chapter analyzes the interplay between climate science and policy at the international regional level based on a study of the Arctic Climate Impact Assessment (ACIA). The history and process of ACIA illustrate how the existence of a global climate assessment can delay a regional response and how the initiation of a circumpolar Arctic assessment of the impacts of climate change depended on interplay between global and regional regimes. Once the assessment process was in place, the regional arena brought new actors into climate knowledge production and policy with an increased emphasis on the complexity of social and cultural impacts of climate change among indigenous peoples. The results illustrate how the structure of international cooperation can influence knowledge production about climate change and highlight the political dimensions of focusing on particular spatial scales and governance levels in climate knowledge production and policy.
4.1 Introduction The Arctic climate is changing at an increasingly rapid rate. Not only are temperatures rising, there is also widespread melting of ice (Intergovernmental Panel on Climate Change [IPCC], 2007a, 2007b). Consequences include the possibility of an ice-free Arctic Ocean in the summer, large-scale ecosystem changes and challenges to traditional livelihoods of indigenous peoples (Arctic Climate Impact Assessment [ACIA], 2005; National Snow and Ice Data Center, 2008). Climate change is only one of many changes globally and in the Arctic. Others entail various biogeochemical cycles as well as economic, social, and cultural processes (Steffen, J¨ager, Carson,
A.E. Nilsson (B) Stockholm Environment Institute, Kr¨aftriket 2B, SE 106 91 Stockholm, Sweden e-mail:
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& Bradshaw, 2002; Arctic Human Development Report [AHDR], 2004; Young et al., 2006). Some even claim that the changes of Earth as a system are so major and fast that we have entered into a new geological era, the Anthropocene, where the human society is the dominating driving force (Crutzen & Stoermer, 2000). The high rates of change, along with complex connections between the many changes, mean that knowledge based on previous experience may no longer be valid and old ways of managing social-ecological systems may yield undesirable results. Society’s capacity to learn and to adapt while learning become key issues (Folke, Colding, & Berkes, 2003; Walker et al., 2006; Young et al.; 2006; Folke, 2006). The role of social institutions for structuring the relationship between human societies and the natural environment has received increasing attention in recent years. This includes a number of approaches, such as studies of how governance arrangements can both cause and help solve environmental problems (e.g., Young, 2002) and analyses of how scientific knowledge is transformed into policy action (Mitchell, Clark, Cash, & Dickson, 2006b; Farrell & J¨ager, 2006a). Some scholars emphasise that knowledge systems are part of society’s processes of institutional and social learning to deal with ecosystem dynamics (Folke et al., 2003, p. 373). Previous research has also shown that institutions can privilege certain ways of understanding the world (Young, 2004; Walsh, 2004; King, 2004; Lebel, Contreras, Pasong, & Garden, 2004; Ebbin, 2004) This chapter takes the connection between institutions and how we understand the world as a starting point for analysing how governance at the international regional level in the Arctic has affected our knowledge about Arctic climate change. We know by now that the Arctic climate is changing. The question this chapter addresses is how we know this. In particular, it addresses the relationships between science and political order and how it affects the framing of climate change. It thereby addresses the very basis for understanding the potential for adapting to Arctic climate change – society’s capacity to generate knowledge about the challenges at hand. In addition, it provides a background to the overall question for this book, which is how global and regional institutions are able to adapt to changes in the Arctic climate. Following up on the presentation of the history of Arctic Council in Koivurova and Hassanat’s chapter in this volume, this chapter focuses specifically on how the issue of climate change has been treated in the context of Arctic international cooperation. It is based on a case study of the history, process, and published results of Arctic Climate Impact Assessment that has been presented in detail in the PhD dissertation A Changing Arctic Climate. Science and Policy in the Arctic Climate Impact Assessment (Nilsson, 2007). The Arctic Climate Impact Assessment (ACIA) was the first international regional climate impact assessment and its results created major media attention when they became public in 2004 (Tjernhaugen & Bang, 2005). The research presented here does not look at the long-term impacts of the ACIA on policy or knowledge production. Rather, it looks back in time and asks: What knowledges made it possible for the ACIA to conclude that the Arctic climate is changing rapidly and that this will have major impacts globally and on indigenous peoples in the region? It also asks: What circumstances contributed to the inclusion of certain knowledges?
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I attempt to answer these questions by discussing how the interplay between policy and knowledge production affects the framing of Arctic climate change in the ACIA, including an analysis of whose knowledge traditions come to the fore and how this might relate to structures of international cooperation.
4.1.1 Analytical Points of Departure Our knowledge about the world is always limited. We see certain things but are blind to others. What we see and pay attention to depend not only on the physical features in our surroundings and our cognitive abilities but also on the social context in which we live. Even if scientific practice attempts to limit the influence of social and individual cognitive factors, science and technology studies have clearly shown that scientific knowledge is socially constructed, and that this process can be best understood as co-construction between nature and culture/society (Latour, 1987; Latour, 1993; Jasanoff & Wynne, 1998; Jasanoff, 2004). One aspect of this social construction is how an issue is framed. Framing refers to how we define a problem, its impacts and potential solutions in ways that highlight certain aspects and downplay others (Mitchell, Clark, & Cash, 2006a, p. 315). Frames guide what parts of the world around us become visible (K¨onig, 2006). The term framing has also been used as a synonym to “policy paradigm” (Social Learning Group, 2001, p. 353). In scientific assessments, framing influences what features of an issue are included or excluded within a specific context. Framing is important because it moulds the rhetoric of policy debates (Farrell & J¨ager, 2006b, p. 15), and once an issue has become established, the most likely policy impact of a scientific assessment is in promoting an alternative framing (Mitchell et al., 2006a). This role links it closely to the discursive power that Litfin highlights in her classic study of ozone politics and the importance of construction of knowledge and discourse in international environmental politics (Litfin, 1994). The chapter connects the analysis of the framings of Arctic climate change in the ACIA to the knowledges that contributed to highlighting certain aspects of Arctic climate change and why those knowledges were included. Special attention is placed on the role of regimes, defined as the principles, norms, and decision-making procedures around which actors’ expectations converge as a specific issue area (Krasner, 1983, p. 1). In addition, the article discusses the role of individual knowledge brokers in relation to regimes. Knowledge brokers are people who serve as “intermediaries between the original researcher, or the producer of knowledge, and the policymakers who consume the knowledge but lack the time and training necessary to absorb the original research” (Litfin, 1994, p. 4). One aspect of framing is whether an issue is seen as global or local, or placed at some other governance or analytical level. The issues of levels and scales come into focus. As an analytical concept, the term scale has been used in different ways in the literature. A common usage is to look at scale as a ruler along which a relative magnitude can be measured, while levels are points along the scale (Gibson, Ostrom, & Ahn, 2000; Young, 2002; Gupta, 2008). Different scientific disciplines
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generally use different levels as their natural starting points, with climate science traditionally using a global perspective, while for example anthropology generally takes its starting point in a local setting. In a political context, the choice of level can be a matter of strategic choice by various actors. In the literature this is captured in the concept “politics of scale” (Lebel, Garden, & Imamura, 2005; Miller & Erickson, 2006; Gupta, 2008). “Politics-of scale” can be a used as an analytical tool for understanding why societies are able to detect and act efficiently on some environmental changes, while other issues only to a lesser extent affect policy debates or reach only some but not other levels of governance. A related analytical concept, although with less emphasis on political power, is the vertical interplay between different governance levels, including how actors sometimes choose arenas to gain certain advantages (Young, 2002). So far, the concepts of politics of scale and interplay have mainly been used to analyze environmental politics. Based on the premise that policy and science are coproduced, this chapter focuses on how the political framing of an issue (or policy paradigm) can also affect knowledge production and discusses the role of interplay and the politics of scale in such dynamics. Environmental change is often framed as a global issue, both scientifically and politically. Climate change, in particular, has until recently been addressed mainly by global institutions (see Chapter 2 by Doelle in this volume). This calls for an analysis of how vertical interplay and politics of scale may have led to an emphasis on some ways of understanding climate change while downplaying others and what happens when new actors with other preferences and institutions with other norms enter the scene of climate science and politics.
4.1.2 Materials and Methods The empirical basis for the analysis includes semi-structured interviews with participants in the ACIA process (lead authors of the scientific chapters, other members of the assessment steering committee, and other participants in the ACIA policy process such as climate negotiators, Senior Arctic Officials, and representatives of indigenous peoples organisations), in total 56 different people in approximately 70 different interviews. Interviews were recorded and transcribed. Interviews with lead authors included questions about the knowledge base for their chapters as well as issues about scale perspectives. In addition, observations were made at key meetings of the assessment steering committee, assessment integration team, and Arctic Council working groups, which gave insights to choices made in the later part of the assessment process. Analyses of the formal documentation of the assessment and its history added further detail, especially concerning the beginning of the process. The systematic gathering of material ended in the late fall 2004, when ACIA science results, an overview report, and a policy document were presented, with the addition of publication of the ACIA scientific report in 2005. These key documents are: Arctic Climate Impact Assessment (ACIA, 2005), Impacts of Warming
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Arctic: Arctic Climate Impact Assessment (ACIA, 2004), and Arctic Climate Impact Assessment. Policy Document (Arctic Council, 2004). The framing analysis of the scientific and overview documents is based on a combination of qualitative and quantitative methods. In short, the qualitative analysis focused on answering questions about the knowledge base for each chapter in the scientific report (Whose knowledge? What knowledge?) and on identifying why certain knowledges were available and had been gathered. The answers were based on what was visible in the text of the reports. For example, some chapters refer to local case studies and indigenous observations whereas other chapters rely mainly on climate models or climate data gathered through international collaborations. The quantitative analysis is based on counting the number of times certain words were used in the various chapters and using multivariate statistical analysis to elucidate patterns of how these words co-correlated and how various chapters differed from each other. The words were chosen to represent scale perspectives, knowledge traditions, methods, disciplinary foci, and established discourses. The multivariate analysis revealed how chapters grouped together and the words that made the groups of chapters different from each other. These words were used to identify the major frames. An example is that the words global and local appear to be characteristic for different groups of chapters. Frequent use of the word local correlates with frequent usage of words such as people, social and political, while the use of global tends to correlate with use of the words model, atmosphere and temperature. The issue of scale was not present when the study started but was included in interviews and the content analysis based on issues that came up in the observations of meetings. The frames were thus based on the empirical material rather than preconceived. In this paper, the results are only presented in summary with an emphasis on how they link to the ACIA process and structure of international cooperation. For further discussion of methods, including full references to sources, see Nilsson (2007). Based on empirical material, the following two sections provide summaries of the history and process of the ACIA and the main results of the framing analysis of the ACIA reports. This is followed by a discussion of vertical interplay and politics of scale in the ACIA that concludes the chapter and addresses the questions of how and why we now know that the Arctic climate is changing rapidly and that this will have major impacts globally and on indigenous peoples in the region.
4.2 The History and Process of the ACIA The history of the ACIA highlights how interplay between different governance levels first postponed and later enabled knowledge production about Arctic climate change. In the initial circumpolar cooperation in the Arctic Environmental Protection Strategy (AEPS) in the early 1990s, climate change was not a priority. From political documents, it appears that activities at the global level served as a motive not to highlight this issue in the emerging political cooperation in the Arctic (Arctic
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Monitoring and Assessment Task Force, 1991; Arctic Environmental Protection Strategy [AEPS], 1993). It was more of an issue in the scientific cooperation, where the need for Arctic data and better understanding of Arctic processes served as a motive in the creation of the International Arctic Science Committee (IASC). IASC can be described as one initiation point for the ACIA. IASC had since its creation in 1990 had the role of the Arctic in global change on its agenda. It had also run two subregional climate impact studies – the Bering and Barents sea impacts studies – and was thus in a good position to take the initiative for a circumpolar assessment. Via key people who were active in both Arctic science cooperation and global climate research, IASC also had links to discussions in the Intergovernmental Panel on Climate Change (IPCC). There was also a wish in the IPCC to get better knowledge of climate change at the regional level. These key people were Bert Bolin, founding chair of the IPCC and then vice chair of IASC Executive Committee, and Robert Corell, at the time US representative and chair of IASC’s Regional Board (later chair of the ACIA). The IPCC can thus be seen as a second initiation point for the ACIA. The Arctic was here of particular interest. Not only are Arctic processes critical to global climate change and thus scientifically important to understand. The Arctic was also a potential showcase of anthropogenic climate change that was needed in the global policy debate. In the late 1990s, the scientific basis for anthropogenic climate change was still a major issue in the political debate. The Arctic was also attractive for an in-depth study because the Arctic Council – as a regional regime – provided an organisational capacity to carry out an assessment that could link to the policy sphere, just as the IPCC links to the UN Framework Convention on Climate Change (UNFCCC) in the global setting. A third initiation point was in the largest working group in the AEPS (and later the Arctic Council): the Arctic Monitoring and Assessment Programme (AMAP). From the initial resistance to engage in assessing climate change with reference to ongoing global processes, the AEPS was slowly shifting its priorities in the mid-1990s. This became especially apparent after AMAP’s first major assessment report, which featured a chapter on climate change and ultraviolet radiation (AEPS, 1997; Weatherhead, 1998). When IASC approached AMAP about an Arctic climate impact assessment in 1999, some planning for an assessment had already started and the time was thus ripe for a major effort. This effort became a joint endeavour of IASC, AMAP, and one of the other Arctic Council working groups – Conservation of Arctic Flora and Fauna (CAFF) – and later labelled the Arctic Climate Impact Assessment (ACIA). After initial scoping, the ACIA was approved at the Arctic Council Barrow ministerial meeting in 2000. Three reports were requested: a scientific report, a popular science summary, and a policy document (Arctic Council, 2000). With the Arctic Council as the organisational setting for the assessment came a question of what knowledge was relevant to include as compared to IPCC’s assessments, which are based almost exclusively on peer reviewed scientific literature. In the Arctic Council, indigenous peoples organisations have a formal role as permanent participants with a place at the table in Arctic Council discussions. They also take part in working groups and in scientific steering committees that are responsible
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for scientific assessments. Because of this standing, combined with a push from indigenous peoples’ representatives at key meetings and active interest from the ACIA chair to include indigenous knowledge, several chapters in the ACIA scientific assessment came to highlight indigenous observations and perspectives. The impact this had on the framing of climate change in the ACIA reports is discussed further below, but in relation to the process I want to emphasise that this gave the indigenous people a role as knowledge providers that they had not previously had in climate science. Research on scientific assessments has highlighted three criteria that influence whether an assessment will have policy impact: salience, credibility and legitimacy. Salience refers to whether an assessment is relevant, credibility to whether it is judged to be reliable and legitimacy to whether it is respectful (Mitchell et al., 2006b). Access to the assessment process and inclusion of indigenous knowledge probably helped make the ACIA salient, legitimate, and credible to indigenous peoples’ organisations and their leaders in a way that also played into the political dynamics of the ACIA process (Nilsson, 2009). While the scientific report was regarded as a scientific document, similarly to previous AEPS and Arctic Council assessments and to the IPCC scientific reports, the popular science summary – or overview – and the ACIA policy documents were new products in the Arctic Council setting. The overview was placed as part of the scientific assessment and produced without any formal approval by working groups or national representatives, which is in contrast to AMAP’s assessments of pollution in the Arctic. It also had a different status than IPCC’s negotiated summaries for policymakers. The policy document gave rise to a completely new process – the creation of a policy drafting team with national representatives and representatives of the permanent participants. When the United States started realising the implication of the ACIA and the role of this group in drafting policy recommendation, the policy drafting team was dismissed and its task taken over by the Senior Arctic Officials (SAOs), who represent the highest national policy levels under the ministers. In a process that did not have any predetermined procedure and that had to harbour conflicts between national interests in climate policy, the national negotiating positions became increasingly coloured by global climate politics. Meanwhile, the permanent participants lost some of their influence in the negotiations. They, especially the Inuit Circumpolar Conference (ICC), were not happy and countered by bringing the US resistance out in public via a US congressional hearing and media (Watt-Cloutier, 2004; Watt-Cloutier, Fenge, & Crowley, 2006). Based on interview accounts from a number of different country’s representatives who participated in the process, the bad-will that this created for the US State Department made it very difficult to not agree to some kind of policy document. The final text did not go further than commitments that had already been made on the global arena and the lack of regional political initiatives in the policy document suggests that the role of new knowledge about climate change was constrained by existing frames of climate change as a global issue. Nevertheless, many participants in the work of the Arctic Council breathed a sigh of relief, as the lack of agreement may have put this young regime for Arctic cooperation in jeopardy.
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The ACIA history and process illustrate the role of a regional regime – the cooperation in the Arctic Council – and how it can be used by various actors in the process of producing knowledge about climate change. The process also highlights the vertical interplay between regimes at the regional and global levels. In the early work of the Arctic political cooperation, the emerging global climate regime served as a motive to keep the question of climate change low on the politically prioritised agenda. It did, however, remain on the scientific agenda. When the need for a regional Arctic assessment was identified at the global level, actors connected to global climate science and Arctic science could use the existing regional regime to provide a politically legitimate platform for a regional scientific assessment. And vice versa: For the Arctic Council and its working groups, the connection to IPCC can be described as a way of creating a process that would also be legitimate from a global perspective. With the meeting of global and regional regimes, it was not clear from the beginning what norms and decision-making procedures should govern the definition of the science-policy boundary. It was thus open for various actors to assert their views and make tactical political choices about the role of regional and global arenas in a climate policy discussion. While the permanent participants clearly wanted the Arctic cooperation to play an active policy role vis a` vis the global discussions, the United States in particular challenged the legitimacy of the Arctic Council as an arena for climate policy and asserted the UNFCCC as the appropriate forum. The United States also actively challenged the notion that science should determine policy. The challenges by this strong actor on the international climate science and policy scenes were countered when those with other interests, especially Arctic indigenous peoples, brought the US resistance out into the open via media (for a detailed discussion of North American actors in the ACIA process, see Nilsson, 2009). The ACIA illustrates how a regional setting can create quite different sciencepolicy dynamics by bringing in new actors; in this case the indigenous peoples’ organisations. Moreover, it illustrates that ambiguity in the structure of cooperation, which was produced by different norms and decision-making procedures at the global and regional level, created leeway for actors to assert their preferences. The ACIA process also highlights the role of “knowledge brokers” and how they can use a regime to further their interests. The concept “knowledge broker” emphasises the potential role of individual actors as major drivers in science-intensive policy making. Bert Bolin and Robert Corell can be described as knowledge brokers connecting the interests of the global climate science community with the Arctic cooperation. Moreover, both interview accounts and formal documentation point to the ACIA’s chair as a driver in connecting scientific and indigenous concerns. However, in both these cases, the ACIA process shows that a knowledge broker does not operate in a vacuum. The connection between global and Arctic climate science was facilitated by IASC as an important platform for approaching the Arctic Council and the individual initiatives were further facilitated by strong Arctic Council norms of the importance of scientific knowledge on the impacts of environmental change on the region (Tennberg, 2000). The global climate science regime strengthened the scientific legitimacy of the project while the regional scientific cooperation
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in IASC served as a bridge to the regional political cooperation in the Arctic Council. It is not likely that such an ambitious international assessment of Arctic climate change would have been conducted without the presence of some regional regime as a platform. Moreover, a wish from ACIA’s chair to involve indigenous peoples in the assessment fit well with the norms of indigenous participation within the Arctic Council. The ACIA process also illustrates some limits of the influence of a knowledge broker as an individual actor. ACIA’s chair has pointed to the close association between science and policy in ACIA as a unique opportunity to convey the message to policy makers that climate change was real and required political action. In the global arena, science and policy are formally separated into two different processes, the IPCC and the UNFCCC, while both the scientific and policy aspects of the ACIA were carried out under the Arctic Council. Nevertheless, the challenges with bringing them together became vividly apparent when the United States realised that national interests relating to global climate policy were at stake. The policy process was then moved to more policy-exclusive venues and the boundary between science and policy was reasserted, following the norms that were established at the global level. According to one Senior Arctic Official, the process may not have become as contentious if the scientific leadership had not pushed so hard to make the Arctic a showcase of global climate change. The promotion of the ACIA and its potential linkage to global climate change may have made it inevitable that the dynamics of the global climate negotiations would influence the process.
4.3 The Framing of Arctic Climate Change The ACIA process resulted in three documents of which the scientific report and overview documents may be more influential on how Arctic climate change is viewed than the negotiated policy document. This potential influence lies partly in new scientific evidence for climate change but also in how Arctic climate change is framed – its discursive power. The quantitative analysis of the scientific report shows that there are two major and very different framings of Arctic climate change in the ACIA scientific report that can be described as a global-local dichotomy (Nilsson, 2007, Chapter 6, 2008). At one end, there is an emphasis on physical aspects of the Arctic, such as ice, snow, and permafrost, as key components of the global climate system. The chapters with this emphasis focus on the atmosphere and highlight that Arctic climate change is likely to have repercussions for the global climate. Some biological aspects, especially carbon cycling, are also part of this discourse. In contrast, another group of chapters focus on the complex interactions of different factors that will be important in determining the impacts of climate change at the local or sub-regional level, be it microclimate in ecosystems, engineering design for damage from degrading permafrost, global market forces for fisheries economy, or political influence for determining local vulnerability. This framing is most pronounced in chapters that
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base their conclusions on local case studies and have a strong link to indigenous perspectives. The results from the quantitative analysis are further supported by the qualitative analysis of the scientific report and by several interviews with lead authors. The focus on global impacts and physical systems was well established in the international science arena before the ACIA, for example by the IPCC and by major research programs. The ACIA provided more in-depth assessment of specific issues but hardly any new framings of climate change. A major new issue that came forth was the high variability of climate in the Arctic and that this variability actually made it very difficult to scientifically determine whether the observed changes were human-induced, which at the time made the image of the Arctic as a bellwether for human-induced climate change a bit problematic (for details, see ACIA, 2005, Chapters 2 and 4). The focus on the local level and the complex interactions of various factors is more interesting as it represents a new framing in relation to the view of the Arctic in global climate science, especially an introduction of the importance of cultural and political factors to the impacts of climate change. An example of this is the emphasis on multiple environmental stressors, such as interactions with pollutants and physical disturbances of ecosystems. Another example is the notion of human health as a concept that integrates influences ranging from the physical environment to cultural, community, and family surroundings to genetic dispositions. A third example is how discussions about impacts of climate change on indigenous peoples highlight connections to political rights. It can be described as providing a human face to Arctic climate change that had not been as visible in the scientific and political discussions of climate change. It also brought the politics of impacts to the fore in a new way (Nilsson, 2009). Especially when discussing impacts on indigenous peoples, the regime context of the Arctic Council appears to have been important in allowing new perspectives into the discussion on Arctic climate change. Here, the norms and decision-making procedures of the Arctic political cooperation created a formal role for indigenous peoples throughout the assessment process. This allowed them to not only voice their priorities but also to ensure that indigenous voices became included in a formal scientific document and thus in the knowledge base that is available to audiences concerned with the science of climate change. It highlighted a point made by Koivurova and Hein¨am¨aki (2006) that indigenous peoples are more likely to be able to participate in international norm-making in soft-law agreements than in formally codified treaties. The inclusion on indigenous perspectives can be placed in contrast to the fact that ACIA is very limited in its discussion of social and economic impacts that do not relate directly to indigenous peoples (Nilsson, 2008). It appears that the assessment, with the exception of one chapter, did not connect to social scientists who could have provided input to such discussions. Neither was there any structural support for such perspectives within the Arctic Council working groups responsible for the assessment. It thus illustrates how structures such as scientific networks and governance arrangements can also create barriers for knowledge production. In this case,
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an open request by policy makers to include socioeconomic issues in the assessment was not a strong enough driver to overcome structural barriers set by the previous organisation of knowledge production. In the scientific assessment, the regional perspective was partly lost in the globallocal dichotomy. However, in the overview document, the pan-Arctic region is given a much stronger emphasis and also given a symbolic role as the “canary in the mine” warning system for what could be in store globally. As this “bellwether” framing is not as prominent in the scientific report, the immediate driver appears to be the team that was responsible for producing the overview and their wish to be policy relevant within the context of the global climate negotiations. A popular science genre that attempted to draw general conclusions from an Arctic assessment would also favour regional summaries over highlighting local complexity. An additional context that may have played a role for the regional framing is the building of a regional Arctic identity, in particular the voice of indigenous peoples in the Arctic Council and the role they have created for themselves as spokespeople for the Arctic environment (Nuttall, 2000). Thus the regional perspective was likely the result of interplay between the structures of the Arctic Council and the indigenous peoples organisations as actors and, in this case, their linking to scientific actors. What does the ACIA process say about the role of international cooperation for shaping knowledge production? In the ACIA process, the structure of the Arctic Council played a major role in changing the definition of what was considered legitimate knowledge in relation to climate change. Specifically, the political representation of indigenous peoples as permanent participants in the Arctic Council provided a venue for introducing traditional knowledge in a way that would have been very difficult to ignore politically. Moreover, it appears that the national cooperation in the Arctic Council, as the political platform, to a large extent kept sub-regional or local political stakeholders from participating in framing the assessment’s task. Local business or political experiences were thus not introduced as legitimate sources of knowledge in the assessment. It was not sufficient that previous research on climate impacts in the Arctic had contained a sub-regional focus with involvement of local stakeholders. This could be one explanation as to why it proved difficult for the process to take on the task of assessing socioeconomic impacts. Socio-economic impacts became framed mainly as impacts on the indigenous populations and their traditional livelihoods, which was in line with the interests of the indigenous peoples’ organisations with voices in the Arctic Council setting. While there are specific measures in the ACIA to make the assessment process legitimate to the indigenous peoples’ organisations, there are very few signs of attempts to make the process legitimate as well to local or sub-regional stakeholders that had no strong platform in the Arctic Council. Other contributing factors for the lack of emphasis on socioeconomic assessment appear to have been that the key organisations in the assessment had weak connections to social science communities that could have been engaged in this task (Nilsson, 2008). In summary, the ACIA case shows that the structure of international political cooperation has played a major role in how we understand Arctic climate change, in particular the existence of an Arctic regime with its norms of indigenous
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participation. But it also shows that vertical interplay between a dominant global regime and new regional cooperation can delay regional knowledge production. Pielke Jr., Prins, Rayner, and Sarawitz (2007) have argued that a serious discussion of adaptation to climate change has been delayed by a framing of climate change that has been dominated by global mitigation issues. In the next section, I will therefore use the concept of “politics of scale” to place this case study of the ACIA into this larger political context.
4.4 Conclusions and Discussion: The Politics of Scale The ACIA case illustrates how a regional regime can help bring out some local complexity regarding the impact of adaptation to climate change that is not as apparent when viewing the region only from a global perspective. A major explanation for this emphasis on local complexity was that the policy context of the assessment and the norms of the Arctic Council allowed new actors into scientific knowledge production. It thus illustrates how a regional political context can influence the scientific framing of an issue. The ACIA history also shows that regional knowledge production was highly dependent upon the global political context and that a dominant political framing of climate change as a global issue probably delayed this meeting of global and local perspectives. Based on a detailed scrutiny of the framing analysis results, one can even argue that the global and local framing did not really meet but represented two parallel framings in the scientific report. The regional and subregional syntheses mostly became apparent in the popular science overview and the assessment itself identifies the lack of subregional assessment as one of its major weaknesses. How can the delay in circumpolar Arctic assessment of climate impacts and the continued lack of subregional assessment be understood? To answer the first of these questions, I turn to the concept “politics of scale,” as developed by Lebel, Garden et al. (2005). This raises questions such as: Who has power to decide the spatial scale preference? What implications do different scale choices have for what knowledge is considered legitimate? How does it affect responsibility for an issue? How do regimes give various actors a power base from which to highlight their preferences? Reviews of the evolution of climate science show that the global perspective that has dominated the political framing of climate change has historically gained power because it co-developed with conscious efforts from the United States to internationalise science in the post-World War II era (Miller, 2001, 2004). The global view has also gained power by its co-evolution with the growth of international governance within the framework of the United Nations. For climate science, the creation of the World Meteorological Organization and subsequent initiatives to create global observation networks and promote research important for global-scale modelling is a critical example. These efforts were further reinforced by links to international scientific cooperation surrounding geophysical aspects of earth as a system, with the International Geophysical Year 1957/1958 as a key event. However, for climate
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science the real breakthrough for a global view came when climate scientists could use international political developments as a window of opportunity to bring national climate change science into the international political arena in the early 1970s (Hart & Victor, 1993; Nolin, 1999). The global view that had grown within the scientific community was thus reinforced with visions of “Only One Earth” for the international environmental governance, starting at the UN Conference on the Human Environment in Stockholm 1972 and further reinforced at the UN Conference on Environment and Development in Rio de Janeiro, at which the UN Framework Convention on Climate Change was opened for signatures after intense negotiations. Kjell´en (2007) has described this development as an emerging diplomacy of sustainable development made possible partly because of the fall of the Soviet Union and the bipolar world order. The global framing is thus the result of a combination of national interests of a superpower, a scientific community with matching interests in international cooperation, and international political developments that allowed for an emerging diplomacy of sustainable development. Has the strong political framing of climate change as a global issue affected knowledge production in general and science in particular? It has without doubt favoured knowledge traditions that share this view. One illustration is the titles of IPCC reports, where Working Group I, which has provided the “Science of Climate Change” (IPCC, 1995) and the “Scientific Basis for Climate Change” (IPCC, 2001), has been dominated by physical sciences. It was not until the Fourth Assessment that this was qualified as the “Physical Science Basis” (IPCC, 2007b). The global framing has been productive in the sense of increasing our understanding of the climate system. But no framing is neutral and the links between framing and responsibility for doing something is a central issue in the global climate negotiations (Kjell´en, 2007). The exclusively global framing has also been challenged by an increasing number of local and regional initiatives to limit emissions (Bulkeley & Betsill, 2005; Selin & VanDeveer, 2007). There is today also an increasing recognition that knowledge production that focuses only on global processes is not sufficient for addressing how society should adapt to climate change (Pielke Jr. et al., 2007; Klein et al., 2007). Moreover, there are major efforts to scale down climate models in order to provide better resolution for impact studies as well as increasing number of studies focussing on local vulnerability. An Arctic example of the latter is the International Polar Year project Community Adaptation and Vulnerability in the Arctic Region. In general, there appears to be an ongoing shift in focus in climate science and governance towards the local, where the ACIA can be seen as an expression of this shift. ACIA’s initial aim was to gain a better understanding of the Arctic region but the ACIA went further in that the global framing was challenged by knowledge traditions that have local perspectives as their starting points. These often emphasise that climate change is only one of many interacting factors that will determine vulnerability and society’s capacity to adapt. Their visibility in the ACIA report shows how a regime – the Arctic Council – can give some actors a power base from which to highlight their spatial scale preferences and bring them into mainstream scientific knowledge production. I argue that the local emphasis is a result of the power base
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that indigenous peoples have in the Arctic Council. By contrast, the relative weakness of a sub-regional perspective in the ACIA could be a sign that sub-regional decision makers lack real influence in the Arctic Council. The concept of politics of scale is also useful in understanding the ACIA policy process, where one of the major issues was how the importance of the Arctic for global climate change should be articulated and if the Arctic Council should play a role in climate policy. These disagreements illustrate a political struggle over the appropriate analytical and governance levels. For the indigenous peoples’ organisations, the circumpolar perspective had many political advantages. First of all, it gave them a stronger power position than they would have had if the state-level is the governance level of choice. At this level, they have been, historically, at the periphery with the power core in capitals south of the Arctic. The circumpolar scale has also been important in giving them a role in a global context as spokespeople for nature (Nuttall, 2000; Downie & Fenge, 2003). For nation states, a circumpolar perspective can have advantages but only if it does not entail any threat to national interests. Because climate politics are so intimately connected to energy and also historically to economic growth, national interests were much more important in this assessment than in previous scientific assessments under the auspices of circumpolar political cooperation. Thus it should not come as a surprise that the regional arena was challenged, especially by the United States whose climate policies were most at odds with a message of the Arctic as a bellwether for climate change. The politics of scale is also useful for understanding the links between knowledge production and larger political developments. As an example I will use my observation of a surprisingly weak focus on the circumpolar level in many of the individual chapters of the ACIA scientific report, relative to references to the global and local contexts. It is surprising based on the fact that the assessment was carried out as part of the circumpolar political cooperation in the Arctic Council. There is no challenge to the circumpolar perspective and several efforts to accommodate it, but nevertheless it appears that the circumpolar context of the assessment process, as a whole, was not quite able to overcome the preferences embedded in different scientific disciplines. I suggest that the relative weakness of circumpolar perspectives could at least partly be understood by the geopolitical history of the region with its split during the Cold War into NATO and Warsaw Pact spheres of interest (Heininen, 2004). The current regime for environmental cooperation has either not been able to influence knowledge production for long enough or is not strong enough yet to have had a significant impact of circumpolar knowledge production and thus the scientific understanding of Arctic climate change. The lack of regional perspective may also reflect remnants of the colonial view of the Arctic within many natural science disciplines, where the Arctic is primarily of interest because of its global role. The efforts to try to accommodate the policy wish for circumpolar assessment would then be a sign of the growing role of Arctic political cooperation for knowledge production. The inclusion of more local perspectives could be an expression of peoples in the region striving for increasing independence, not only politically but also in questions about power over knowledge production about
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the region. The attempts to combine local indigenous observations across the Arctic may similarly mirror the increasing political circumpolar cooperation among indigenous peoples. What would be needed to merge local and global perspectives of Arctic climate change and thus help bridge different ways of framing an environmental issue in ways that can bring useful knowledge to the fore? The history of climate science illustrates that international cooperation can muster financial and technical resources for knowledge production with a certain scale preference, in turn reinforcing a particular framing. The choices that are made in setting up a monitoring system are an example. Facilitating the mustering of resources for new technical and administrative systems could thus potentially provide a venue through which knowledge production with different scale perspectives can be linked. However, the ACIA case shows that there are major barriers to be overcome, such as poor communication between different scientific networks. There may also be a need to review the organisation of political cooperation so that responsibilities for different perspectives are not split into different organisations. Another lesson from the ACIA is that norms about what constitute legitimate knowledge can vary between regimes. To safeguard against an over-dominance of one particular preference or knowledge tradition and to ensure that more aspects of a challenge become visible, it would thus be wise to promote a diversity of assessment processes. Here the history of the ACIA is sobering. In spite of indications that climate change may be especially rapid and severe in the Arctic, it was not until global and regional interests merged that this large-scale effort was launched. This raises questions of whether political preferences for global perspectives may have delayed knowledge syntheses about the impact of climate change in the Arctic. Combining lessons from different knowledge systems has been identified as key strategy in creating systems of adaptive governance (Folke, 2006). There is thus also a need to discuss how the regime context affects who is allowed to participate in assessments in order to ensure that diversity of scale perspectives become part of the mainstream climate debate.
4.5 Summary How and why do we now know that the Arctic climate is changing rapidly and that this will have major impacts globally and on indigenous peoples in the region? While a combination of political and scientific drivers in the history of climate science and of the Arctic can explain why Arctic climate change is framed as a global issue, the existence of an Arctic regime with strong norms of indigenous participation appears as a major driver for highlighting the impacts on indigenous peoples in the region and the complexity of local impacts and vulnerabilities. However, it also highlights that this regional assessment only to a limited extent addressed impacts on non-indigenous peoples, possibly because a sub-regional focus had no support in the structure of the Arctic Council cooperation.
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Focusing on vertical interplay and the politics of scale, this case study of the ACIA shows that the existence of a dominant global regime can delay regional knowledge production. Moreover, the weak regional political response in the ACIA policy document to address the vulnerability of the region suggests that the role of new knowledge for policy was constrained by an existing frame of climate change as a global political issue. Acknowledgements The research presented in this chapter was carried out during my PhD studies at the Department of Water and Environmental Studies, Link¨oping University, Sweden, where I wish to thank my advisors at the Centre for Climate Science and Policy Research.
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Chapter 5
“New Governance” in the Arctic and Its Role for Supporting Climate Change Adaptation E. Carina H. Keskitalo
Abstract Formal Arctic governance has developed mainly since the 1990s when the eight-state Arctic Council was established to provide a common forum for national, indigenous peoples’ and environmental interests. The Arctic is seen as encompassing the northernmost areas of the Nordic states, USA, Russia and Canada, thereby including areas that will be among those impacted the earliest by the effects of climate change on sea ice and permafrost. However, most of the pollution affecting the Arctic is not released in the area, and cohesion among the states in confronting the climate change problem has been limited. Based in interviews with organisations involved in new governance initiatives (high level fora, NGOs and international organisations) in the Arctic region, this chapter discusses the capacity of the Arctic governance framework to support adaptation to climate change. The paper views adaptation in governance as requiring horizontal and vertical interlinkage between actors, and outlines the interlinkages between regional actors as well as the resources (including funding and legislation) perceived by the interviewees as available to the organisations. The paper concludes that organisational capacities will need to be strengthened for effective implementation of adaptive actions.
5.1 Introduction The development of the eight-state Arctic Council in the 1990s has been seen as a “symbol of the emergence of the Arctic as an international region” (Young, 2000, p. 1). The Arctic is seen as encompassing the northernmost areas of the Nordic states, USA, Russia and Canada, including areas that will be among those most early impacted by and vulnerable to climate change (Arctic Climate Impact Assessment [ACIA], 2004, 2005). The region is also strongly influenced by globalisation, and the vulnerability of the area to, among other things, international market
E.C.H. Keskitalo (B) Department of Social and Economic Geography, Ume˚a University, 901 87 Ume˚a, Sweden e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 5,
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changes that may affect the possibilities to adapt to climate change (Keskitalo, 2008). A number of different organisations are active in the Arctic: the Arctic Council formalised cooperation between states, indigenous NGOs and among other things environmental organisations. In addition other “new governance” organisations have developed on sub-regional or regional organisations levels, organisations that may transcend pure state steering by also taking in indigenous peoples’ organisations and other interests not traditionally represented (Eberlein & Newman, 2008). In the Arctic, these organisations often include a large focus on the environment and, visible for instance in the 2004 Arctic Climate Impact Assessment co-developed by the Arctic Council, also on climate change (ACIA, 2004, 2005). This focus on the environment and climate change among developing regional bodies makes it important to view the capacity of such “new governance” organisations to support adaptation to climate change. Many studies note that increased adaptive capacity is fundamental to sustainable development and to limiting vulnerability to external changes such as climate change (Smit & Wandel, 2006). In global environmental change literature, vulnerability has been broadly defined as the “capacity to be wounded” (Kates, Ausubel, & Berberian 1985, p. 17). Vulnerability is related to both the sensitivity of systems and their capacity to adapt, and draws attention to “what amplifies or mitigates the impact of . . . change” and “channels it towards certain groups, institutions, and places” (Downing, 1991, p. 380, quoted in Rayner & Malone, 1998, p. 240). Adaptive capacity can be seen as the potential for adaptation overall, within which particular adaptations (potential or ongoing, actual adaptations) may take place (Brooks, 2003). The concept of adaptive capacity highlights the aim to enhance the broader ability of a system to cope with change-related risks and opportunities, determined by the political, economic and other resources available to actors (Smit et al., 2000; Smit & Skinner, 2002). Adaptive capacity for a governance system would thus fundamentally entail coordination and resources including availability of and access to resources by decision makers, and for instance the development of feedback systems from the local level to regional and national government (Smit & Pilifosova, 2001; Moench & Dixit, 2004). Viewing vulnerability and adaptive capacity thus “emphasizes the degree to which the risks . . . can be cushioned or ameliorated by adaptive actions that are or can be brought. . . within the reach of populations at risk” (Downing, 1991, p. 380, quoted in Rayner & Malone, 1998, p. 240). This article aims to evaluate the way in which “new governance” in the Arctic may support building adaptive capacity, by developing interaction or “interplay” between organisations towards steering decision-making on climate change in the Arctic. The concept of governance is employed to focus on the multi-level and multi-actor character of decision-making, where “new governance” measures are seen as those including other actors than only the state, such as NGOs or private interests in new forms of steering (Eberlein & Newman, 2008). The Arctic Council can be seen as an example of such new governance by including both representatives of eight Arctic states and of indigenous NGOs in the area, as well as a number of prominent Arctic environmental NGOs as observers. Other organisations include
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the Barents Euro-Arctic Council (BEAC) which holds representation from Norway, Sweden, Finland and Russia as well as indigenous NGOs on both national and regional levels in the countries. The Northern Forum is another example, including regional county representatives in a number of states over a wider area than the Arctic (including among others Mongolia and Japan). This makes it relevant to assess, for instance, to what extent there exist networks between these organisations and integration between their various levels of organisation, and if so, between which levels or on which issues. Overall, theories regarding multi-level and organisational adaptation can be utilised to identify the resources, resource distribution and interaction between units – or, the fit, interplay or multiplexity, and resources/slack – that may be required in order to build adaptive capacity among organisations in the Arctic governance network. The adaptive capacity of organisations and institutions can be seen as related to how well they are adjusted to deal with the particular problems of climate change, and to what extent they are able to form relevant interactions and draw upon relevant resources for these, as well as to what extent they have access and influence with national decision-makers and linkages to national policy. The extent of such organisation is part of determining the adaptive capacity and routes of adaptation open to individual actors. Is it possible for local actors to effect regulation, for example through institutionalised national-regional-local feedback possibilities? In full, then, this chapter aims to study: What is the capacity of international Arctic governance to support climate change adaptation, as expressed through terms such as fit and slack? To what degree does vertical and horizontal coordination (interplay) to support adaptation exist within governance systems? The study may serve to illustrate the problems and intricacies of multi-level governance, where for instance “governance systems” may be integrated only to some extent, and may lack certain capacities of formal decision-making and implementation through which decisions are put into practice in domestic contexts. They may also be burdened with large tasks for which they may be under-funded, potentially being forced to focus only on short-term projects: overall, limiting the potential for “new governance” networks to a large extent to informational activities or activities influencing political agenda-setting.
5.2 Theoretical Background: Conceptualising Adaptive Capacity Adaptive capacity is fundamentally a complex concept, dealing with the capacities of a system to adapt to change. Approaches related to change on multiple scales have included for instance the Institutional Dimensions of Global Environmental Change (IDGEC) project led by Oran Young, which has focused on the terms fit, interplay and scale to determine how well human institutions are adjusted to specific environmental problems or resource management. Even if this approach is not focused on adaptive capacity as such, it can be used to provide an “institutional analytics” (Young, 2002, 2003). The description also shows some similarity
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to conceptualisations of adaptive capacity in the context of business management, a theoretical basis that will also be drawn upon here. The description here will mainly focus on fit and interplay as a means of undertaking such an analysis, and on related terms used in management adaptation literature. The concept of fit is defined by Young as “a matter of (in)congruity between properties of the relevant ecosystems and attributes of the institutions created to guide human interactions with these biophysical systems” (Young, 2003, p. 378). Misfit may here be a result of, for instance, in the case of Exclusive Economic Zones to limit fishing, jurisdictional fragmentation with unclear authorities, the dominance of specific managerial perspectives (such as discard of bycatch) and the obsolescence of governance arrangements (such as limited understanding of the pace of technological change making for increased fishing effectivity). Thus, even if these problems are well known, there exist interest groups in the fishing industry that benefit from the current situation and that are in close relationships with government, limiting the incentives for changing the system towards maintenance of the resource basis (Young, 2002, 2003). In this work, the focus will be placed on how well organisations perceive that they can deal with the issue of climate change, i.e., how well they believe that they can fit or target their work to address climate change. While fit necessarily refers to a larger number of characteristics than those discussed above, such as complexity of the ecosystems to be governed, this provides an assessment centred on organisational self-perception. Young further discusses the concept of interplay, which “has to do with interactions among distinct institutions either at the same level of social organization (horizontal interplay) or across levels of social organization (vertical interplay)” (Young, 2003, p. 378), and where different actors may see different aims of their work. Young illustrates the problem of interplay with the example of global wood markets that increase state incentives to harvest timber even if that limits local and long-term sustainability (Young, 2002, 2003) for forest ecosystems. The concept of interplay is thus strongly related to vertical and horizontal dimensions of the organisation of a governance network, although Young himself does not use the term governance in this context. Similar concepts to that of interplay have been put forward in literature on adaptation in a management context. Such a concept is multiplexity, which “refers to the number and diversity of relations between actors in organizations or interorganizational networks”; multiplex relations would mean that parties meet in different settings and across different parts of an organisation, thereby supporting knowledge interchange (Staber & Sydow, 2002, p. 414). Staber and Sydow judge that in order to increase adaptive capacity, the closeness of coupling between different units should be rather loose, in the way that various units should be relatively independent and able to adjust to changing demands in different ways. From an enterprise context, Staber and Sydow also propose that organisations such as enterprises can be seen as continually adapting as measured by “redundancy” in terms of tasks (where different elements of a system can accomplish a variety of functions) or of relations (where actors are linked in several ways and failing relations can be duplicated or exchanged) (Staber & Sydow, 2002). The terms interplay and multiplexity thus both highlight similar capacities in dealing with interaction
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between units, to which the multiplexity problematisation adds discussions of the closeness of interaction. A discussion of redundancy adds a particular focus on the overlap and interchangeability of relations and tasks. Staber and Sydow also contribute a perspective that “excess resources” or possibilities to free resources may be required for an organisation to adapt to changing surrounding environments. To this end, they utilise a definition of “slack” as a “cushion of actual or potential resources”, including monetary or financial resources as well as some flexibility in re-defining organisational roles (Staber & Sydow, 2002). Slack is here seen as a crucial property of organisations’ adaptive capacity in response to external change (Ibid., 2002). In this work, interactions between organisations will be researched based on their own descriptions of the network within which they interact, and the horizontal and vertical qualities of this as well as the perceived overlap of their interactions and their dependency on each other. Given that the study is targeted at a broad governance network (rather than, for instance, a single issue-specific and formalised regime) and self-perceptions within this, the assessment of interplay will have a somewhat general character, akin to a network analysis. The redundancy of tasks and relations as well as the slack or excess resources interviewees perceive will be assessed, giving an estimate of capacities and limitations in supporting the development of adaptive capacity on climate change in Arctic governance.
5.3 Methodology The study was undertaken mainly through semi-structured telephone interviews during 2006. As a supplementary supporting material, a survey was undertaken of the policies of the respective organisations. The organisations chosen for the study were the main political actors identified through literature surveys of Arctic region literature (drawing upon Keskitalo, 2004) that may be seen as making up the Arctic “new governance” framework on an international level and with a particular focus on the European north. Rather than researching state positions and state capacities individually, then, this research has targeted and questioned the “value added” through new governance means that go beyond but often include the individual states. The organisations targeted here were, on an Arctic circumpolar scale, the Arctic Council and what may be seen as its “shadow-council” the Standing Committee of Parliamentarians of the Arctic Region (SPCAR), as well as on a broader scale the Northern Forum; in a northern European context the Barents Euro-Arctic Council (BEAC), the Nordic Council of Ministers, and the originally Finnish initiative on the EU Northern Dimension; on an NGO level, the major indigenous NGOs Inuit Circumpolar Conference (ICC), the Saami Council, and the Russian northern indigenous peoples organisation RAIPON; and, finally, the large major environmental NGOs WWF Arctic, and the UNEP/GRID-Arendal Polar programme. When possible, units of the organisations that particularly focused on environmental issues in relation to the Arctic were targeted. The organisations are further described below. For each organisation, interviews had to be adjusted to those who were able to agree to or
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have time for an interview, such as in the case of the Arctic Council the executive secretary of the largest working group, AMAP. In the case of RAIPON, researchers were referred for interview to the Center for Support of Indigenous Peoples of the North (CSIPN), which was established on RAIPON initiative to provide training courses on different issues for indigenous peoples locally. The paper can thereby be seen mainly as indicative of the capacities of these larger organisations. Interviews were undertaken, recorded and transcribed, and where necessary translated, by P¨aivi K¨ahk¨onen and Jaana Ojuva.
5.4 Background and Governance Network Through a number of actions since mainly the 1970s and most prominently following the end of the Cold War, the area seen as Arctic has come to encompass a region of up to fifteen per cent of the world’s land area and a population of four to ten million people – among whom some 13% are indigenous peoples (Arctic Monitoring and Assessment Programme [AMAP], 1998, p. 142)1 – ranging from the North Pole down to between 60–66◦ latitude around the globe (AMAP, 1998, pp. 142–179; Young, 2000). The construction of the region has taken place through among other actions the creation of the Arctic Council in 1996 and its predecessor, the Arctic Environmental Protection Strategy in 1991, as well as in the appearance of a host of scientific and political cooperation projects. The region now includes eight states over the circumpolar area, namely, the United States, Russia, Canada and the Nordic countries (Keskitalo, 2004). The Canadian-initiated Arctic Council, established 1996, is perhaps the focal organisation of the area, a regional “high-level forum” for cooperation between the eight Arctic countries. Climate has been a prominent issue for this and other organisations resulting in the Arctic Climate Impact Assessment (ACIA, 2004, 2005) which raised awareness of the climate issue. The Arctic Council is led by biannual ministerial meetings and composed of what are currently six working groups, mainly focused on the environment: the Arctic Monitoring and Assessment Program (AMAP), which has long been a priority initiative in which, among other things, environmental monitoring reports have been developed; Conservation of Arctic Flora and Fauna (CAFF); Emergency Prevention, Preparedness and Response (EPPR); Protection of the Arctic Marine Environment (PAME); Sustainable Development Working Group (SDWG); and, since 2006, the Arctic Contaminants Action Programme (cf. Arctic Council, 2006). Indigenous peoples hold a special status in the council as “Permanent Participants”, a group that in practice 1 Figure 5.1 in AMAP (1998, p. 142) gives details on total populations by Arctic area of each country, which can be calculated as 3 783 525 people in total for the Arctic. AMAP (1998, pp. 143–179) gives details on indigenous populations in Arctic areas for the US, Canada, Greenland, the Saami area and Russia calculable as an indigenous population of 285 615 people in total for the international Arctic region. Following AMAP’s assessment, the percentage of indigenous peoples in the Arctic is thus 13.25.
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has almost the same decision-making powers as states in the Council’s formal work (Keskitalo, 2004). The three longest-standing indigenous NGOs in Arctic cooperation, and the original three Permanent Participants at the time the Council was founded are the Inuit, Saami and Russian indigenous peoples’ NGOs: the ICC representing Inuit in Canada, Greenland, Russia and Alaska; the Saami Council representing Saami in Norway, Sweden, Finland and north-west Russia; and RAIPON representing northern Russian minorities, respectively. A number of organisations are also Observers to the Council, including most prominently environmental and research organisations as well as states outside the self-defined Arctic Eight states. Focusing on environmental organisations, the major organisations are the WWF’s International Arctic Programme (WWF Arctic) as well as the UNEP/GRID-Arendal Polar programme which is the United Nation’s Environment Programme’s polar centre. The Standing Committee of the Parliamentarians of the Arctic Region (SPCAR) was developed to provide a more informal discussion forum for Arctic Council members and is included as an Observer to the Council (Standing Committee of Parliamentarians of the Arctic Region, 2006). SPCAR’s development can to some extent be seen as a result of Nordic re-organisation following the end of the Cold War that had provided organisational impetus for the Nordic Council and Nordic Council of Ministers – cooperation bodies for the Nordic countries Norway, Sweden, Finland, Iceland and Denmark, including autonomous territories, and targeting inter-parliamentary and inter-governmental cooperation, respectively (Nordic Council, 2006). Another initiative at this time was that of Norway to develop a Barents Euro-Arctic Council (BEAC) on both intergovernmental and interregional levels and broadly focused on security in the “Barents region”: northern Norway, Sweden, Finland and north-west Russia. The Finnish initiative on the Northern Dimension, now accepted as a programme of the European Union, constituted a further development on security and especially cooperation with Russia in the European North. Beyond the BEAC, the county or sub-regional level of the states is also targeted in the Northern Forum initiative towards sub-regional cooperation in a wider area than the Arctic (including, for instance, China and Mongolia), founded in 1991 by Japan and with some input by Canada (Keskitalo, 2007). The county level is thus partly targeted by two of these organisations: as main partners of cooperation in the Northern Forum and as part in a two-tier structure in the BEAC. The sections below will evaluate the organisations according to (1) fit to the issue of climate change, (2) interplay within the defined Arctic governance system, and (3) the availability of redundancy and slack, as well as perceived limitations on the capacity of the organisation to support adaptation to climate change
5.4.1 Fit to the Issue of Climate Change Given the characteristics of the Arctic organisational area, with a major focus on the environment, most organisations display a corresponding large focus on and
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awareness of environmental issues (the framework in which climate change has often been seen); however, organisations also show a large awareness of the societal implications and requirements posed by climate change. A focus on the environment is relatively general in many of the targeted organisations. Even in organisations such as the Nordic Council, a third of the work targets the environment, while other organisations such as the Saami Council, BEAC and the Northern Forum have units, working groups or partnerships dealing in particular with the environment. Human well-being, or sustainability, is seen as a large part of the organisation’s work, for instance with the UNEP/GRID-Arendal Polar Programme and the AMAP working group of the Arctic Council. Even if the Arctic Council started out focusing on the environment, the Sustainable Development Working Group targets broader sustainability issues. Many of these organisations could be seen as encompassing an Arctic issue area or discourse that deals in particular with the environment, indigenous peoples and subsistence (cf. Keskitalo, 2004). This issue area is described by the UNEP/GRID-Arendal Polar Programme interviewee in light of the issue of climate change: The main concerns are climate change in terms of the rate of change and the significance of impacts and a development, also the rate of development and preparedness and the protected areas to obtain economic benefits without losing traditional lifestyles . . . contaminants . . . marine fisheries, general protection of marine environment, lots of concerns about right to lands and properties among indigenous people, that covers the main [concerns] (J. Eamer, UNEP/GRID-Arendal, Polar programme, interview, April 12, 2006).
Climate change, and not only the environment or sustainability in general, is also a specific concern among the organisations. For instance, an interviewee at UNEP/GRID-Arendal noted that “Probably the bulk of work we do has some relation to climate change” (J. Eamer, UNEP/GRID-Arendal, Polar programme, interview, April 13, 2006). Different organisations work with climate change in a large variety of ways ranging from having developed policies on climate change, to conference statements and projects to follow-up the ACIA report or connection with climate change work through work in other fora (see Table 5.1). Some of these organisations have thus developed their own climate change policies, while others have worked mainly with projects that included a climate change focus. The role of project work on climate change ranged from being active in projects (a more limited role) to running or funding major projects. Having produced conference statements or work in other fora to follow up the ACIA, these reports were often targeted at awareness-raising and undertaken as a part of participation in an international Arctic context. Such actions were thus to some extent, part of the business-as-usual of these organisations, which could be seen as indicating a mainstreaming of the climate change issue into policy-making and awarenessraising; however, it could also be seen as indicating limited resources to target climate change specifically at that point for the organisation. Many of the interviewees highlighted the importance of the Arctic Climate Impact Assessment report (ACIA, 2004, 2005) in placing a focus on Arctic cooperation on climate change issues.
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Table 5.1 Self-identified areas of work on climate change (at the time the interviews were conducted)
Policy development Organisation AMAP (for the Arctic Council) SCPAR Northern Forum BEAC Nordic Council/Nordic Council of Ministers EU Northern Dimension ICC
Saami Council CSIPN WWF UNEP/Grid-Arendal Polar Programme
Developed policy
Projects
Conference statements
Self-identified work in other for a or generally to follow up ACIA report
X
X
X
X
X X (sector strategy)
X2 X3 X4
X (brief mention in Action Plan) X (Inuit Regional Conservation Strategy)
X
X X
X
X
X (under development) X (not specifically for the Arctic)
X5 X
X X
5.4.2 Interplay Within the Defined Arctic Governance System 5.4.2.1 Vertical and Horizontal Interplay In order to review the extent of vertical and horizontal interplay, organisations were asked to define the network within which they interact on the climate change issue with relevance for the Arctic. Most organisations described a very large network, including Arctic Council meetings, ongoing projects under the Arctic Council, international conferences on the issues and work in other organisations, as well 2 Within
the Arctic Council’s Sustainable Development Working Group. funding strategy for climate projects with Nordic Council of Ministers, about 2 million
3 Common
DK. 4 Common funding strategy for climate projects with Barents Euro-Arctic Council, about 2 million DK. 5 In own local-level projects including indigenous peoples’ adaptation to climate change, as well as in the UArctic Global Change Network and Climate Change Course development. The UArctic (University of the Arctic) was developed as an independent initiative under the auspices of the Arctic Council from 1997 onwards.
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as at the global level. Even if many of the organisations are active in events on other levels (and this listing is not exhaustive), predominant areas of organisation can be identified. Clear expressions of multi-level vertical networks: Both the ICC and Saami Council emphasise their international as well as multi-level work. For the ICC this includes work in the United Nations context on sustainable development, with indigenous peoples’ international processes, as observer to other organisations such as the International Whaling Commission, in the Indigenous Peoples Secretariats Board, and participating in events such as the second International Conference on Arctic Research Planning, as well as working with national governments and regional self-government. To some extent, also the WWF Arctic interacts within multi-level networks, including national research bodies such as the Norwegian Polar Institute, Arctic Council and Arctic Council programmes (T. Folkestad, WWF Arctic, interview, May 9, 2006), but focusing to a large extent on research organisations rather than bodies linking to a local level. To exemplify, WWF was one of organisations that most clearly highlighted policy work within a multi-level context. WWF noted that they work both on the policy side directly towards international Arctic WWF as a whole. . . directly on international policy, through the Kyoto negotiations, and the EU-processes and so on. We also work with industries and businesses to reduce climate emission from businesses in various programs such as the climate savers program (T. Folkestad, WWF Arctic, interview, May 9, 2006).
More limited multi-level vertical networks: The interviewee at the North European Associate Secretariat of the Northern Forum noted that the Northern Forums orientation towards sub-regional county level makes it relevant for the Forum to work with national departments, for instance such as the Foreign Ministry, Ministry of the Environment, Ministry of Trade and Industry and also with the BEAC. In that way, the interviewee sees the Northern Forum as providing a regional connection to the Arctic Council (H. Viranto, Northern Forum, interview, May 2, 2006). The Northern Forum may also work with local partners in specific projects. Overall, the Northern Forum representative described this same network as setting the agenda for Northern Forum work, although placing the most focus on the Arctic Council process and its requirements for regional cooperation partners. The BEAC as an organisation on both regional and national levels, typically exhibits networks at both levels such as meetings between national-level civil servants inter-sectorially and internationally. The BEAC also includes joint meetings between representatives at both levels. Mainly horizontal networks targeted at similar institutions: Other organisations are more restricted to one or one type of cooperation partner: the EU Northern Dimension office noted that they work mainly with the Finnish Ministry of Foreign Affairs and corresponding departments in other countries as well as trade unions. UNEP/Grid-Arendal noted that they work mainly within the large UNEP family of
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organisations, i.e., at international level (although they also note that they are starting to work more with industry, for instance in awareness-raising programmes). Limited networks: Smaller organisations such as the CSIPN and also SPCAR noted that they work with specific and select organisations and experts, in some instances based on the networks of the organisations that they work the closest with. CSIPN, thus, draws upon RAIPONs multi-level linkages, while SCPAR note that they base their cooperation largely on working groups in the Arctic Council and associated academics (E. Krikunenko, CSIPN, interview, 20 June 2006). Indications can be seen that NGOs in the study are among those working towards a wide spread of target organisations (to the extent they have resources to do so), while organisational units with established vertical relationships to governments to a large extent target these linkages. 5.4.2.2 Interplay on Setting the Agenda for Decision-Making The interviewees were also asked what they saw as the constituencies for their organisation and at what levels these constituencies were situated. Actors commonly interpreted the question as dealing with agenda-setting, i.e., through which constituencies the priorities of the organisation were determined. This resulted in interviewees mentioning very large and varied constituencies, often more varied than the targeted networks of organisation described above. Most of the interviewed organisations focused on the constituent states, the Arctic Council in itself, or, in the case of the indigenous organisations, a multi-level interaction targeted on the indigenous nations within different countries. Most of the organisations perceived of constituencies on multiple levels. Many organisations also targeted both state and international level, often with a somewhat unclear differentiation between constituent states and international cooperation. The focus on the Arctic Council as a uniting and agenda-setting body for the region was prominent among many organisations. This held true for among others the UNEP/GRID-Arendal Polar programme, SCPAR, Nordic Council of Ministers, and (less surprisingly) AMAP. For the SCPAR, agenda-setting was seen as coming both from the Arctic Council and from the Parliamentarians independently – for instance, where parliamentarians had been active in lobbying for the establishment of the Arctic Council in its initiation, and, more recently, in taking the initiative to develop the Arctic Human Development Report (K. Myhre-Jensen, SCPAR, interview, May 10, 2006). Somewhat similarly, a representative at the Nordic Council of Ministers noted when asked about their constituencies: “I would say definitely the five [Nordic countries] plus three [semi-autonomous territories]. That’s my main stakeholders: that’s the countries who decide the goal post and who decide who gets the money” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). As secondary constituencies, he noted the Arctic Council (where the same countries draw up Arctic-relevant guidelines), which also included the Permanent Participants and working groups (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). Similarly, the AMAP representative targeted the Arctic Council and stakeholders involved through the Council, although noting that this does not include
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regional or local interests (L-O. Reiersen, AMAP, interview, May 5, 2006). In practice, some agenda-setting thereby focused on the national and international level – on actors directly involved in the network, and with whom direct linkages were established. Despite focusing on an Arctic Council context, some representatives also noted the multi-level and also international character of agenda-setting beyond the Arctic region: “I think the issues tend to be determined by priorities that are set partly through Arctic council, partly through UN initiatives, particularly multilateral multinational environmental agreements such as the protocols of the conventions on climate change and biodiversity, sustainable development.” (J. Eamer, UNEP/GRID-Arendal, Polar programme, interview, April 13, 2006). A similar perspective on the multi-level character of agenda-setting came from the BEAC, partly from the ICC, and WWF representatives (H. Haapala, BEAC, interview, June 1, 2006; T. Folkestad, WWF Arctic, interview, May 9, 2006). Another perspective centred on the indigenous nations, emphasised by the Saami Council, CSPIN and the ICC. ICC highlighted that even if the Arctic Council is important for agenda setting, vertical (regional-local) as well as horizontal regional linkages within the ICC were crucial. “Each of these regions [Alaska, Canada, Greenland and north-east Russia] have their own agent delegates [and] diverse organisations and those are the ones who come up with issues to be taken to the international arena, to our general assemblies.” (C.C. Olsen, ICC, interview, May 30, 2006). Priorities were also seen to differ somewhat between regions as well as from case to case: “in Greenland it could be issues about marine mammals, in Canada it could be issues about social problems maybe, in Alaska it could be about oil and gas development, and in Chukotka it could be about cultural survival” (C.C. Olsen, ICC, interview, May 30, 2006). CSPIN in particular highlighted the focus on local level and practical training and education programmes, as well as consulting, information and practical assistance for indigenous communities: “Every day we get letters from communities and settlements of the indigenous peoples with questions and requests on different issues” (E. Krikunenko, CSIPN, interview, June 20, 2006). A focus directly on local constituents was however not pronounced, and non-indigenous local groups were assumed to be covered through state or federal interests: “within the Arctic system there is very little contact with local government” (K. Myhre-Jensen, SCPAR, interview, May 10, 2006). Some actors also noted that what they saw as the dominant actors were still defining what could be done under an Arctic label. “One of the challenges I see is that we [as indigenous peoples] are still not able to define our own problems, the challenges . . . still we have to kind of define our problems to fit into the countries’ priorities or the NGO’s priorities” (G-B. Retter, Saami Council, interview, May 18, 2006). Somewhat similarly, but without focusing on an indigenous perspective, one interviewee with connections to several of these organisations noted that: in these councils, the decisions are made by consensus. So without consensus there are no decisions. So you have to find the biggest common denominator, which isn’t always so big.
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. . . So it is about finding compromises, but of course you can have an influence on that through lobbying actively and negotiations (Erik Ulfstedt, interview, May 10, 2006).6
5.4.2.3 Limitations to Interplay Interviewees were also asked if there were any factors that limited their interaction or linkages to what they saw as relevant organisations. Largely, interviewees noted that the linkage to policy and implementation in each state cannot be taken for granted. For instance, “[the] traditional problems you have in all sorts of international parliamentary work . . . [are] to have the work known in the parliament and in all the fora of importance. Because that has to be done by each member in each parliament in each state” (K. Myhre-Jensen, SCPAR, interview, May 10, 2006). An illustration of the complexity that interaction may require can be seen in the problems perceived in that the Nordic Council of Ministers includes one overarching ministerial cooperation council (foreign ministers) and other sectoral councils, while Arctic cooperation focuses on cooperation between foreign ministers. The Arctic Advisory Board of the Nordic Council of Ministers includes the function to support Senior Arctic Officials of the Nordic countries with knowledge on the environmental and sustainability issues; however, these are often part of other jurisdictions than the foreign ministry – sometimes resulting in goal conflicts. For instance: “I have different people I need to serve here, and they normally have their different . . . national agendas . . .Trying to steer all that and at the same time sort of accommodate the chairmanship . . . [which] rotates . . . I need to balance all this” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). This question of how to manage interplay is also apparent for other actors. AMAP notes that “we try to work with all eight Arctic countries . . . or the agency or the ministry nominated by the ministers, to be the key contact, and then of course we try to communicate with them to expand the network in each country to involve other partners, universities and others that we know are interested” (L-O. Reiersen, AMAP, interview, May 5, 2006). Actors note that there are gaps in this cooperation. For instance AMAP notes that we have a lot of problems. One of the main problems is to secure or to achieve . . . good contributions from all Arctic countries. That’s not all the eight Arctic countries that contribute as much as we would like them to have. . . . On the level to provide experts, level to provide data, the openness and the access to information and access to territories . . . and to receive scientific, reliable data (L-O. Reiersen, AMAP, interview, May 5, 2006).
The AMAP interviewee also notes the different capacities of countries to contribute to Arctic cooperation: “The biggest problems [to gain input] are in Russia 6 Erik Ulfstedt personifies some of the issues of limited person resources: as ambassador at the Ministry of Foreign Affairs, Finland, he was at the time the interview was undertaken in charge of Arctic issues and Antarctica, representative in the Arctic Specialist Committee in Nordic Council of Ministers, and Senior Arctic Official in Arctic Council, deputised for the minister. He had previously also been the Finnish representative to the Barents Euro-Arctic Council.
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and in United States” (L-O. Reiersen, AMAP, interview, May 5, 2006). For the US, one actor notes that “our main problem in fact is . . . to get the American politicians more interested in the high north” (K. Myhre-Jensen, SCPAR, interview, May 10, 2006). Similarly, funding and resources for environmental work from Russia has been seen as limited: “the current tendency is that the Russian government has not prioritised the environmental issues very high” (H. Haapala, BEAC, interview, June 1, 2006). Actors also note that it has been difficult to make Russia feel included in cooperation, for instance, in the Northern Dimension (M-L. Vuorenp¨aa¨ , EU Northern dimension, interview, May 17, 2006). However, following the ministerial meeting 2005, the aim has been that the “Northern Dimension will become genuinely common politics, that the new guideline will be developed together with Russia, Norway and Iceland . . . and it will be truly common. . . . This is a challenge.” (M-L. Vuorenp¨aa¨ , EU Northern dimension, interview, May 17, 2006). As a result, it is difficult to achieve “parliamentary work in comparison to all the Arctic states” (K. Myhre-Jensen, SCPAR, interview, May 10, 2006). The regional level, represented by the Northern Forum, is mainly included through joint projects, and in the BEAC through cooperation inside the organisation.
5.4.3 Redundancy and Slack 5.4.3.1 Redundancy of Tasks and Relations Redundancy of tasks and relations can be seen as supporting adaptive capacity through, among other things, establishing overlapping linkages between actors, making it possible to duplicate failing relations or gain knowledge through several different channels. Asked about the ways in which they meet and how they interact over different time periods, interviewees note that the predominant way of acting together with other institutions is through projects, which necessarily have a relatively short time span of up to four years. Projects are used to include representatives from different regions or interests within an organisation (such as the Arctic Council or Northern Forum), or to develop cooperation between organisations in joint projects. Given this focus on projects, coordination between the different levels and organisations to a large extent takes place through integration of priorities in meetings as well as development of priority listings. Within these groups, there is a large redundancy of relations. The Nordic Council of Ministers reported that their Arctic Advisory Board, made up of all the Nordic states and autonomous territories, meets annually to determine the distribution of funding for applications made to the Nordic Council of Ministers’ Arctic Cooperation Programme. In addition, we also meet at the Arctic Council meetings. . . . the people who sit in the Nordic Council of Ministers’ Advisory Board are the same who sit in the Arctic Council. So, since we are all there, we might as well meet up and have a small little Nordic meeting in the margins of the Arctic Council meeting. ... So I would say that coordination is good
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in the sense that we meet in other frameworks (N. Bock, Nordic Council of Ministers, interview, May 22, 2006).
Similarly, the AMAP Programme of the Arctic Council reported that they have “close cooperation with the Barents Cooperation and the Nordic . . . to avoid that the Barents cooperation initiates same kind of studies that we do, since in the end it’s the same soldiers, the same scientists” (L-O. Reiersen, AMAP, interview, May 5, 2006; author’s emphasis). Similar views on the need to avoid replicating work were also expressed by the Nordic Council of Ministers interviewee (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). While a redundancy of relations can be observed, its combination with a redundancy of tasks across organisations where these are not entirely coordinated may complicate coordination in a situation with limited resources: “when it comes into individual research, in the Arctic, I mean that could run into 10 million euros and we only have one [million]. So that’s . . . a challenge, I . . . need to focus on what we need to do . . . We are not supposed to do everything in the Arctic, we haven’t got the funds for that. [We have to] find our role” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). To find such a role may seem like a strategic choice – to find one angle and stick with it – but this is not necessarily the case due to cooperation constraints. At the Nordic Council of Ministers it is noted that: “everything we do in the Nordic Council of Ministers Arctic cooperation needs to mirror what’s happening in the Arctic Council . . . we can’t suddenly do something completely different [to what] the same five countries do in the Arctic Council” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). As the Nordic Council of Ministers is also only an observer in the Arctic Council, it does not participate in decisions that impact goals decided by the Nordic countries in the Arctic Council. For instance, the Nordic Council of Ministers does not get the same preparatory information for Arctic Council decisions as country representatives. “That means I need to do a lot of investigation work every time I go there, to speak to each of the five countries, to receive the material through them, ask them what happened in that meeting behind closed doors” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006).
5.4.3.2 Slack and the Issue of Limited Resources Resources are a crucial issue for most of the interviewees, and one that determines how much impact an organisation can have. Interviewees placed a large focus on monetary resources and the problem of being under-funded, which also to some extent related to the problem of being under-staffed. Noting the limited budget of the Nordic Council of Ministers Arctic Cooperation Programme, the Nordic Council of Ministers interviewee states that “We can’t really make a significant [monetary] impact through the Nordic Council of ministers, we can sort of coordinate, we can share information, and we can hold seminars and workshops” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). Similarly, the Saami Council interviewee notes:
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The main problem is capacity. Because, well there are so many things we should, we could have done . . . So, if you take [the] simple example [of] the Arctic Council . . . we are welcome to join different committees, different reports, dealing [with] committees and so on . . . But we don’t have enough expert people to nominate with the Saami background, or we don’t have money (G-B. Retter, Saami Council, interview, April 18, 2006).
This illustrates that while there exists a framework or redundancy in terms of relations and for at least some of the tasks that are undertaken in the organisations, however, there may not exist sufficient financial resources or people available to support the larger framework of tasks that could be undertaken by the organisations under environmental or climate change priorities, for example. In comparison not only with central tasks but with those that may be attributed to the broader array of organisational priorities, task redundancy may thus not be sufficient despite overlap in certain areas. The problem in particular with slack or resource availability is common to the Nordic Council of Ministers and Arctic Council as well as to indigenous groups: “the Arctic Council doesn’t have any money itself, it relies on funds from different countries, and we don’t have a state budget” (G-B. Retter, Saami Council, interview, April 18, 2006). Also other organisations have limited budgets, made up of relatively small state contributions, such as for the Nordic Council of Ministers (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). Similarly, indigenous organisations need to apply for funding to participate in any additional ventures not already funded: “we have a capacity to follow the kind of political level and working group level but when it comes to particular projects. . . We are not able to fully propose projects ourselves ... [instead] we try to have input in them [statefunded projects] as far as we can” (G-B. Retter, Saami Council, interview, April 18, 2006). Another interviewee states, on a similar note, that “the limits of our influence are usually in the financial issues. We don’t have within our unit financing for the projects in practice.” (M-L. Vuorenp¨aa¨ , EU Northern Dimension, interview, May 17, 2006). Also AMAP notes this limitation: We are struggling with very limited economy. So, of course, that is a restriction in what we can do. We are all the time struggling to get money for general operations of the secretariat and additional functions but also to produce reports, where we can collect the data we need, handle it and report as we would like to. So there is a lack of resources, financial and man, so that is a problem. (L-O. Reiersen, AMAP, interview, May 5, 2006).
Given this constraint, however, the limited resources can have targeted impacts: The Nordic Council of Ministers interviewee notes that even if their possibility of acting on Arctic issues is very small compared to other larger actors such as Canada, which places a lot of funding on the Arctic, the Nordic Council of Ministers can still support smaller actors with what may be considerable contributions to them. “You might say we have an impact on RAIPON or the Saami Council: they have these small projects which for them are not small, but for us they are sort of small.” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). The access to resources is also limiting the possibilities to plan long term work: “we are able and we do work on long term goals, it’s just that we often don’t have security of funding beyond a short term, which makes it difficult to plan longer term
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initiatives.” (J. Eamer, UNEP/GRID-Arendal, Polar programme, interview, April 13, 2006). Much of the funding attributed to Arctic cooperation may also be consumed by the costs for establishing and organising cooperation, rather than only by the projects as such, given the size and distances of cooperation: “when you hold these meetings around the world it takes time and money . . . it is expensive” (H. Viranto, Northern Forum, interview, May 2, 2006). Problems also exist in terms of limited person hours or task redundancy to deal with large work loads: for instance, the Nordic Council of Ministers interviewee is singly responsible for determining funding for a call for Arctic research grants to the organisation, “so when we reach that deadline, suddenly I have a lot of work with the Arctic” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). A number of quotes express this problem and the focus placed on it: “The scope of work on climate change in the Arctic is already very big, and there are so many new issues to follow . . . So many projects that could be followed-up on. So it’s mainly a capacity problem” (T. Folkestad, WWF Arctic, interview, May 9, 2006). “You can’t do this alone. It takes so much expertise and on the other hand the scope of the work is so broad that you can’t even examine all the details” (Erik Ulfstedt, interview, May 10, 2006). As a result, “in a kind of ideal world we would have a whole team of people working on Arctic climate change, but at the same time for the organisation we need to do this work as efficiently as we can, drawing also on people in national organisations of WWF in the Arctic countries because we have a national representation in each of the Arctic countries” (T. Folkestad, WWF Arctic, interview, May 9, 2006). The situation in terms of human resources is thus also emphasised in terms of having to relate to the large body of Arctic governance institutions.
5.5 Conclusion: Perceived Limitations to Adaptive Capacity The study illustrates that there exists a redundancy in terms of relations, some redundancy of tasks in relation to central tasks that are common to the organisations, and a relatively large consensus on actions needed; however, the problem lies in having people available who can fulfil these functions (task redundancy) or resources to deal with the wide agenda that many of the organisations hold, not to mention slack to adapt to changing priorities. Many interviewees expressed a frustration at not being able to deal with wider concerns or fund larger or more work. To a large extent, interviewees related perceived limitations in their capacity to act to problems of short-term and perceived limited funding for their goals. For instance, the short-term project focus was seen as limiting the impact that could be had, as priorities had to be delimited into short-term and fundable goals. Some actors also noted that as a result, the way in which they can affect capacity-building is to a large extent through assembling knowledge and spreading awareness of, for instance, the climate change issue. As was mentioned previously, “[w]e can’t really make a significant [monetary] impact through the Nordic Council of Ministers, we can sort of
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coordinate, we can share information, and we can hold seminars and workshops.” (N. Bock, Nordic Council of Ministers, interview, May 22, 2006). Others, however, noted that even having common projects with other actors is a support to them, as it may provide them access for instance to the state decision-making level or to planning policy (cf. H. Viranto, Northern Forum, interview, May 2, 2006). The possibility for Arctic governance actors as defined here to contribute to raising adaptive capacity to climate change in the Arctic is thus curtailed by limited funding and slack, limited redundancy of relations and relatively large dependence on states, but supported by relatively large agreement on issues and well developed interplay among the targeted organisations. Issues of agenda-setting and power were seen as playing a large role, and actors often perceived that a short-term and lowest common denominator focus prohibited them from doing as much as they saw the need for. The general theoretical framework presented here is thus able to relatively well deal with the main concerns of interviewees regarding their institutional performance. If the results here were to apply also more broadly than in this limited survey, there are important implications for interactions with states and for the degree to which new governance frameworks beyond but including the state can support adaptation. For instance, if “new governance” is severely under-funded or under-manned, the functional scope of organisations with a large sustainable development or climate change agenda may be compromised. Limited direct integration to the domestic state context and decision-making apparatus may also result in that issues may not be taken up within state decision-making even if these states are part of the “new governance” network. In addition, the requirements of maintaining and organising interplay may take a substantial toll on organisations, to the extent that it may influence their capacity to undertake many other tasks.
Interviews Nicholaj Bock (Interview 22 May 2006). Senior Advisor, Nordic Council of Ministers. Joan Eamer (Interview 13 April 2006). Manager, Polar Programme, UNEP/GRID-Arendal. Tonje Folkestad (Interview 9 May 2006). Climate Change Officer, WWF Arctic. Henna Haapala (Interview 1 June 2006). Working Group on Environment, Barents Euro-Arctic Council. Ministry of the Environment, Finland. Elena Krikunenko (Interview 20 June 2006). Outreach Coordinator, Center for Support of Indigenous Peoples of the North (CSIPN). Kjell Myhre-Jensen (Interview 10 May 2006). Secretary of the Chair, Standing Committee of Parliamentarians of the Arctic Region (SCPAR) (also head of section in the Norwegian parliament). Carl Christian Olsen (Interview 30 May 2006). ICC (Greenland), Member of ICC Executive Council (also member of the Board of the Arctic Council Indigenous Peoples Secretariat). Lars-Otto Reiersen (Interview 5 May 2006). Executive Secretary, AMAP Secretariat. Gunn-Britt Retter (Interview 18 April 2006). Leader of Arctic and Environment Unit, Saami Council. Erik Ulfstedt (Interview 10 May 2006). Ambassador, Ministry of Foreign Affairs, Finland, in charge of Arctic issues & Antarctica; Arctic Specialist Committee in Nordic Council of Ministers; Senior Arctic Official in Arctic Council, deputised for the minister (previously also active in the BEAC).
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Hannu Viranto (Interview 2 May 2006). North European Associate Secretariat, Northern Forum. Marja-Leena Vuorenp¨aa¨ (Interview 17 May 2006). Counsellor, Unit for Northern Dimension. Ministry for Foreign Affairs Finland.
References Arctic Climate Impact Assessment (ACIA). (2004). Impacts of a warming Arctic: Arctic climate impact assessment. Cambridge: Cambridge University Press. Arctic Climate Impact Assessment (ACIA). (2005). Scientific report. Cambridge: Cambridge University Press. Arctic Monitoring and Assessment Programme (AMAP). (1998). AMAP assessment report: Arctic pollution issues. Oslo. Arctic Council. (2006). About. Retrieved February 13, 2006, from http://www.arcticcouncil.org/en/main/infopage. Brooks, N. (2003). Vulnerability, risk and adaptation: A conceptual framework. Tyndall Centre working paper No. 28. Manchester: Tyndall Centre for Climate Change Research. Eberlein, B, & Newman, A, L. (2008). Escaping the international governance dilemma? Incorporated transgovernmental networks in the European Union. Governance: An International Journal of Policy, Administration, and Institutions, 21(1), 25–52. Kates, R.W., Ausubel, J.H., & Berberian, M. (Eds.) (1985). Climate impact assessment: Studies of the impact of climate and society. Chichester: John Wiley and Sons. Keskitalo, E. C. H. (2004). Negotiating the Arctic. The construction of an international region. New York and London: Routledge. Keskitalo, E. C. H. (2007). International region-building. The development of the Arctic as an international region. Cooperation and Conflict, 42(2), 187–205. Keskitalo, E. C. H. (2008). Climate change and globalization in the Arctic: An integrated approach to vulnerability assessment. London: Earthscan Publications. Moench, M., & Dixit, A. (Eds.) (2004). Adaptive capacity and livelihood resilience. Adaptive strategies for responding to floods and draught in south Asia. Boulder, Colorado, U.S.A: The Institute for Social and Environmental Transition, International and Nepal: Institute for Social and Environmental Transition. Nordic Council. (2006). Programme. Retrieved April 11, 2006, from http://www.norden.org/ nr/program/uk/index.asp?lang=6. Rayner, S., & Malone, E. L. (Eds.) (1998). Human choice and climate change. Volume three: The tools for policy analysis. Columbus, OH: Battelle Press. Smit, B., Burton, I., Klein, R. J. T., & Wandel, J. (2000). An anatomy of adaptation to climate change and variability. Climatic Change, 45, 223–251. Smit, B., & Pilifosova, O. (2001). Adaptation to climate change in the context of sustainable development and equity. In J. J. McCarthy, O. F. Canziani, N. A. Leary, D. J. Dokken, & K. S. White, (Eds.) (2001). Intergovernmental panel on climate change. Climate change 2001: impacts, adaptation, and vulnerability. Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge: Cambridge University Press. Smit, B., & Skinner, M. W. (2002). Adaptation options in agriculture to climate change: a typology. Mitigation and Adaptation Strategies for Global Change, 7, 85–114. Smit, B., & Wandel, J. (2006). Adaptation, adaptive capacity and vulnerability, Global Environmental Change, 16, 282–292. Staber, U., & Sydow, J. (2002, December). Organizational adaptive capacity. A structuration perspective. Journal of Management Inquiry, 11(4), 408–424. Standing Committee of Parliamentarians of the Arctic Region. (2006). Conference of Parliamentarians of the Arctic Region. Retrieved March 15, 2006, from http://www.arcticparl.org. Young, O. R. (2000). The structure of Arctic cooperation: Solving problems/seizing Opportunities. Paper prepared at the request of Finland in preparation for the Fourth Conference of
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Parliamentarians of the Arctic region, Rovaniemi, August 27–29, 2000, and the Finnish Chairmanship of the Arctic Council during the period 2000–2002. Retrieved January 16, 2002, from http:www.grida.no/parl/sac/sac1.htm. Young, O. R. (2002). The institutional dimensions of environmental change: Fit, interplay, and scale. Cambridge, MA: The MIT Press. Young, O. R. (2003). Environmental governance: The role of institutions in causing and confronting environmental problems. International Environmental Agreements: Politics, Law and Economics, 3, 377–393.
Chapter 1
Climate Governance in the Arctic: Introduction and Theoretical Framework E. Carina H. Keskitalo, Timo Koivurova and Nigel Bankes
Abstract The introductory chapter describes the objectives of this edited volume and provides a theoretical framework for considering the contributions of the various authors. The objective of the book is to take an institutional perspective on climate change in the Arctic discussing both mitigation and adaptation. Beginning with an account of the soft law institutions in the Arctic, the chapter then briefly canvasses the relevance of general legal norms that apply in the Arctic e.g. the law of the sea and international human rights. The theoretical framework is introduced by a discussion of key terms including mitigative and adaptive capacity and vulnerability. The chapter canvasses the different perspective of both international lawyers and international relations scholars and some of their terminology before concluding with summary accounts of the various contributions.
1.1 Introduction Climate change poses a challenge to societies all over the world. Mitigation (reducing greenhouse gas emissions) will help stabilize concentrations of greenhouse gases in the atmosphere at lower levels, thereby decreasing the risks of more severe climate change impacts. However, adaptation to climate change – responding and adapting to the results of climate change – will be a necessity. The Intergovernmental Panel on Climate Change (IPCC, 2007) makes it clear that we are already committed to a certain amount of global warming and the implications thereof even if we were to succeed in stabilizing atmospheric greenhouse gas levels in the near future. The Arctic Climate Impact Assessment (ACIA, 2004, 2005) emphasises that the Arctic will in many respects serve as a barometer of climate change. Climate change
E.C.H. Keskitalo (B) Political Science, Department of Social and Economic Geography, Ume˚a University, 901 87 Ume˚a, Sweden e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 1,
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will occur earlier and the rate of warming will be greater than in other parts of the globe. Some of the effects of climate change have already been observed in the Arctic (ACIA, 2005). Beyond this, climate change in the Arctic will also have worldwide implications. The ACIA report indicates, among other things, further rising sea levels as a result of rapidly melting glaciers and thermal expansion of the oceans. In many parts of the region, thawing permafrost may impact infrastructure and transport. Intense and rapid change thus places a heavy adaptation burden on both Arctic ecosystems and the human institutions through which adaptation needs to take place, as well as a mitigation burden on the states that are part of the Arctic region as well as globally. This book considers two aspects of climate change from an institutional perspective. Firstly, the book focuses on how regimes, institutions and governance systems functioning in the Arctic or relevant to the Arctic may support mitigation of climate change. While greenhouse gas emissions in the region as such are relatively low, the industrialized countries that are part of the Arctic include high per capita greenhouse gas emitters (ACIA, 2005). Secondly, the book examines how the varying governance arrangements in the Arctic may support adaptation and the development of adaptation processes for the region. Governance is defined here as consisting of elements of steering in a region, including but not limited to the state, with the understanding that “new governance” through NGOs, soft law organizations in political fora and economic market actors, as well as legislation and international treaties, will influence adaptation and mitigation in the region (cf. Keohane & Nye, 2000; Adger, 2006). “New governance” can be defined as the non-binding, mainly normative means of steering that are developed for instance in soft law (cf. Eberlein & Newman, 2008). Such soft law and non-binding arrangements have been prominent in the Arctic, with the development of the eight-state Arctic Council “high level forum”, and the prominence of indigenous peoples’ and environmental NGOs, as well as science organizations. In this book, the focus has been placed on the political and legal aspects for the international region, including legal regulation and political governance relevant for the Arctic as well as new governance organizations in the international Arctic region. Legally, some focus is placed on selected international conventions that impact or have been designed for the region. Regional or even global international treaties and declarations may have specific implications in the Arctic, and here especially maritime law and the law relating to indigenous peoples will be examined. Politically, a large focus is placed on the international level and the softlaw structures that have emerged for the circumpolar Arctic region. The book also to some extent examines the role of states in mitigating and adapting to climate change impacts and the role of selected sub-national home rule or indigenous governments. While a more limited focus has been placed on the steering actions of economic market actors, such as transnational companies in the Arctic, some of the impacts of, for instance, the energy sector are illustrated in studies of mitigation. This introductory chapter is organized as follows. First, it outlines in a general manner the international governance framework that presently exists in the Arctic, and that is further analysed and described in subsequent chapters. Second, the chapter defines the concepts of mitigation and adaptation in the context
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of climate change. Third, and given the multi-disciplinary nature of the research venture involving scholars of international law and international relations (IR), the chapter also aims to provide some background to the diverging perspectives of these disciplines. The introduction concludes with a summary of the various contributions organized in accordance with the three main parts of the volume. The first part sets the stage by examining broad international and Arctic measures in response to climate change. The second part examines the interaction between climate change, the Arctic and global regimes such as the law of the sea regime, and the third part examines climate change in the context of institutions and governance regimes focused on the Arctic.
1.2 Introduction to the Arctic Governance Framework Before examining the governance system in the Arctic, it is pertinent to try to define how the Arctic has been conceived of as a political region with a specific delineation. The definition of the southernmost boundary of the Arctic is complicated since several different criteria can be presented. Possible southernmost natural boundaries are, for instance, the tree line (i.e., the northernmost boundary where trees grow) or the 10◦ C isotherm (i.e., the southernmost location where the mean temperature of the warmest month of the year is below 10◦ C). In Arctic-wide co-operation, the Arctic Circle and the internal Canadian delineation of the north at 60◦ N latitude have been those most widely used, the latter in North America and the former in Europe. Arctic regional cooperation has been developed to include eight states: the Nordic countries (Norway, Sweden, Finland, Denmark-Greenland, and Iceland), and Canada, Russia and the USA (through Alaska) (cf. Keskitalo, 2004) (Fig. 1.1). The eight-state region has been formalised through the development of a number of Arctic- or far northern-related bodies since the 1970s and most prominently the 1990s. Organisationally, the foremost example of Arctic region-building is the development of an Arctic Council in 1996, seen as a “symbol of the emergence of the Arctic as an international region” (Young, 2000). The Arctic Council has no independent legal status but is conceived of as an “international high-level forum” for these eight states, and with indigenous peoples’ organizations as “permanent participants”. The organization also includes a large involvement of environmental NGOs and science organizations (cf. Keskitalo, 2004; Koivurova & VanderZwaag, 2007). Given the institutional emphasis of most of the contributions to this volume, we generally refer to this politically based definition of the Arctic, as including eight states and areas ranging from between 60◦ N and the Arctic Circle to the pole. Much of the region falls under the sovereignty and sovereign rights of the eight states. Sovereignty has been established over all land areas in the area by the states.1 1 One exception is tiny Hans Island between Greenland and Canada’s Ellesmere Island over which both Canada and Denmark assert sovereignty and thus it was left out of the maritime boundary delimitation agreement between the two countries. For an analysis, see Carnaghan and Goody (2006) and Stevenson (2007).
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Fig. 1.1 AMAP area. Delineation of the Arctic as applied by the Arctic Monitoring and Assessment Programme working group of the Arctic Council (reproduced from AMAP, 1997, p. 6)
The three federal states (Russia, Canada and the US) accord varying kinds of mandates to their sub-administrative units (the state of Alaska, the northern territories of Canada, and the subjects of the Russian Federation). Finland, Sweden and Denmark are Member States of the EU, which provides a further layer of decision-making; for instance, a Northern Dimension of the EU has been developed on the initiative of Finland to deal with, among other things, relations with Russia. Greenland, which possesses extensive autonomous powers in the form of a home-rule government, has exited the EC and EU, to some extent as a result of a conflict over marine resource rights and trade. The states and their interactions both with the EU and in particular with home rule or semi-autonomous regional government are thus a major
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part of emerging governance relations in the Arctic. The states are also the only full members in the Arctic Council, and the resources they volunteer to devote to this and other Arctic organisations are of decisive importance for how these function. Below, we review the basic elements of the region’s soft law governance approach followed by a summary of the regional and global legal framework as it applies in the Arctic.
1.2.1 Soft Law in the Arctic The first stage of the institutionalised Arctic-wide co-operation started with the 1991 Arctic Environmental Protection Strategy (AEPS), advanced by Finland but with relatively large input from Canada in the drafting. The Strategy identified six priority environmental problems facing the Arctic (persistent organic contaminants, radioactivity, heavy metals, noise, acidification and oil pollution), identified the key international environmental protection treaties that apply in the region, and developed specific actions to counter the identified threats. The AEPS established four environmental protection working-groups: Conservation of Arctic Flora and Fauna (CAFF), Protection of the Arctic Marine Environment (PAME), Emergency Prevention, Preparedness and Response (EPPR), and the Arctic Monitoring and Assessment Programme (AMAP). Three ministerial meetings (after the signing of the Declaration and the Strategy) were held in this first phase of Arctic co-operation, generally referred to as AEPS co-operation (Koivurova & VanderZwaag, 2007). The establishment of the Arctic Council in 1996 broadened the mandate of the co-operation to common issues facing the Arctic (excluding military security) focusing on environmental protection and sustainable development. The four environmental protection working-groups of the Strategy were integrated into the structure of the Council, and one new working-group was established (the Sustainable Development Working-Group, SDWG). In the absence of a permanent secretariat, the work of the Arctic Council is heavily influenced by the priorities the chair-states lay out for their two-year chair period.2 Senior Arctic Officials (SAO), a group of highlevel officials, guides the work of the Council in between the ministerial meetings which occur every two years. The Arctic Council has also adopted new programmes related to environmental protection, such as the Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP), which was recently developed into a sixth working-group,3 and the Arctic Climate Impact Assessment (ACIA). The ACIA was undertaken as a large-scale scientific assessment of climate change impacts on the region’s environment, peoples (with a focus on indigenous peoples) and major resource-dependent sectors such as forestry and fishing (ACIA, 2005, 2004). 2 The first chair-state was Canada (1996–1998), followed by the United States (1998–2000, Barrow ministerial), Finland (2000–2002, Inari), Iceland (2002–2004), and the Russian Federation (2004– 2006). The current chair is Norway, which has announced, together with the two next chairs, Denmark and Sweden, that a temporary secretariat till 2012 will be established for the Arctic Council. 3 It was re-titled the Arctic Contaminants Action Program. See at http://arcticportal.org/acap. Retrieved August 20, 2008.
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Unique to the Arctic Council is the role the Council accords to the region’s indigenous peoples as permanent participants, a distinct category of membership in between members proper and observers. The most long-standing indigenous peoples’ organisations in the Council have been those of the Inuit, Saami and Russian northern minorities, but, more recently, additional groups have been accepted. The Arctic Council member states must consult the permanent participants and have generally adopted a process of consensus decision-making. In addition to the permanent participants there is a large group of observers consisting of inter-governmental and non-governmental organisations as well as other states active in the Arctic region, including, most recently, China (Koivurova & VanderZwaag, 2007). Beyond these organisations there also exists a multitude of other organisations. The Standing Committee of the Parliamentarians of the Arctic Region (SCPAR) describes itself as a “shadow Arctic Council”. Developed at the same time as the Arctic Council it provides a more informal forum for discussion between Arctic Council members and also acts as an Observer to the Arctic Council. Following the end of the Cold War, cooperation in the northern European area was also extended by the Norwegian initiative to develop a Barents Euro-Arctic Council (BEAC) on both intergovernmental and interregional levels to support security in the “Barents region”: northern Norway, Sweden, Finland and north-west Russia. In addition, the Northern Forum, founded in 1991 following a Canadian suggestion to Hokkaido, Japan, is an international organisation composed of sub-national or regional governments from ten northern countries with the general aim of improving northern cooperation. The BEAC and the Northern Forum are thus the organisations in this survey that include local or regional cooperation: for the Northern Forum as a primary aim, while for the BEAC as a part of a two-tier structure of national and regional cooperation.
1.2.2 Legal Frameworks with Relevance to the Arctic Within the Arctic region as defined, all the levels of law – international law, European law and national legal systems – come into play (Boyle 2000). In contrast with the “new governance” measures described above, the discussion here emphasises the role of the state and international conventions. The European Free Trade Association (EFTA) states of Iceland and Norway (with the exception of the Svalbard Islands, which was excluded from the EEA agreement by a special Protocol due to its unique status established through an international treaty in 1920 (Ulfstein, 1995; Treaty on the Status, 1920)) are bound by much of European law as Parties to the Agreement on the European Economic Area (1993). The precise legal status of indigenous peoples within each of the Arctic states varies as does the degree of autonomy accorded to such peoples but in general indigenous peoples are entitled to a degree of constitutional protection and special status (Arctic Human Development Report (AHDR), 2004). Territorial sovereignty accords the Arctic states additional maritime zones and a large portion of the Arctic waters falls within these states’ Exclusive Economic Zones (EEZs) or continental shelf. The core of the Arctic Ocean remains part of the
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high seas as do some areas enclosed by the EEZs of Arctic coastal states. The deep sea-bed is governed by the International Sea-Bed Authority, although the littoral Arctic states (with the exception of the US)4 are developing claims to the Commission on the Limits of Continental Shelf to extend their continental shelves to the extent permitted by Article 76 of the LOS Convention (Koivurova, 2008).5 There are also on-going and potential disputes over the location of some of the maritime boundaries, especially those between Canada and the US in the Beaufort Sea, and Russia and Norway in the Barents Sea, although in general the Arctic states have been able to resolve their maritime boundary disputes peacefully, via negotiations, conciliation and judicial procedures (Koivurova, 2002, pp. 56–64).6 International treaties and customary international laws obviously apply in the Arctic since the legal norms generated by custom or adopted in a treaty apply throughout the state’s sovereign territory and usually apply as well to those areas where states exercise sovereign rights, such as the EEZ. The eight states of the region are also members of many inter-governmental organisations, which, therefore, wield influence in the Arctic (AHDR, 2004). Some of the important international regimes and organisations have a prominent place in the Arctic governance, and a short overview of the most relevant conventions and inter-governmental organisations is therefore necessary. The United Nations Convention on the Law of the Sea (LOS Convention, 1982)– which largely codifies customary law of the sea binding on all states of the world – extends to the Arctic Ocean and more generally to all Arctic waters. The Convention, which is in force for all Arctic states except the US, provides basic regulation relating to all major uses of the seas (fisheries, navigation, offshore hydrocarbon exploitation etc.) and lays out the jurisdictional rights of states in the maritime field. With melting sea ice and increased open water conditions the law of the sea becomes much more important. Resource companies are actively re-examining the potential for exploiting known reserves of both hydrocarbons (e.g., Petro Canada’s Drake Point and Hecla natural gas discoveries (Chan et al., 2005) and hard rock minerals (e.g., Baffinland’s Mary River iron ore project on North Baffin island, Nunavut) as well as new exploration prospects. The increased access and extended navigations seasons will also entail corresponding risks for the Arctic environment. A connected convention to the LOS, the so-called Straddling Stocks Convention (Agreement for the Implementation, 1995), deals with the management of fish
4 The US is also mapping out its sea-bed but since it is not a party to the LOS Convention, it cannot (yet) make a submission to the Commission (Continental slope off Alaska, 2008). 5 See the submissions to the Commission on the Limits of Continental Shelf by the Russian Federation in 2001 and Norway in 2006, and reactions to these by other states, at the Commission’s website at http://www.un.org/Depts/los/clcs new/clcs home.htm. 6 The most recent was the conclusion of an Agreement between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home Rule Government of Greenland on the other hand, concerning the delimitation of the continental shelf and the fishery zones in the area between Greenland and Svalbard, Copenhagen, 20 February 2006 (signed 20 February 2006, entry into force: 2 June 2006)
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stocks which straddle the EEZs of coastal states and high seas. The Convention also contains principles on sound management of fish stocks in the EEZs. This Convention is highly relevant in the Arctic, given that all the Arctic states are Parties. In the field of environmental protection the main Arctic-specific wildlife protection convention is the 1973 Polar Bear Agreement (Agreement on the Conservation, 1973), which aims to protect the polar bear and its habitat, a goal that has become difficult to achieve with melting sea ice. The Polar Bear Agreement is the only legally binding treaty focusing on the Arctic region, and applies to the range states of the polar bear (USA, Canada, the Russian Federation, Norway and Denmark (Greenland)). In addition to this Arctic-focused instrument, all of the main MEAs apply within the Arctic region including the 1992 Convention on Biological Diversity (CBD, 1992), with its ambitious aims of enhancing biological diversity (within species, between species and of ecosystems), promoting the sustainable use of components of biological diversity and fair and equitable sharing of the benefits arising out of the utilization of genetic resources. All of the Arctic states except the US are Parties, and the CBD applies to both the terrestrial and marine environment, to the extent of national jurisdiction and in some cases beyond. The only MEA to specifically mention the Arctic is the global 2001 Stockholm Convention on Persistent Organic Pollutants (2001), which identifies the Arctic and its indigenous peoples as vulnerable to POPs (Downey & Fenge, 2003). The universal human rights treaties apply in the Arctic (AHDR, 2004). Many of these are relevant for the region’s indigenous peoples since they guarantee basic human rights, but, more importantly, provide additional protection to indigenous peoples. Chief among these is the Covenant on Civil and Political Rights (1966) and its monitoring body the Human Rights Committee. In its practise – via its General Comments, its Concluding Observations to country reports and in its views on individual cases brought before the Committee under its Optional Protocol jurisdiction (applying to all Arctic states except the US) – the Committee has emphasised the protection of the traditional livelihood and culture of indigenous peoples. In addition, the Committee has urged states to report on measures taken to further the Article 1 right of self-determination with respect to indigenous peoples within their territory. This Covenant is particularly important in the Arctic since it is in force for all eight Arctic states. There is also the ILO Convention on the Rights of Indigenous and Tribal Peoples in Independent Countries (1989) which has been ratified by two of the Arctic states (Norway and Denmark). Yet, it has had a significant effect on the discourse and the rights of indigenous peoples in Norway (Graver & Ulfstein, 2004) and may also be used as a standard setting exercise against which to measure the domestic policies of other states even if they are not formally Parties to the instrument. It remains to be seen how the recently adopted UN Declaration on the Rights of Indigenous Peoples (2007) (the US and Canada voted against, and Russia abstained), will affect domestic policy in the Arctic states. In addition, a draft Nordic Saami Convention has been produced under the auspices of the Nordic Council. The decision as to when and if the negotiations will
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commence on the basis of this draft will be made in November 2008 (Koivurova, in press). Inter-governmental organizations may be particularly relevant for the Arctic especially if all eight states are members. Mention can be made of the International Atomic Energy Agency (IAEA), which plays an important role in promoting conventions and other guidance to increase nuclear safety, an agenda item chosen as a priority as early as the 1991 AEPS. In addition, the United Nations Economic Commission for Europe (UN ECE) which bridges both Europe and North America and eastern and western Europe has accomplished significant work in reducing longrange transboundary air pollution affecting the Arctic but also in developing protocols, especially the Protocol on persistent organic pollutants that served as a regional precursor to the global Stockholm Convention (Downey & Fenge, 2003). In addition the UN ECE has also taken a leadership role in laying down rules for transboundary environmental impact assessment procedure through the so-called Espoo Convention (Convention on Environmental, 1991) although the US, Russia and Iceland are not Parties to this treaty (Koivurova, 2002).
1.3 Approaches to Mitigate or Adapt to Climate Change – Defining the Concepts The paragraphs below outline the main concepts for dealing with climate change that have been prevalent in the United Nations Framework Convention on Climate Change (UNFCCC) and associated processes, and which have emerged from IPCC literature: mitigation and adaptation as well as mitigative and adaptive capacity (and the relation between adaptive capacity and vulnerability). Adaptation and mitigation can generally be seen as specific actions undertaken in order to decrease greenhouse gas emissions or adapt to the effects of climate change, respectively, while mitigative and adaptive capacity determines the possibility for undertaking such actions. Mitigative and adaptive capacity depend on a wide array of resources, such as access to and cost of technology, political resources and willingness, and economic means, and are unevenly distributed among actors on all levels, including states (Kane & Shogren, 2000). The wide range of actors defined above as part of governance may play varying roles in adaptation and mitigation, and take part in or design mitigation or adaptation actions for different purposes not only in order to adapt to climate change but also in response to changes in economic conditions (O’Brien & Leichenko, 2000).
1.3.1 Mitigation Mitigation is defined as the reduction or limitation of greenhouse gas (GHG) emissions. Such a reduction of GHG emissions would decrease future levels of climate change. The IPCC (2007) notes that mitigation can be accomplished through a wide
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variety of mechanisms that are available to actors on different levels. For states, the variety of national policies and measures available include regulations, standard setting, the levying of taxes and charges or subsidies or financial incentives for GHG reduction, and development of cap and trade systems. Information efforts and research, as well as integration with or “mainstreaming” of climate change measures may also support mitigation. The efficiency and adaptation of these different measures depends on a number of factors. Regulatory measures may be preferable in cases where price signals have less influence, but may be difficult to implement. Economic instruments such as carbon taxes or cap and trade systems may help internalize the costs of carbon emissions and may achieve emissions reductions at lower cost than other regulatory measures (Wiener, 1999). However, such schemes are not yet well developed (Gupta et al., 2007). Internationally, the UNFCCC and the Kyoto Protocol to the Convention have been significant steps in starting to establish a system for climate change mitigation globally – among other things by stimulating national policies and the development of a carbon market. The IPCC notes that such policies need to be supported both on an international level by additional agreements to further decrease emissions in the phase following Kyoto, as well as by integration with other policies and in a broad array of institutions and situations (Gupta et al., 2007).
1.3.2 Adaptation and Underlying Capacities The IPCC defines adaptation as taking place through “adjustments to reduce vulnerability or enhance resilience (the possibility of withstanding or absorbing shocks) in response to observed or expected changes in climate and associated extreme weather events” (Adger et al., 2007, p. 720). Adaptation actions include all actions taken by different actors or groups on different scale levels – from the local to the international – in order to improve the ability of societies to withstand and not be harmed by climate change, i.e., all those actions that limit the vulnerability of a society or its “risk to be wounded” by climate change (cf. Kates et al., 1985; Adger, 2006). How vulnerable a society is to the changes that result from climate change depends on its existing situation: its environmental situation (e.g., exposure and sensitivity to storms, drought or effects on food systems), resources and distribution of resources to respond to such threats, prior stresses, and institutions through which responses to stresses need to be channelled (Adger et al, 2007). Resources for adaptation, as with mitigation, thus often depend on existing on-going processes such as globalisation and economic change in general; but it is rare for adaptation actions only to address climate change as a single stressor (Smit & Wandel, 2006; Keskitalo, 2008). Adaptation, as well as mitigation, is thereby determined by a number of specific characteristics of the mechanisms, actors, and underlying situation in which adaptation or mitigation is being undertaken. As a result, the concepts of “mitigative capacity” and “adaptive capacity” have been used largely analogously to refer to determinants of capacity to undertake adaptation or mitigation (IPCC, 2001; Kane & Shogren, 2000). These include a large array of political, institutional, economic and human capacities. The IPCC emphasises the importance of contextual factors
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in determining mitigative capacity, and sees it as dependent on factors that are also typically associated with the pursuit of sustainable development, such as the distribution of resources and the empowerment of population, the credibility of decision-makers, access to information and knowledge, and the willingness to act on information and spread the risks of climate change (IPCC, 2001). Additionally, determinants of adaptive capacity are strongly context-specific and vary between states and localities, as well as depend on structural characteristics such as employment and socio-economic structure and benefits. While broad factors such as “technology” may be important for adaptation throughout, the way in which technological factors (and which technological factors) are important may vary significantly from case to case (Smit & Wandel, 2006). Similarly, different mechanisms may also transfer vulnerability between different groups – supporting certain groups while disempowering others – and it is therefore crucial to assess which groups are benefitted in their adaptation by specific actions. As a result of the breadth of factors impacting adaptive or mitigative capacity, the IPCC and much work in the climate change vulnerability assessment field (cf. Janssen et al., 2006) includes a focus on potentials, instruments and barriers. The instruments that might be used to accomplish mitigation are drawn from a broad framework similar to that of adaptive capacity. Major policies and measures that might be used for mitigation of GHG emissions include the array of instruments mentioned in the Kyoto Protocol, economic dimensions, political economy, legal, and institutional elements (a mix also treated in this book). States may select the most appropriate measures based on their assessment of a number of factors including cost effectiveness, distributional effects and national and sector level circumstances. We can also expect decisions on adaptation and mitigation to be influenced by interest groups concerned about the effect of particular measures on their competitiveness and that groups holding opposing interests will often support these rather than consensus decisions (IPCC, 2001). This political context may help explain why implementation so far of adaptive and mitigative actions has been relatively slow. Additionally, any policy instrument, whether on an international or domestic level, depends on having adequate monitoring and enforcement systems for its effective implementation (IPCC, 2001). On the level of organisations other than states, such as international organisations or soft law arrangements, awareness building may play a large role for developing climate change adaptation, and different actors may attempt to influence states to support certain areas or groups (Keskitalo, 2008).
1.4 Legal and Political Science Understandings of Climate Governance In conceptualising adaptation and mitigation actions for a project such as this – focusing mainly on contributions from international law and political science/international relations – the varying perspectives in these disciplines have to
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be noted. International law and international relations (IR) have historically centred on relations between states. Today, the attention of legal scholars has broadened to include the global, semi-global, regional, intra-regional, national and sub-national levels and the interaction between them (Slaughter et al., 1998). IR and political science scholars may today include these levels in their analysis as well as focus on institutions such as social norms that may not be accessible through legal study. Nevertheless, large differences in assumptions of agency and agents both within and between these disciplines remain. As a result, we have chosen to define concepts such as institution, regime or governance system rather broadly in order to enable more specific definition by each individual contributor in international law and international relations. In a general sense, the concept of institution is often seen as the formal and informal rules that shape behaviour (Haas, 2000). Institutions may in practice take the form of organisations, which are entities possessing secretariats, staff and the like, or, for instance, international treaties, which also prescribe behaviour. Institutions are also evident more broadly in all human actions, such as the informal rules for how to act, or in the assumptions that guide the market economy. Institutions, then, in governance or elsewhere, often embody societies’ previous solutions to problems. “[A]longside holding society together, a primary role of institutions is, in fact, to enable society to adapt” (Kelly & Adger, 2000, p. 330). In the legal field, however, institutions are frequently defined more narrowly, as complexes of rules and principles, which govern certain functional areas. Increasingly, new forms of inter-governmental cooperation are created – such as treaty bodies and soft-law arrangements – which are difficult to evaluate from the traditional legal perspective (Ulfstein & Churchill, 2000). More formal embodiments of institutions entrenched through authoritative decision-making and visible through organisations and legislation in practice – i.e., in governments, international organisations, NGOs, and private decision-making in industry – are often defined as multi-level governance. Multi-level governance embraces the overlapping networks of decision-making from the local to the international level (Keohane & Nye, 2000). In legal thinking, however, the concept of multi-level governance has in practice referred mainly to different layers of legal systems (international law, transnational law, European law, national law, subnational law) and the interaction of those rule systems with each other, and does not generally refer to norms beyond legal embodiment. Lawyers frequently engage in two types of inquiry, with one set of inquiries directed at ascertaining in a descriptive and analytical way what constitutes the valid norms (the lex lata) while a second level of inquiry goes beyond this and asks what ought to be the law (the lex ferenda). In their analysis of the content of valid law (the lex lata), international legal scholars tend to relax their concept of law (e.g., by accepting so-called soft-law as part of international law and by downgrading the importance of customary international law emphasising instead treaties as the important source of international environmental law). In doing so such scholars may also try to examine whether these rules have any relevance beyond their formal status. Law and some branches of international relations have a number of meeting points, for instance, acceptance of the
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idea that treaty and other normative instruments may have profound significance as transformers of the strategies of states. This research project has assumed that it will be possible for international relations and international law to agree on two premises: 1. Norms and institutions matter, whatever the social scale of organisation, including global level organisations and rules. 2. Norms and institutions do not operate in a vacuum, but are part of an interlocking (or multi-level) system of norms and institutions. In looking beyond the law as it is to the law as it ought to be, legal scholars look towards IR theory and other theoretical frameworks in order to develop support for particular interpretations of existing norms as well as more explicit arguments to change the content of those norms. The contributions of IR in this volume largely take a constructivist approach: Tennberg (this volume) and Sreejith (this volume), for instance, focus on the discourses or governmentality that may be seen as inherent in certain perspectives of framing reality and determining what is a relevant issue for climate change policy in the Arctic (Tennberg) or for the Barents Euro-Arctic Council (Sreejith). Nilsson (this volume), similarly, studies the framing of the climate change problem in the ACIA and to what extent it has been made a local or global problem, and which actors are thus included in decision-making on climate change. Contributions in this volume thus illustrate a large breadth in research orientation: from international treaties and the flexibility inherent in them (for instance, Franckx, this volume) to the framings or discourses that determine the scope or subject matter of legislation or an international treaty. As a result, there is a wide range in the contributions on how institutional adaptation may be conceived of or how capacities to adapt or mitigate may differ, as well as in how the mitigation and adaptation actions that are defined are treated. The identification of adaptive capacity in the organisations and regimes concerned with the Arctic will need to take into account multiple factors, including the fit of organisations to climate change adaptation and mitigation aims, their capacities to forward and implement these (including their status as soft-law or hard-law institutions, their resources and influence, access to secretariat functions and support, and access to national decision-makers). Answering questions of to what extent the actors and institutions that we study in this volume are able to contribute to adaptation and mitigation measures may require assessing the dynamic capacities of the focal units. To what extent will constitutive documents of the institution allow changes to be made that support climate change mitigation and adaptation, and what political coalitions exist to support such changes? It may also be important to ask whose adaptation or mitigation measures are supported by the particular organisation: do they support metropolitan areas and national decision-making systems, only indigenous groups in separate countries, or place a focus on sub-regional decision-making? Do these regimes lend normative weight to the need to mitigate greenhouse emissions? Do they help build the adaptive capacity of affected areas and communities, especially in the Arctic? And are
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these regimes themselves capable of organizing in response to the challenges posed by climate change? We have asked contributors to address these types of questions in order to make issues of vulnerability and adaptive or mitigative capacity influence all the individual contributions. Hence we have encouraged the contributors to identify the vulnerabilities of the arrangements they are studying in light of the on-going consequences of climate change in the region. Additionally, we have asked contributors to evaluate whether the system they are studying possesses some form of adaptive capacity to meet the challenges created by climate change and to further define the broad concept for their own purposes.
1.5 Organisation of the Book The book is divided into three parts. The first part considers the topic of climate change in the Arctic and is comprised of chapters by Doelle, Koivurova and Hasanat, Nilsson, and Keskitalo. Doelle’s chapter sets the scene by describing the evolution of the global climate change regime under the Framework Convention, the Kyoto Protocol and the Marrakesh Accords. He emphasises the overall objective of the Convention which is to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with climate system within a timeframe sufficient to allow ecosystems to adapt naturally. Doelle suggests that we have already missed that objective in the case of the Arctic which means as a practical matter that we need to focus on adaptation strategies. The contribution of Koivurova and Hasanat provides us with an Arctic region focus, by examining the work of the Arctic Council on the topic of climate change. The authors review the evolution of the Arctic Council from the Arctic Environmental Protection Strategy (AEPS) and the role of the various working groups over the years. The authors note that while from the outset the early documents referred to climate and climate change, the topic only began to assume significance in the mid-1990s when the Ministerial Meetings asked AMAP to extend its remit to cover reviews of climate change research. This laid the groundwork for the Arctic Council to commission the Arctic Climate Impact Assessment (ACIA). A crucial document both in terms of its conceptualization of the Arctic and its documentation of the regional effects of climate change, ACIA allowed the Arctic to take centre stage in the global climate change debate. The authors note that climate change has continued to be a main agenda item of the Arctic Council since the ACIA report, although states have been reluctant to commit to a regular review and update of the report; however, that has created an opportunity for non-state actors such as WWF to fill the gap. Norway has indicated that climate change will be central to its chair-period focusing on strengthening climate change research related to the Arctic, strengthening adaptive capacities of Arctic residents and communities and Arctic mitigation opportunities. The authors stress that the Arctic Council has been able to make useful and significant contributions to climate change debates notwithstanding its
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soft law status and it has been able to do this principally through the generation of knowledge about the impacts of climate change in the Arctic. Nilsson builds upon this account of the history of climate change within the Arctic Council to provide a more nuanced assessment of ACIA, framing her account in terms of the production of knowledge and seeking to explain how ACIA came to be produced. Nilsson identifies three main initiation points for ACIA: the International Arctic Science Committee (IASC), IPCC and the AMAP group within the AEPS and later the Arctic Council, facilitated by key people and overlapping memberships. She also notes that ACIA’s embrace of indigenous knowledge was likely made possible only by virtue of the status of indigenous people as Permanent Participants within the Arctic Council. However, as Nilsson points out, while the resulting study did deal with the socio-economic implications of climate change for indigenous communities it had little to say about the impacts of climate change on nonindigenous communities, and also highlighted particular scale levels before others. Nilsson is particularly interested in the politics of scale: how matters are framed at the local, regional or global levels. Global framing has served the interests of a superpower (the US) and a scientific community with matching interests, and, in that sense, ACIA, with its emphasis at least in part (but only in part) on the local and the regional contributes to an increasing challenge of that global view. However, Nilsson suggests that the science volume of the ACIA report was less successful in presenting a regional (i.e., circumpolar) perspective than its efforts at presenting either a local or a global perspective. The reasons for this are likely complex but relate to the historical construction of knowledge and disciplines informed by a colonial view of the Arctic in which the Arctic is primarily of interest because of its global role. Keskitalo’s chapter closes the first part of the book. This chapter offers an account of the diversity of new governance organizations active in the Arctic and concerned with climate change issues. Reaching beyond the Arctic Council she also includes the Northern Forum, the Barents Euro-Arctic Council (BEAC) as well as NGOs. Using the concepts of fit (between the mandate of the organization and the issue of climate change), interplay (of organizations within the Arctic governance system), redundancy and slack, this chapter makes an inquiry into the self-perception of the capacity in these organizations to support adaptation to climate change. One of the main conclusions is that some of those active in the organizations themselves perceive a significant gap between the agenda of these organizations and the resources available to undertake their self-defined objectives and build capacity. The second part of the volume is titled “Looking Outwards”. In this part, the various authors examine the relevance of global rules and institutions for the Arctic and the responsiveness of those rules and institutions to issues of climate change. Franckx’s contribution focuses on the Arctic and the law of the sea in a time of climate change looking specifically at navigation issues. Climate change will likely have a de-stabilizing effect but not on the law of the sea regime as such. Rather climate change will create pressure on states to resolve existing stand offs and to apply the general rules in the Arctic for such matters as boundary delimitations, the status of international straits, and the validity of straight baselines. In terms of the
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law of the sea regime itself, Franckx identifies what he refers to as “low, medium and high level vulnerabilities”. The fact that, by and large, there is no special Arctic law of the sea regime Franckx characterizes as a low level vulnerability; the interpretive difficulties surrounding the application of the Convention (including Article 234) represent a medium level vulnerability. High level vulnerability can be seen in the possibility of unilateral claims of creeping jurisdiction (e.g., extensive Canadian internal waters claims in the Arctic) because they “contradict the basic legal framework”. Nevertheless, the absence of a real conference of the Parties of the LOS Convention7 should not itself be seen as evidence of the inability of the regime to adapt since change can be accommodated in various ways including through open textured language. Here Franckx offers the example of the “due regard for navigation” language of Article 234. This language, while de-stabilizing in some contexts, is adaptive in the present context precisely because the meaning of that term in any particular context might be referred to a third party for dispute resolution. Such terms by their nature permit an evolutionary interpretation but at some point Article 234 might simply cease to be operative, while compulsory dispute settlement may not be available in relation to all possible Arctic disputes (e.g., the status of historic waters claims). Other flexibility mechanisms exist including, in particular, the possibility of a regional agreement for the Arctic. Franckx warns us of the dangers of generalizations noting that while we are certainly looking at loss of ice cover and therefore increased navigability, ice conditions in some areas, especially the Northwest Passage may be unpredictable and challenging. Molenaar focuses on marine capture fisheries considering both target and nontarget species but recognizing the broad spatial scope of those fisheries from the Atlantic to the Pacific. Like Franckx, Molenaar emphasises the general importance and application of the Law of the Sea Convention and its implementing agreements in the Arctic, but, given the fisheries focus, he also emphasises the existence of high seas “holes” in the Arctic, areas of the high seas beyond the limits of national jurisdiction of the coastal states. As with other activities (e.g., navigation and resource development) the loss of sea ice will see an extension of fisheries activities into the Arctic Ocean both areas within and beyond national jurisdiction. The Arctic Council has not focused on the conservation and management of capture fisheries and it is not a Regional Fisheries Management Organization (RFMO); furthermore, most Arctic Council members do not want the Council to be involved in fisheries management issues. As a result there is a considerable institutional gap insofar as no RFMO has competence in many areas of the Arctic other than for anadromous species and tuna. In addition, there are also science and data gaps and poor understanding of the
7 There is the States Parties to the Law of the Sea Convention (SPLOS), but this deals with technical and administrative issues only. There is also an annual review of ocean issues and the law of the sea carried out by the UN General Assembly on the basis of a Report prepared by the Secretary-General and the final recommendations of the Open-Ended Informal Consultative Process of Oceans and Law of the Sea (ICP), which occasionally pays attention to the compliance of the national ocean policies in light of the UNCLOS and developing the law of the sea, but it does not perform the multitude of tasks carried out by modern-day convention bodies.
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Arctic marine ecosystems which will hamper ecosystem based approaches to management. Molenaar concludes by listing the options for filling these gaps including: individual action by Arctic Ocean coastal states and other states in their capacities as flag, coastal, port and market states; bilateral or subregional arrangements between the relevant Arctic Ocean coastal states on the conservation and management of shared fish stocks; a declaration (e.g., by the United Nations General Assembly) extending the principles derived from other agreements and resolutions to the Arctic and in particular the principle that there should be no new fisheries without an adequate prior assessment; and a new state-of-the-art RFMO. Viikari’s contribution deals with climate change and the Convention Concerning the Protection of the World Cultural and Natural Heritage Convention (WHC). Viikari points out that the Convention regime has long been concerned with the implications of climate change for the cultural, natural and mixed properties that are included in the World Heritage List. In addition, non-state actors have been drawing attention to the threat posed by climate change by petitioning for particular properties to be placed on the World Heritage List in Danger on account of the effects of climate change. On the mitigation side she notes that states have a duty to do all that they can to identify, protect, conserve, present and transmit to future generations the world cultural and natural heritage that occurs on their territory. While she is sceptical of the claim that this requires that states adopt other international instruments that further this objective, a good faith interpretation of the convention does require states to take some mitigative steps. In this sense the WHC does add normative weight to the duty to mitigate found in the FCCC. The direct relevance of the WHC to the Arctic is more limited given that there are very few world heritage sites in the Arctic but a number of Arctic states have Arctic properties on their tentative list. Hein¨am¨aki places the focus of analysis on issues of climate change and the Arctic through a human rights framework and in particular the effects of climate change on the human rights of indigenous peoples. To that end she examines the petition (ruled inadmissible) filed by the Inuit Circumpolar Council (ICC) with the Inter American Commission on Human Rights alleging that the United States was in breach of many of the substantive rights protections of the Inter American Declaration of the Rights of Man. Hein¨am¨aki also examines the “right to participate”, various international human rights claims including the right to self determination, the right of minorities to culture, the right not to be discriminated against and the right to property embracing the right to prevent the state from making dispositions in traditional territory before engaging in a process of demarcating and titling indigenous lands. Each of these rights has, according to Hein¨am¨aki, a participatory or consultative component. But Hein¨am¨aki also explores the idea of the right to participate within international institutions focusing on the idea of Permanent Participant status within the Arctic Council as well as indigenous participation within the UN system through institutions such as the Permanent Forum on Indigenous Issues, noting that the Arctic Council structure may provide a way forward for indigenous rights. Marauhn concludes this part of the volume by analyzing the potential of the Convention on Biological Diversity to address the effects of climate change in the
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Arctic. He notes that the objectives of the CBD and of the UNFCCC and Kyoto Protocol are closely inter-related in the sense that climate change is a major cause of biodiversity loss and one of the obligations under the CBD is to identify and address such threats, while the ultimate objective of the FCCC is framed in part in terms of the capacity of ecosystems to adjust naturally to climate change. However, the CBD’s obligations are very broad and general and, as others in this volume have noted, the FCCC and Kyoto impose obligations of result and do not require states to meet their obligations in a particular way. Marauhn suggests, however, that the CBD has been effective in working on interlinkages between climate change and biological diversity, using as examples its work on coral bleaching and forests and addressing the interface at a technical level through various ad hoc groups and subsidiary bodies and through co-coordinated work between the secretariats of the three Rio conventions. Thus, Marauhn argues that the CBD does have some “adaptive capacity (defined in terms of its aptitude for learning). Not only has the CBD taken account of other agreements from the beginning but it has also shown by its work the ability to take account of climate change and perhaps more importantly influence the work of others, for example through the development of that part of the Kyoto\Marrakesh rulebook dealing with Land Use, Land Use Change and Forestry. In order to develop regime interlinkages further, Marauhn argues that we need an improved understanding of interlinkages between climate change and biological diversity and that the CBD needs to develop its linkages with other relevant agreements including the Bonn Convention on Migratory Species. More generally, Marauhn examines how to foster integration at a more conceptual level. While integration has traditionally occurred at the national implementation level he makes the case for further developing integration at an administrative level (practice and possibly law) by building on the emerging practice of various administrative arrangements between secretariats such as the joint liaison group between the secretariats to the Rio instruments. The third part of the volume titled, “Looking Inwards”, examines a series of Arctic regional examples. The contributions here are more varied in their coverage of the interaction between climate change and the Arctic and in their choice of relevant rules and institutions. The contributions cover both domestic laws and policies as well as regional organizations and to some degree the role of non-state actors. Tennberg introduces this part with a discourse analysis of the formal climate change communications of the Arctic states with the Secretariat in fulfilment of the requirements of the Framework Convention. Tennberg focuses on adaptation to climate change as an issue of “governmentality” and considers how each of the Arctic states construct their concern for climate change, how the Arctic and Arctic peoples figure in these national communications and how each state’s communications characterizes the agency for adaptation (i.e., who will assume responsibility and how will action be taken). Her analysis shows that most states in the Arctic did not discover their “Arcticness” until after the ACIA report. This, Tennberg suggests, is hardly surprising, since from a neoliberal perspective, climate change in the Arctic is perhaps mainly understood as providing new opportunities for the exploitation of the resources of the region and the role of the state is to encourage that development. Tennberg notes that while some Arctic states (especially Canada) do focus on
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climate change vulnerability within the region, others (especially Denmark but also Finland) seem to conclude that, as developed states, they are less vulnerable to climate change. Such states see their biggest concern as being the cumulative effects of climate change elsewhere giving rise to environmental security concerns. Given the diversity of national approaches and even conceptualization of the issue, Tennberg suggests that there is little chance that Arctic states will, in the near future, agree on a common strategy or approach to adaptation or mitigation in the Arctic. Petterson’s contribution focuses on mitigation possibilities within the energy sector and within Arctic states. She emphasises that the Convention and the Kyoto Protocol offer the Parties plenty of flexibility in the manner in which they meet their targets. In particular, the two instruments do not specifically require Parties to make more use of renewable energy technologies if they can meet their targets in different ways. But, as the price of carbon rises (either through carbon taxes or the lowering or tightening of the cap in cap and trade systems), the relative cost of renewable energies will fall, thus increasing their market penetration. Some Arctic states have considerable potential to develop renewable energy resources (e.g., Canada and Russia) and especially both large and small scale hydro, although some jurisdictions (such as Sweden) have effectively closed the door on further large-scale hydro developments. Other options such as wave and tidal energy have hardly been tapped. Arctic countries face hard choices in developing Kyoto-based energy policies. At least some Arctic states, are well endowed with carbon-based fuels, coal, oil and natural gas and will be tempted to continue to access these fuels for both domestic use and export. This may be particularly true for Russia which is richly endowed with natural gas with its lower carbon content. Coal may also remain attractive depending upon the development and costs associated with carbon capture and storage technologies. Loukacheva’s chapter places the focus on the policies of sub-national units, Greenland and Nunavut and the policies of Inuit organizations and in particular the role of the Inuit Circumpolar Council (ICC) rather than national policies. While both Greenland and Nunavut are starting to see both the positive and negative effects (as well as the opportunities and challenges) created by climate change, Loukacheva suggests that the development of a climate change policy is not always a high priority when compared to more pressing social and economic issues associated with maintaining viable and healthy communities. However, there are several noregrets measures that are attractive to both jurisdictions including the development of indigenous resources and especially renewable resources such as wind and hydro. Development of these resources will serve to reduce dependence on imported and expensive fuels to power off-grid, small scale energy systems. In the context of adaptation Loukacheva categorizes a number of strategies that may be available to build and enhance adaptive capacity including legislative strategies, institutional strategies, technological strategies and behavioural strategies. But both Greenland and Nunavut are constrained in their development of a distinctive climate change policy by their status as sub-national units within jurisdictions that are dominated by the metropolitan concerns of the majority of the population. It is much easier for ICC to take an international position and assume an international voice than it is
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for Nunavut and Greenland. Loukacheva demonstrates the various avenues that ICC has explored to draw global attention to the effect of climate change on the Arctic and on Arctic communities. These avenues include the petition brought to the Inter American Commission and explored at greater length in Hein¨am¨aki’s chapter but they also include advocacy at the various conferences and meetings of the Parties to the two climate change agreements. Bankes in his contribution examines the regime for the conservation of polar bears. While acknowledging that there are other relevant bilateral components to an overall understanding of the regime, Bankes focuses his attention on the Agreement for the Conservation of Polar Bears (ACPB) and the Convention on International Trade in Endangered Species (CITES). The ACPB is unique among the instruments discussed in this book as the one Arctic regional hard law instrument. Negotiated by the range states of the polar bear (who are also the Arctic coastal states) rather than the Arctic eight of the Arctic Council, the ACPB has been successful in dealing with the problem that it was set up to resolve (overharvesting of polar bears) but it is less well equipped to deal with the new problem of climate change. Part of this is attributable to problems of scale but part is also due to the limited institutional development of the ACPB by the Parties. However, recent initiatives by the United States and Norway acknowledge the need to involve the Parties to the agreement in future development of the regime. Turning to CITES, where the polar bear is listed in Appendix II, Bankes suggests that CITES unlike other MEAs has been surprisingly slow to respond to issues associated with climate change. This, Bankes suggests, may be because the instrument focuses on trade rather than conservation and habitat. The contribution by Sreejith focuses on the Barents region and the creation of the Barents Euro-Arctic Council (BEAC) within the Barents Euro-Arctic Region (BEAR). Born as a response to the end of the Cold War to deal with a range of security issues that emerged as the old bi-polar structure collapsed, BEAC has helped to conceptualize the Barents area as a distinctive region. In this context Sreejith argues that climate change has played a role in region building insofar as BEAC has re-framed the issue of climate change in terms of threats to an expanded notion of security which includes environmental security. Sreejith coins the term “subjective environmentalism” to capture BEAC’s distinctive approach to climate change, one which considers the concept of “structural stability of regions” as a constituent of sustainability. This has led the various working groups of BEAC to engage with climate change issues in very practical ways by spreading awareness of the issues of climate change and developing solution oriented approaches such as the development of a model forest both as a mitigation measure (bio-sequestration) but also to enhance the attractiveness of the region to foreign investors. VanderZwaag’s contribution offers us a perspective on the future of Arctic governance. He canvasses a series of initiatives that are taking place under the auspices of the Arctic Council’s Arctic Marine Strategic Plan, the proposed revisions to the IMO’s Guidelines for Ships Operating in Arctic Waters and the Norwegian led review of the Arctic Council’s structure. The overall message here is that there is considerable activity occurring in a number of fora to strengthen governance
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arrangements in the Arctic to address perceived weaknesses and gaps especially in light of increased access and navigation in Arctic waters flowing from the loss of ice cover. It is, according to VanderZwaag, an open question as to whether it is necessary and possible to move beyond these incremental and soft measures and negotiate a harder treaty regime. Here VanderZwaag notes that while there is considerable support in the NGO and academic communities for such a move, the five Arctic coastal states are far less enthusiastic – a view expressed most recently in the Ilulissat declaration (2008). VanderZwaag also addresses options for addressing governance issues beyond the maritime zones of the coastal states, given that e.g., the core Arctic Ocean is high seas, noting that there are four main options: a law of the sea approach (the status quo), a regional sui generis approach, an arctic multilateral agreement and finally a global approach that would build on developments elsewhere to provide additional rules for areas beyond coastal state jurisdiction.
References Adger,W. N. (2006). Vulnerability. Global Environmental Change, 16, 268–281. Adger, W. N., Agrawala, S., Mirza, M. M. Q., Conde, C., O’Brien, K., Pulhin, et al. (2007). Assessment of adaptation practices, options, constraints and capacity. In M. L. Parry, O. F. Canziani, J. P. Palutikof, P. J. van der Linden & C. E. Hanson (Eds.), Climate change 2007: Impacts, adaptation and vulnerability. Contribution of working group II to the fourth assessment report of the intergovernmental panel on climate change (pp. 717–743). Cambridge, UK: Cambridge University Press. Agreement between the Government of the Kingdom of Norway on the one hand, and the Government of the Kingdom of Denmark together with the Home Rule Government of Greenland on the other hand, concerning the delimitation of the continental shelf and the fishery zones in the area between Greenland and Svalbard, Copenhagen, 20 February 2006 In force 2 June 2006). U.N.T.S. 42887. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001, 34 I.L.M. 1542 (1995). Retrieved August 20, 2008, from www.un.org/Depts/los. Agreement on the Conservation of Polar Bears. Oslo, 15 November 1973. 13 I.L.M., 13 (1974). The Agreement on the European Economic Area, Brussels, 17 March 1993. In force 1 January 1994. Official Journal L 001. 494. Retrieved August 4, 2008, from www.efta.int. Arctic Climate Impact Assessment (ACIA). (2004). Impacts of a warming Arctic: Arctic climate impact assessment. Cambridge, UK: Cambridge University Press. Arctic Climate Impact Assessment (ACIA). (2005). Arctic climate impact assessment: Scientific report. Cambridge, UK: Cambridge University Press. Arctic Contaminants Action Program. (n.d.). Retrieved August 20, 2008, from http://arcticportal.org/en/acap. Arctic Human Development Report (AHDR). (2004). Akureyri: Stefansson Arctic Institute. Arctic Monitoring and Assessment Programme (AMAP). (1997). Arctic pollution issues: A state of the Arctic environment report. The map can be downloaded e.g., from http://arcticstudies.pbwiki.com/f/map.jpg. Retrieved August 10, 2008. Boyle, A. (2000). Globalism and regionalism in the protection of the marine environment. In D. Vidas (Ed.), Protecting the polar marine environment (pp. 19–33). Cambridge, UK: Cambridge University Press.
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Carnaghan, M., & Goody, A. (2006, January). Canadian Arctic sovereignty. Canadian Library of Parliament, Political and Social Affairs Division. PRB05-61E. Retrieved August 20, 2008 from http://www.parl.gc.ca/information/library/PRBpubs/prb0561-e.htm. Chan, L., Eynon, G., & McDoll, D. (2005). The Economics, of High Artic Gas Development: Expanded Sensitivity Analysis. Calgary: Canadian Energy Research Institute. Retrieved August 20, 2008, from http://www.ceri.ca/documents/HighArcticGasReport.PDF. Commission on the Limits of Continental Shelf. (n.d.). Retrieved August 20, 2008, from http://www.un.org/Depts/los/clcs new/clcs home.htm. Convention on Biological Diversity, Nairobi, 22 May 1992. In force 29 December 1993. 31 I.L.M., 822 (1992). Retrieved August 4, 2008, from www.biodiv.org. Convention on Environmental Impact Assessment in a Transboundary Context. 25 February 1991. 30 I.L.M., 800. Convention on Persistent Organic Pollutants. Stockholm, 22 May 2001. Retrieved July 10, 2008, from http://chm.pops.int/Portals/0/Repository/conf/UNEP-POPS-CONF-4-AppendixII. 5206ab9e-ca67-42a7-afee-9d90720553c8.pdf. Continental slope off Alaska 100 nautical miles further off coast than assumed. (2008, February 12). Science Daily. Retrieved August 15, 2008, from http://www.sciencedaily.com/ releases/2008/02/080211134449.htm. Downey D., & Fenge T. (eds.) (2003). Northern lights against POPs: Combating toxic threats at the top of the world. Montreal, Quebec: McGill Queen’s University Press. Eberlein, B, & Newman, A. L. (2008, January). Escaping the international governance dilemma? Incorporated transgovernmental networks in the European Union. Governance: An International Journal of Policy, Administration, and Institutions, 21(1), 25–52. Franckx, E. (2006). The protection of biodiversity and fisheries management: Issue raised by the relationship between CITES and LOSC. In D. Freestone, R. Barnes, & D. Ong (Eds.), The Law of the Sea: Progress and prospects (pp. 210–232). Oxford: Oxford University Press. Graver, H. P., & Ulfstein, G. (2004). The Sami people’s right to land in Norway. International Journal on Minority and Group Rights, 11, 337–377. Gupta, S., Tirpak, D. A., Burger, N., Gupta, J., H¨ohne, N., Boncheva, A. I., et al. (2007). Policies, instruments and co-operative arrangements. In B. Metz, O. R. Davidson, P. R. Bosch, R. Dave, & L. A. Meyer (Eds.), Climate change 2007: Mitigation. Contribution of working group III to the fourth assessment report of the intergovernmental panel on climate change. Cambridge, UK and New York: Cambridge University Press. Haas, P. M. (2000). International institutions and social learning in the management of global environmental risks. Policy Studies Journal, 28(3), 558–575. Ilulissat declaration. (2008). Arctic Ocean Conference Ilulissat, Greenland, 27–29 May 2008. Retrieved August 10, 2008, from http://arctic-council.org/filearchive/Ilulissatdeclaration. pdf. Intergovernmental Panel on Climate Change (IPCC). (2001). Climate change 2001: Impacts, adaptation and vulnerability. Contribution of working group II to the third assessment report of the intergovernmental panel on climate change. Cambridge, UK: Cambridge University Press. Retrieved August 20, 2008, from http://www.ipcc.ch/ipccreports/tar/wg2/index.htm. Intergovernmental Panel on Climate Change (IPCC). M. L Parry, O. F. Canziani, J. P. Palutikof, P. J. van der Linden, & C. E. Hanson (Eds.) (2007). Climate change 2007: Impacts, adaptation and vulnerability. Contribution of working group II to the fourth assessment report of the intergovernmental panel on climate change. Cambridge, UK: Cambridge University Press. Retrieved August 20, 2008, from http://www.ipcc.ch/ipccreports/ar4-wg2.htm. International Covenant on Civil and Political Rights, 16 December 1966. In force 23 March 1976. 999 U.N.T.S., 171. International Labour Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 28 I.L.M., 1382 (1989). Janssen, M. A., Schoon, M. L., Ke, W., & B¨orner, K. (2006). Scholarly networks on resilience, vulnerability and adaptation within the human dimensions of global environmental change. Global Environmental Change, 16, 240–252. Kane, S., & Shogren, J. (2000). Linking adaptation and mitigation in climate change policy. Climatic Change, 45(1), 75–102.
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Kates, R. W., Ausubel, J. H., & Berberian, M. (Eds.) (1985). Climate impact assessment: studies of the impact of climate and society. Chichester, UK: John Wiley and Sons. Kelly, P. M., & Adger, W. N. (2000). Theory and practice in assessing vulnerability to climate change and facilitating adaptation. Climatic Change, 47, 325–352. Keohane, R. O., & Nye, J. S., Jr. (2000). Governance in a globalizing world. In J. S. Nye & J. D. Donahue (Eds.), Governance in a globalizing world. Washington, DC: Brookings Institution Press. Keskitalo, E. C. H. (2004). Negotiating the Arctic. The construction of an international region. New York and London: Routledge. Keskitalo, E. C. H. (2008). Climate change and globalization in the Arctic. An integrated approach to vulnerability assessment. London: Earthscan. Koivurova, T. (2002). Environmental impact assessment in the Arctic: A study of international legal norms. Burlington, VT: Ashgate. Koivurova T. (2008). A background paper prepared for the joint seminar of UArctic Rectors. Forum and the Standing Committee of Parliamentarians of the Arctic Region on February 28, 2008, at the Arctic Centre in Rovaniemi, Finland. Retrieved August 20, 2008, from http://64.233.183.104/search?q=cache:4HsI0JBjc0UJ: www.uarctic.org/Timo Koivurova FINAL web g0gNj.pdf.file+discussion+paper+koivurova&hl=fi&ct=clnk&cd=1&gl=fi. Koivurova, T. (in press). The draft nordic Saami convention: Nations working together. International Community Law Review, 10, 279–293. Koivurova, T., & VanderZwaag, D. (2007). The Arctic council at 10 years: Retrospect and prospects. UBC Law Review, 40(1), 121–194. O’Brien, K., & Leichenko, R. (2000). Double exposure: Assessing the impacts of climate change within the context of economic globalization. Global Environmental Change, 10(3), 221–232. Slaughter, A.-M., Tulumello, A. S., & Wood, S. (1998). International law and international relations theory: A new generation of interdisciplinary scholarship. American Journal of International Law, 92(3), 367–397. Smit, B., & Wandel J. (2006). Adaptation, adaptive capacity and vulnerability. Global Environmental Change, 16, 282–292. Stevenson, C. (2007). Hans off!: The struggle for Hans Island and the ramifications for international border dispute resolution. Boston College International and Comparative Law Review, 30, 263–275. Retrieved August 20, 2008, from http://www.bc.edu/schools/law/lawreviews/ meta-elements/journals/bciclr/30 1/iclr 30 1 web.pdf. Treaty on the Status of Spitsbergen (Svalbard Treaty). Paris, 9 February 1920. In force 14 August 1925. 2 League of Nations Treaty Series 8. Reproduced in Vol. 18 of the American Journal of International Law, Suppl., 1924, 199–208. Ulfstein, G. (1995). The Svalbard treaty: From terra nullius to Norwegian Sovereignty. Oslo: Scandinavian University Press. Ulfstein, G., & Churchill, R. (2000). Autonomous institutional arrangements in multilateral environmental agreements: A little-noticed phenomenon in international law in 2000. American Journal of International Law, 94(4) 623–659. United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994, 1833 U.N.T.S. 396. Retrieved August 20, 2008, from www.un.org/Depts/ los. United Nations Declaration on the Rights of Indigenous Peoples. United Nations General Assembly Resolution 61/295 on 13 September 2007. Retrieved November 22, 2007, from http://www. iwgia.org/graphics/Synkron-Library/Documents/InternationalProcesses/DraftDeclaration/0709-13ResolutiontextDeclaration.pdf. Wiener, J. (1999). Global environmental regulation: Instrument choice in a legal context. Yale Law Journal, 108, 677–800. Young, O. (2000). The structure of Arctic cooperation: Solving problems/seizing opportunities. A paper prepared at the request of Finland in preparation for the Fourth Conference of Parliamentarians of the Arctic Region, Rovaniemi, 27–29 August 2000.
Part II
Looking Outwards
Chapter 6
Should the Law Governing Maritime Areas in the Arctic Adapt to Changing Climatic Circumstances? Erik Franckx
Abstract The legal regime of the Arctic maritime areas has for a long time remained on the backburner of international norm creating activities. This can primarily be explained by the inhospitable climate which created natural barriers for human activities and imposed limits on the usefulness of the available technology. At present, however, climate change seems to be responsible for a marked heating up, not only of the mere physical environment of the Arctic, but also of the political tensions concerning the exact legal regime to be applied in the region. This chapter provides a close examination of the present-day legal status of the Arctic. Since almost all territorial claims have been settled in the area, the present contribution will only focus on the Arctic water areas with a special emphasis on navigation. Starting from what seems to have finally become a generally accepted legal cornerstone for appreciating the legal status of these waters, namely the 1982 United Nations Convention on the Law of the Sea, the chapter will first examine how climate change impacts on this legal regime. Subsequently, the vulnerability as well as the adaptive capacity of the 1982 Convention will be examined. Before drawing some conclusions, ways and means will be looked at for this existing legal system to better meet the new challenges that climate change poses for Arctic waters.
6.1 Introduction The legal regime of the Arctic maritime areas has long remained on the backburner of international norm creating. The Arctic’s inhospitable climate created natural barriers for the activities of man and limited the usefulness of available technology. At present, however, climate change seems to be responsible for a marked heating
E. Franckx (B) Department of International and European Law, Vrije Universiteit Brussel, Pleinlaan 2, B-1050 Brussels, Belgium e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 6,
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up,1 not only of the physical environment of the Arctic, but of the political tensions concerning the exact legal regime to be applied in the region. This chapter will examine the present-day legal status of the Arctic. Since almost all territorial claims have been settled in the area,2 only Arctic water areas will retain our attention. And within the multitude of possible offshore activities, only navigation will be focussed upon. Starting from what seems to have finally become a generally accepted legal cornerstone for appreciating the legal status of these waters, namely the 1982 United Nations Convention on the Law of the Sea3 (Part 6.2), the intention is next to consider climate change in the Arctic (Part 6.3) and how this may impact the legal regime of navigation there (Part 6.4). Subsequently, the vulnerability as well as the adaptive capacity of the 1982 Convention will be analyzed in this respect (Part 6.5). A final section will suggest how the existing legal system can better meet the new challenges climate change poses for Arctic water expanses (Part 6.6).
6.2 The 1982 Convention In contrast to the Antarctic, where international cooperation has formed the essence of the development of a very specific international legal regime applicable in the area, as evidenced in a good number of international agreements, the Arctic generally lacks such an integrated and comprehensive regime based on regional 1 Or moving the issue ‘to the front
burner again before long’ as predicted by one author (Kinsman, 2001). 2 The only outstanding issue at present as far as land territory is concerned appears to be Hans Island. See for instance (McRae, 2007). The latter, less than a mile in length north-south, is located midway between Greenland and Ellesmere Island in Kennedy Channel at 80◦ 49’ N. In 1973, when Denmark and Canada delimited their maritime boundary in the area (Agreement Relating to the Delimitation, 1973) neither side appeared willing to press the issue of sovereignty over the island. As a result the delimitation in the area surrounding the island was left undetermined (Alexander, 1993) and is still contested today (Stevenson, 2007). Whether Wrangel and a few other Arctic islands located off the northern far eastern coast of Russia have to be mentioned here is less clear, especially when viewed in relation to the Agreement on the Maritime Boundary, 1990 (Franckx, 1993b). A later claim introduced by an individual wanting to register his interests in five of these islands in the Nome recording district was finally dismissed on December 23, 1994, by the Supreme Court of Alaska based on the following argumentation: ‘The question of sovereignty over the Arctic Islands is a subject committed to the executive and legislative branches of the United States government . . . Until and unless the United States government indicates that the Arctic Islands are part of the State of Alaska, the State has no duty to accept for recording documents affecting title to real property on the islands’ (D. Denardo v. State of Alaska, 887 P 2d 947). A 2003 statement published by the U.S. Department of State, Bureau of European and Eurasian Affairs seems to indicate that the government has no such intention, for it states that these islands have never been claimed by the United States (U.S. Department of State, 2003). A recent review of the question by Russian scholars comes to the conclusion that these claims find no basis in international law. Russian sovereignty, they argue, is widely recognized and based on prolonged possession (Egorov, Kolodkin, Mikhina, & Vylegzhanin, 2006). 3 UN Convention on LOS, 1982 (hereinafter 1982 Convention).
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multilateral cooperation (Rothwell, 1996). It is moreover startling to see that the polar bear, which triggered the conclusion of the first multilateral instrument joining all five Arctic rim countries (Agreement on the Conservation, 1973), has at present become the face of the campaign trying to stop climate change in the Arctic, implying that if this quest were to be unsuccessful4 one of the few hard law instruments specifically conceived for the area will disappear together with its object. The preferred method of regional cooperation in the Arctic has indeed recently been coined by the notion of ‘soft sleddings’, a process moreover expected to continue during the next decade (Koivurova & VanderZwaag, 2007). And no matter how significant this ‘mosaic of cooperative arrangements’ might be (Young, 2005), binding hard law instruments remain an Arctic rarity. This does not mean that the Arctic is a free for all, located beyond the confines of the reaches of international law.5 On the contrary, a clear tendency can be discerned during the last decade or so toward a common acceptance by countries in general, and more importantly the Arctic rim countries in particular, that the 1982 Convention contains the generally applicable legal framework in the area. This first of all has to do with states’ attitudes toward the instrument itself. This document, envisioned to become the Constitution for the Oceans (Statement of Tommy Koh, 1982), seems to be well on its way to achieve that status.6 Moreover, when focusing on the Arctic rim countries proper, it appears that after Norway and the Russian Federation had ratified that convention during the second half of the 1990s,7 Canada and Denmark did so only more recently.8 None of them made a direct reference to the Arctic in any of their declarations made upon signature or ratification.9 As of today, therefore, the United States is the only Arctic rim country 4 In the United States the struggle to protect the polar bear focuses at present on its listing as a threatened species under the Endangered Species Act (Cummings and Siegel, 2007; Navarro, 2008; Olsson, 2007). See also the contribution of N. Bankes to the present book. 5 As sometimes implied in recent analyses of this issue (Borgerson, 2008). After having stated that the Arctic is ‘not currently governed by any comprehensive multilateral norms and regulations’, and affirmed that ‘there are currently no overarching . . . legal structures that can provide for the orderly development of the region’, the author subsequently mentions the 1982 Convention which, according to him, ‘cannot be seamlessly applied to the Arctic’. But all the examples given to prove this latter point, namely the division of the continental shelf, regime of navigation, maritime boundary delimitation, and the issue of flags of convenience, are all elements which this convention addresses either directly, or by reference to other competent international organizations. 6 At the time of writing 154 states and the European Union are bound by this legal instrument. Information retrieved March 13, 2008 from http://www.un.org/Depts/los/reference files/ chronological lists of ratifications.htm#TheUnitedNationsConvention on the Law of the Sea. 7 These countries ratified the 1982 Convention on June 24, 1996 and March 12, 1997 respectively. Information retrieved March 13, 2008 from http://www.un.org/Depts/los/reference files/ status2007.pdf. 8 Namely on November 7, 2003 and November 16, 2004 respectively. Ibid. 9 Given its particular importance with respect to the Arctic, it might nevertheless be appropriate to highlight the fact that the Russian Federation specifically inserted between ‘sea boundary delimitations’ and ‘disputes concerning military activities’, both excluded on the basis of Art. 298 (a)(i) of the 1982 Convention in its declaration made at the time of signature, ‘historic bays and titles’ when rephrasing its declaration at the time of ratification. Also this latter
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that is not yet a party to the 1982 Convention, despite the recent Presidential initiative in this respect.10 It is noteworthy to highlight that the Arctic ranks high on the agenda for some in order to try to speed up this process at present (Bates, 2006; King, 2007). Nevertheless, this absence of ratification by one of the major actors in the region does not put into question the submission just made, since this country has always agreed to abide by the vast majority of the provisions of the 1982 Convention,11 and clearly considered this agreement to govern the Arctic as well.12 Secondly, the 1982 Convention seems to have become the quintessential document when scholars address the issue of the legal regime of the Arctic.13 Especially since Canada and the Russian Federation, the two gate holders of respectively the Northwest and Northeast Passage, have become a party to this convention,14 legal scholars in these two countries tend to found their legal analyses on this particular document. All recent articles written by Canadian authors and mentioned in the present contribution rely on the 1982 Convention for at least some part of their argumentation.15
addition, it should be noted, is in full conformity with the provision of Art. 298 (a)(i). Canada also included ‘historic bays and titles’ in its list of exclusion at the time of ratification. Although not exclusively linked to the Arctic, it might be added that both countries also added delimitation issues to the list, as provided by the same article. Information retrieved March 13, 2008 from http://www.un.org/Depts/los/convention agreements/convention declarations.htm. 10 The road followed by the United States to the ratification of the 1982 Convention has been a tortuous one indeed (Caron & Scheiber, 2007; Noyes, 2007). 11 When the United States proclaimed an exclusive economic zone (Proclamation on EEZ, 1983), the President seized the occasion to make a much broader statement on the U.S. oceans policy in general, in which he clearly indicated that, besides Part XI (The Area), the United States was prepared to accept the conventional rules on the basis of reciprocity (Statement by the President, 1983). 12 A map accompanying the 1983 Proclamation, for instance, included the Arctic in the area of application of this novel concept. 13 The former Under-Secretary-General for Legal Affairs and the former Legal Counsel of the United Nations stressed this point at several occasions recently when discussing the legal regime of the Arctic, as for instance when he stated: ‘The title of my presentation is framed in a manner that seems to suggest that there is no binding legal regime for the Arctic. But the fact is that there is already a wide-ranging legal regime that applies there, in particular the [1982 Convention]’ (Corell, 2006). 14 See supra notes 8 and 7, respectively. 15 For some outspoken recent examples, see for instance the following statement: ‘The basic framework for the oceans is set out in the 1982 Convention on the Law of the Sea, to which Canada is a party, although the treaty provisions of that Convention are also intertwined with principles of customary international law, a matter that is particularly important when dealing with the United States, which has yet to become party to the 1982 Convention’ (McRae, 2007); or ‘[A]s Canada is a party to [the 1982 Convention], the treaty provisions are the logical place to begin an examination of the validity of its position over the Northwest Passage in International law’ (MacNiel, 2006). But even if no such explicit recognition is attributed to the 1982 Convention, as for instance in the authoritative recent article of Professor Pharand, it is clear that this author very much relies on its provisions either to confirm their application, or to argue why Canada is sometimes believed to be exonerated from their application (Pharand, 2007).
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With respect to Soviet authors this latter tendency is even more remarkable. A careful analysis of Soviet and Russian doctrine up to the summer of 1992 by the present author came to the conclusion that in the late 1980s some changes could be discerned in the writings of Soviet jurists. With respect to the sector principle, for instance, the broad reading of the 1926 Decree, subsuming water areas to be included in a decree which only explicitly mentioned lands and islands, was later mitigated by Soviet writers who started to deny that the so-called lateral sector lines constituted state boundaries but nevertheless still always mentioned the 1926 Decree when discussing the legal status of Arctic maritime areas (as overviewed in Franckx, 1993b). If one browses through the Russian doctrine of the last decade,16 some further developments can be noted in this respect. The just published authoritative textbook on the law of the sea by Kolodkin,17 Gutsuliak18 and Bobrova,19 even though it still reprints the 1926 Decree,20 refers back to what they call the correct opinions of Molodtsov, who outright states that this decree does not touch upon the question of the legal status of the water areas so included, and Maleev, who adds that the sector lines did not constitute state boundaries (Kolodkin, Gutsuliak, & Bobrova, 2007). Also the book of Kovalev, first published in 2003 and translated into English a year later, takes a similar approach21 and adds that ‘it follows, in our view, that one should proceed from the fact that the maritime expanses of the Northern Arctic Ocean are by their legal status subdivided into those same categories as the water expanses of the entire World Ocean, the legal regime of which is provided for in
16 An
overview of the period just preceding the last decade stated ‘that it is possible to conclude that a revision of the Arctic sector concept is occurring’ (Timtchenko, 1997). 17 Prof. Kolodkin is judge at the International Tribunal for the Law of the Sea as well as the president of the Russian Associations of International Law and International Law of the Sea. 18 Prof. Gutsuliak is affiliated with the Institute of State and Law of the Russian Academy of Sciences. 19 Ms. Bobrova is Chief-specialist at the Ministry of Transport as well as affiliated with the Department of International Sea and River Law of the Moscow State Academy for Water Transport. 20 The present author finds this connection, often encountered in Russian writings, rather awkward (why refer to a decree, which is now accepted not to concern the water expanses, when stating one’s maritime policy in the Arctic) (Franckx, 1992). Others, however, have explained this reproduction in the 1986 Soviet Notices to Mariners by referring to the fact that such inclusion is not only appropriate but even necessary in order to indicate that the territorial sea around these islands were Soviet, in order for this country to be able to control the navigation of foreign warships in its territorial sea according to the policy the country then had (Timtchenko, 1997). But since all territorial claims had since long been settled in that area (see supra note 2; even if for the sake of argumentation one should take Wrangel and the few other Arctic island into consideration, these are not the ones where the regime of innocent passage proved necessary to defend because of the absence of either overlapping territorial seas or straight baselines linking the islands in question to the mainland), the relevance of such argumentation in the past could be doubted and a fortiori at present, given the changed government policy in this respect. This latter policy change has been closely covered by the present author (Franckx, 1984–1985, 1987, 1989, 1990, 1993b). 21 The 1926 Decree is paraphrased and the sector lines are said not to constitute state boundaries (Kovalev, 2004).
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the 1982 [Convention]’ (Kovalev, 2004). It seems therefore safe to conclude that the latter idea is generally adhered to today in Russian doctrine.22 When R. Churchill in 2001 tried to answer the question whether claims to maritime zones in the Arctic were to be considered as law of the sea normality or rather as polar peculiarity, he had no difficulty in concluding that the former was the preferred answer. Even if Canada and Russia might be considered as somewhat ambiguous in this regard, Churchill nevertheless concluded that ‘this ambiguity stems more from writers (and primarily from writers of the past) than their governments’ (Churchill, 2001). The present findings seem to further confirm these conclusions. The differentiated approach still to be found in some recent findings as to the effect of the ratification of the 1982 Convention on the Arctic claims of Canada on the one hand, namely the straightforward application of the general principles contained therein, and Russia on the other hand, where no such clearcut conclusion is reached but rather replaced by a much more qualified statement (Quiller´e-Majzoub, 2006), seems therefore no longer warranted at present.
6.3 Climate Change Starting points with respect to climate change are the findings of the Arctic Climate Impact Assessment, the result of an international project between the Arctic Council and the International Arctic Science Committee, which were released in November 2004 (Symon, Arris, & Heal, 2005). Based on this detailed scientific analysis, a synthesis report was drawn up trying to put forward some practical conclusions by means of so-called key findings (Hassol, 2004). Especially key finding number 6 of the synthesis report, entitled ‘Reduced sea ice is very likely to increase marine transport and access to resources’, is of particular relevance here. It notes a 5–10 percent estimated reduction in annual average sea-ice extent, most prominent in summer, as well as a 10–15 percent reduction in average thickness over the past few decades, with a 40 percent reduction in the central Arctic Ocean. On the basis of this data, the conclusion is reached that longer seasons of less sea-ice cover of reduced thickness are to be expected, ‘implying improved ship accessibility around the margins of the Arctic Basin (although this will not be uniformly distributed)’. This latter bracketed caveat is further clarified in the report by distinguishing the Northern Sea Route, on the one hand, from the Northwest Passage on the other. As far as the Northern Sea Route is concerned, it is predicted that on the basis of models derived from the above-made observations the number of navigable days, i.e., with less than 50 percent sea-ice concentration, will increase from 20 to 30 days in 2004 to 90–100 days in 2080. And since icebreakers are able to manage waters with a sea-ice concentration of 75 percent, this would in fact open up the Northern Sea Route by 2080 to 150 days. The picture with respect to the Northwest Passage, however, is much more nuanced because the ice conditions in this part of the Arctic are less predictable. 22 Of
course dissonant voices will always be heard (Ovlashchenko & Pokrovskii, 2007). But they definitively seem to represent a minority opinion at present.
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The Canadian Arctic is first of all characterized by a high year-to-year variability despite the general decrease in sea-ice tendency since the late 1960s. Moreover, because of the restricted nature of the waters inside the Canadian northern islands, the melting tendency could result in more icebergs moving into the routes normally used for navigation. The synthesis therefore concludes with respect to the Northwest Passage: ‘[D]espite widespread retreat of sea ice around the Arctic Basin, it is clear that the unusual geography of the Canadian Arctic Archipelago creates exceptionally complex sea ice conditions and a high degree of variability for the decades ahead’ (Hassol, 2004). More recent findings not only seem to sustain these predictions, but even predict an acceleration of the expected timescale of their realization. The exceptional summer melt of 2007 made scientists believe that summer ice might not even make it to 2050 (Kerr, 2007). Because of warmer ocean waters and higher spring temperatures over the Russian part of the Arctic during the spring of 2007, for example, summers without sea ice are now being predicted as soon as within the next 40 years (Cressey, 2007). This contrasts sharply with the possibility uttered in 2004 that in place of an icefree summer, changing climate patterns could well usher in a new ice-age instead (Schwartz & Randall 2003).23 But this scenario seems to be so farfetched that the scientific community reacted by characterizing it as highly unlikely (Broecker, 2004).24 Other phenomena may have been speeding up the present increase in melting, such as prevailing wind patterns during the 1990s, which might predict a slowdown in the melt rate in the future (Kerr, 2005). Other scientists suggest a more cyclic temporary reprieve (Anon, 2007). Still others emphasize that there is a lack of spatial uniformity in the melting pattern of for instance the Northwest Passage itself (Bravo & Rees, 2006). Nevertheless, the general trend towards ‘a seasonally ice-free Arctic Ocean as the system warms seems increasingly certain. The unresolved questions regard when this new arctic state will be realized, how rapid the transition will be, and what will be the impacts of this new state on the Arctic and the rest of the globe’ (Serreze, Holland, & Stroeve, 2007). Certainly, melting in the near recent past has been dramatic with clear implications for navigation in the area. Satellite images of the sea-ice extent during the exceptional summer of 2007 clearly indicate that the whole Northern Sea Route, including its natural choke point Vil’kitskii Strait,25 was totally ice free (Serreze et al., 2007). Even more surprising, the same held true last summer for the Northwest Passage (Kerr, 2007).
23 The argument, brought back to its basics, is that because of the melting of the ice, freshwater will
change the structure of the usually salty and dense waters in the North and cause a thermohaline circulation collapse, preventing the warm Gulf stream from reaching the Arctic basin any longer. This scenario was picked up in the press afterwards (Stipp, 2004). 24 In a reply Schwartz and Randall stated that the purpose of their report was not to further climate science, but rather to imagine the unthinkable. Or to use their own words: ‘We have created a climate change scenario that although not the most likely, is plausible’ (Schwartz & Randall, 2004). 25 This is the most northerly located strait, and therefore normally the most difficult one in terms of ice-conditions, to be negotiated by vessels plying the Northern Sea Route (Franckx, 1988).
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6.4 Projected Consequences in the Legal Sphere If one can therefore assume with a reasonable certainty that the Arctic ice will diminish in extent as well as in thickness during the years to come, even though the exact time frame remains open to conjecture, the effects this will have on the legal regime of navigation in the Arctic seem considerable. At least five submissions can be made in this respect.26 First, as navigation becomes more intensive, the urge to conclude maritime boundary agreements will increase accordingly. As of now, almost all of these boundaries are awaiting a final settlement. Secondly, present-day solutions to settle navigational questions will soon become totally insufficient. The so-called ‘agreement to disagree’ (McDorman, 2005) concluded between Canada and the United States in the wake of the Polar Sea crossing in 1985, for instance, will no longer be sufficient to regulate navigational issues between these two countries because this agreement is restricted to the crossings of U.S. Coast Guard vessels only (Agreement on Arctic Cooperation, 1988). Third, the validity of the straight baselines, and especially the exact status of the waters so enclosed, will become topical once again. Fourth, whether the Northern Sea Route and Northwest Passage can become straits used for international navigation will for sure become a very acute, while at the same time extremely difficult, issue to solve. Fifth, the reliance by coastal states on Art. 234 in order to restrict foreign navigation in the area will become less and less effective over time as the melting process continues to increase. Will the 1982 Convention, believed to constitute the applicable regal regime, be able to take all these new concerns, triggered by climate warming in the Arctic, into consideration to allow an orderly development in the area? The next part will try to respond to this question.
6.5 Potential Implications of the 1982 Convention in Terms of Vulnerability and Adaptive Capacity 6.5.1 Implications in Terms of Vulnerability 6.5.1.1 Low-Level Implications The vulnerability of the 1982 Convention could be considered to stem in the first place from the attempt of the founding fathers of this document to draw up one single legal instrument covering the whole law of the sea, contrary to the approach taken by the International Law Commission previously when preparing the first United Nations Conference on the Law of the Sea in 1958. This conference resulted 26 These submissions were presented at the occasion of the first seminar organized under the project
“The Capability of International Governance Systems in the Arctic to Contribute to the Mitigation of Climate Change and Adjust to its Consequences” (August 30–September 3, 2006), organized by Arctic Centre of the University of Lapland, Rovaniemi, Finland. This paper was presented by the present author on September 1, 2006, Pyh¨atunturi, Finland.
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in the adoption of four nicely separated conventions, from which states could then pick and choose, supplemented by an optional dispute settlement protocol. The 1982 Convention, in contrast, intends to cover all activities in all oceans, including the Arctic. This can be inferred from the fact that the 1982 Convention contains a special section in Part XII (Protection and Preservation of the Marine Environment) containing only one article, with the same title as the section to which its belongs, namely ‘ice-covered areas’.27 The genesis of this particular article clearly underlines that it was meant to be applied specifically to the Arctic.28 The question could thus theoretically be asked how one short single article could possibly deal with all the maritime issues of the Arctic, resulting in the suggestion that this document must be flawed as a possible legal framework governing that area. As already implied in Part 6.2, this way of looking at things, attractive to the layman, can hardly be considered a sensible one from an international legal point of view.29 As far as navigation is concerned, the 1982 Convention clearly starts from the premise, finally accepted by all Arctic states today as argued in that same Part 6.2, that normal rules of navigation apply in that area as well. This means that whether the issue concerns internal waters, baselines, bays, straits, territorial seas, exclusive economic zones or high seas, to name but the most salient ones, the relevant parts of the 1982 Convention apply, as changed, where applicable, by the content of Art. 234. But even beyond the mere navigational concerns, it might suffice to illustrate the general applicability of this document by referring to the intense media coverage accompanying the Russian initiative during the summer of 2007 when one of its submarines planted a flag on the bottom of the ocean at the North Pole. In a strategically sensitive area as the Arctic, such an action of course requires due attention (Stuhltrager, 2008). But unlike what the titles of newspaper articles might induce their readers to believe, this initiative did not set in motion a new, totally unregulated wave of national sovereignty claims to the Arctic proper resulting in bitter clashes with nobody out there to impose a negotiated solution. Indeed, the 1982 Convention not only created the legal justification for coastal states to establish sovereign rights over the seabed and subsoil beyond the 200 n.m. limit,
27 1982
Convention, Section 8, Art. 234. This article reads: ‘Coastal States have 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 pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such 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’. 28 This article, which is sometimes referred to as the Arctic article, had moreover directly been negotiated between the three countries most concerned at the time, namely Canada, the former Soviet Union, and the United States of America (Anon, 1991). 29 The comparison between the Northwest Passage and the use of the Mississippi river in order to come to grips with the applicable regime of navigation in the former, may seem attractive at first sight (Macneill, 2007), but lacks however any plausible legal justification under contemporary international law.
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but it also created a special body to help settle the outer limit of this area of state authority, namely the Commission on the Limits of the Continental Shelf (1982 Convention, Annex II). The unitary character of this document is therefore, by itself, not to be considered as a prohibiting factor, preventing this document from securing an operational legal system in the Arctic. Instead, the fact that the dispute settlement provisions form an integral part of the package will prove to be a non-negligible advantage with respect to navigational matters, a point further developed in Part 6.5.2. The unitary character of the 1982 Convention can therefore be considered to fall in the category of adding to vulnerability to a relatively low degree. 6.5.1.2 Medium-Level Implications Nevertheless, one must admit that this basic approach of the 1982 Convention, whereby the general rules on the law of the sea apply to the Arctic as well, with only one specific article solely devoted to the area in question, may result in the fact that this legal document ‘cannot be seamlessly applied to the Arctic’, as already mentioned before.30 Indeed, there are a number of examples to be given which have an impact on navigation. Reference can be made here to the drawing of Arctic straight baselines by Canada and the former Soviet Union, which were either protested at the time of enactment on paper31 or thereafter in practice.32 Another example is the claim to historic waters in the Arctic, which in Canada has to do with waters on the inside of those baselines (Pharand, 1988, 2007) but in Russia also possibly outside those baselines. Also the reliance on the sector lines with respect to maritime delimitation, which Canada relies upon in its dispute with the United States and Russia in its dispute with Norway (Prescott & Schofield 2005), can be mentioned in this respect, or whether the Northern Sea Route and Northwest Passage are, or could become, straits used for international navigation. Finally, the issue of the correct application of Art. 234, the only article in the 1982 Convention dealing exclusively with the Arctic as already mentioned, can be raised in this respect, especially since parts of it can be considered as still being developed at present (Huebert, 2001a), such as its ‘due regard’ provision through the International Maritime Organization as indicated below. Most of these issues are highly contentious under present-day international law. With respect to the conformity of the baselines to international law, one finds arguments on both sides of the spectrum in legal writings relating to Canada (Scovazzi, 2001 and Prescott and Schofield, 2005 on one side; Vignes, 1989 on the other) as 30 See
supra note 5. Canadian system of straight baselines triggered letters of protest by the United States and the European Community (Roach & Smith, 1996). 32 The Russian system north of the Eurasian continent was only challenged by the United States in 1992 by means of one of its submarines (Roach & Smith, 1996). Unlike the regular application of U.S. Freedom of the Sea program, this particular challenge apparently happened unintentionally (Franckx, 1993a). 31 The
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well as Russia (Brubaker, 1999 on one side; Kaye, 2004, Reisman & Westerman, 1992 rather on the other). The issue of historic waters has been labelled as ‘one of the most controversial in the doctrine and practice relating to the law of the sea. This remains an open question both in the Arctic and in other areas of the world’ (Scovazzi, 2001). Especially in Canada the view that the melting of the ice will diminish the strength of this historic internal waters claim has found proponents (Charron, 2005; Huebert, 2001b, 2003; Lalonde, 2004) as well as opponents in that country (Griffiths, 2003, 2005; McRae, 2007). Sector lines have so far been used only once in Arctic maritime delimitation, namely in the Agreement on the Maritime Boundary, 1990 concluded between the former Soviet Union and the United States (Verville, 1993). This agreement, it should be remembered, has only entered provisionally into force because Russia has so far refused to ratify it. In two other instances mentioned above, parties disagree about the relevance of sector lines in maritime boundary matters. Even though sector lines have been qualified as the most distinctive feature of Arctic maritime boundary delimitation, the final demise of this method has been predicted as Canada and Russia will find a solution with their neighbours for their remaining Arctic maritime boundary disputes (Elferink, 2001). Whether the Northern Sea Route and the Northwest Passage are to be considered straits used for international navigation is an issue still as hotly debated now as it was more than 20 years ago (Becker, 2007, describing new tensions in Northwest Passage). And how underwater navigation by submarines may impact on this discussion, is also hotly debated (McRae, 2003; 2007). The subtle reference in a recent article by an American scholar to the statement by the chairman of the U.S. delegation to the second United Nations Conference on the Law of the Sea in 1960, namely that the Northwest Passage had just been opened by two U.S. atomic submarines, might be telling in this respect (Oxman, 2006). Military cooperation between the Canadian and U.S. armed forces only further complicates this issue (Byers, 2002). Finally, since Art. 234 has been negotiated directly between Canada, the former Soviet Union and the United States, i.e., countries with totally opposing interests in the area, it should not surprise that problems of interpretation remain. In fact, this article has been described from the start as ‘probably the most ambiguous, if not controversial, clause in the entire treaty’ (Lamson, 1987) or in a more metaphorical manner as ‘a witch’s brew, a caldron of legal uncertainty which could be stirred in favour of either the coastal or shipping state’ (Lamson & VanderZwaag, 1987). The analysis by the Committee on Coastal State Jurisdiction Relating to Marine Pollution of the International Law Association, as reproduced in its final report of 2000, gives a good overview of these many difficulties of interpretation (Franckx, 2001). This begs the question whether, despite the legal framework available, one is still not lost at sea if the conclusion has to be reached that even the only article specifically applicable to the Arctic does not really provide clear and firm guidance. It is not the goal of the present chapter to try to give concrete answers to the above-mentioned outstanding Arctic issues in the framework of the 1982 Convention, based on a detailed legal analysis. Moreover, limitation of space would not
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allow for such an analysis. Its purpose is simply to illustrate that the 1982 Convention certainly has its vulnerabilities, and that the lack of specificity may be considered as one of them. Certainly, if the law is not clear and is open to broadly diverging interpretations states will naturally try to construe the law in a way most advantageous to their own situation. With respect to the legal nature of the Northwest Passage it has for instance even been doubted whether the 1982 Convention does provide the definitive answer (McRae, 2003). Since these national claims appear to be developed praeter or secundum legem, they are qualified as medium-level impacts on vulnerabilities for the purpose of this study. 6.5.1.3 High-Level Impacts on Vulnerability Even more than the lack of specificity, the real implication of the 1982 Convention in terms of adding to vulnerability in management of the area is believed to stem from the attempt of certain coastal states to unilaterally try to change the content of certain provisions of a convention, set up as a package deal from which no derogations are allowed.33 This trend of so-called creeping jurisdiction, which at times has put pressure on the 1982 Convention in other areas,34 certainly existed in the Arctic in the past (Franckx, 1993b),35 and at present sometimes still have a tendency to resurface there. Indeed, in some instances the normal reading of the law does appear to be clear. Nevertheless one cannot but note that states develop arguments with respect to such clear provisions, no longer secundum or praeter legem, but rather contra legem. One such example will be given for each of the two gate holders of Arctic shipping, namely Canada and Russia, by way of example. Canada As far as Canada is concerned, the example of the application of Art. 8 (2) of the 1982 Convention springs to mind. This article reads as follows: ‘[W]here the establishment of a straight baseline in accordance with the method set forth in article 7 [i.e., straight baselines] has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters’. It seems undeniable that before drawing straight baselines in 1985, Canada did not consider the waters on the inside of these baselines as internal waters. The mere fact that the governmental reaction to the Manhattan crisis in 1969–1970 consisted, inter alia, of enlarging the territorial sea to 12 n.m. in order to be able to better control shipping at the east and west entrances of the Northwest Passage appears to be sufficient proof of the matter (Franckx,1993b). 33 This
document, it must be remembered, does not allow for reservations or exceptions, unless explicitly allowed by it. See 1982 Convention, Art. 309. 34 About the pressure placed on the 200-mile limit, see for instance the recent writings by the present author (Franckx, 2005, 2006a, 2006b, 2006c, 2007). 35 This was, as it were, Ariadne’s thread running through the whole book.
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A detailed argument attempted to demonstrate that as long as Canada was not a party to the 1982 Convention, this article did not apply to it (Pharand, 1988). Yet it appeared logical to conclude that were Canada to become a party to this legal instrument, Art. 8 (2) would become fully applicable. As mentioned above, the latter happened in 2003.36 But this same author now comes to the conclusion that these baselines were drawn nearly 20 years before Canada joined the 1982 Convention and that at that time, i.e., 20 years ago, Canada was not bound by the content of Art. 8 (2), nor the corresponding rule of the Convention on the Territorial Sea, 1958, to which Canada was not a party, nor to a corresponding rule of customary law, which was not existing (Pharand, 2007). The argument now goes that the application of this rule contained in Art. 8 (2) is not automatically compulsory for all parties to the 1982 Convention, but only for those who were bound by its content at the time they implemented it by establishing straight baselines (McRae 2007). A similar line of reasoning can also found by other Canadian authors (Byers, 2007; Lalonde, 2004), sometimes stressing the fact that the explicit wording ‘in accordance with . . . article 7’, to be found in Art. 8 (2), further exonerates Canada in a more formal sense because this country did not establish its system of straight baselines in 1985 on the legal basis of this Art. 7 of the 1982 Convention, since it was not yet a party to this legal instrument. The substantive argument seems to be a rather strange one for it would imply for instance that if a country like Peru were tomorrow to become a party to the 1982 Convention it could claim that Art. 3, establishing a maximum territorial sea width of 12 n.m., would not be applicable to it because at the time this country claimed a 200 n.m. zone, this country was not bound by this article, nor by the Convention on the Territorial Sea, 1958, indirectly limiting the territorial sea to a maximum of 12 n.m., nor by customary international law, the exact content of which was at that time very much contested. This kind of intertemporal application of the 1982 Convention stands at right angles with the package deal approach, which forms its backbone. Or as more generally stated by one author: ‘This [Canadian] approach is unconvincing; otherwise, the entire range of excessive claims predating the 1982 Convention similarly would be permissible – creating a global crazy quilt of conflicting maritime claims and defeating the purpose of the [1982] Convention as “one gigantic package deal”’ (Kraska, 2007). But also the more formalistic argument, based on the explicit reference to Art. 7, is not really convincing because Art. 8 (2) simply refers to ‘the method’ set forth in Art. 7, not that article at such. Russia With respect to Russia, a non-negligible issue concerns the exact field of application of the Russian regulations concerning the Northern Sea Route (Franckx, 2009). By itself the concept of Northern Sea Route is not free from ambiguity when compared to the related notion of the Northeast Passage. Authors very often find it essential to
36 See
supra note 8.
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stress the importance of the difference, but when trying to explain the distinguishing elements the picture becomes rather hazy (Koroleva, Markov, & Ushakov, 1995; Timchenko, 1997, 2001). As it stands at present, the Northern Sea Route forms part – be it a basic part – of the Northeast Passage, which is the larger entity (Granberg, Mikhailichenko, Peresypkin, & Ushakov, 2006a). This has foremost to do with the horizontal extent of both seaways. The Northern Sea Route is said to start in the Arctic in the west from the western entrances of Novaia Zemlia (Regulations for navigation, 1990), whereas the Northeast Passage also includes the Barents Sea. Recent statements made by the Director of the Northern Sea Route Administration, declaring that the Guide to Navigation, 1996, applicable to the Northern Sea Route, also applies to the ice-covered parts Barents Sea (Gorshkovsky, 2003),37 and by inter alia the editors of a recent authoritative book on the Northern Sea Route stating that the latter’s ‘functional boundaries’ extend to the ice-covered areas of the south-eastern part of the Barents Sea (Granberg et al., 2006a, Granberg, Mikhailichenko, Peresypkin, & Ushakov, 2006b), now also seem to blur the only remaining clear distinction. For when one looks at the difference in vertical application of both concepts, one runs into even more difficulties. Since the present-day Russian legislation applicable to the Northern Sea Route is based on the extended competence granted to the coastal states in ice-covered areas on the basis of Art. 234, it normally implies that the application of this particular legal framework should be restricted to the 200 n.m. exclusive economic zone, and that everything beyond that falls under the concept Northeast Passage. However, already at the time of the establishment of the Regulations for navigation, 1990 it was argued that the route varies great distances in latitude depending on the ice conditions, sometimes even passing through portions of the high seas (Kolodkin & Volosov, 1990). This position seems today to be the prevailing attitude in Russian doctrine, finding its reflection not only in the specialized literature on the law of the sea (Gutsuliak, 2006; Kolodkin et al., 2007) but also in the general works on international law (Lukashuk, 2005). The Russian practice of experimenting with variants to the standard itineraries normally followed by ships plying the Northern Sea Route, i.e., either circumnavigating some or all of the Russian Arctic islands to the north, called transit voyages, or crossing the North Pole area, called trans-Arctic voyages, seems to be particularly relevant in this respect (Brestkin et al., 2006). All this seems to boil down to the position that in the Arctic, the Northern Sea Route does equate to the Northeast Passage, certainly east of the western entrances to Novaia Zemlia as already suggested in certain western publications (Brubaker, 1999, 2005; Ørebech & Brubaker, 2006, all depicting the Northern Sea Route by means of a line running from the northern tip of Novaia Zemlia up to the North Pole and then back to the Bering Strait), and maybe even including large parts of 37 The Guide to Navigation, 1996, includes the full text of the Regulations for navigation, 1990, the
Regulations for icebreaker and pilot guiding, 1996 and the Requirements for the design, equipment and supplies of vessels, 1996, constituting at present the legal regime applicable to the Northern Sea Route (Franckx, 2009).
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the Barents Sea. How all this is to be reconciled with the straightforward notions to be found in Art. 234, using terminology as ‘within the limits of the exclusive economic zone’ and ‘the presence of ice covering such areas for most of the year’,38 is extremely hard to understand. Since such examples seem to contradict the basic legal framework applicable in the Arctic, they have been qualified as high-level impacts with regard to adding to vulnerability for the purpose of the present paper.
6.5.2 Adaptive Capacity In view of all these vulnerabilities of the 1982 Convention, the next question to be addressed is whether this document, and the a-typical regime it represents, can be seen as sufficiently adding to adaptive capacity to alleviate the new strains posed upon the Arctic navigation regime as a result of global warming. Indeed, the 1982 Convention is different from many other international agreements in that it neither bestows a specifically established body nor the conference of the parties with the specific task of developing the instrument itself. And even though the conference of the parties is mentioned in Art. 319, this body has merely been attributed with administrative powers relating to appointments or financial matters. Whether this body also has the power to review the functioning of the 1982 Convention itself is far from clear since widely diverging opinions exist among states in this respect (Elferink, 2004). Furthermore no procedure to further develop the instrument through protocols or annexes has been included in this document, only an amendment procedure (Arts. 312–316), which appears rather difficult to apply in practice (Freestone & Elferink, 2005). But despite these specificities, the over-all degree to which this document can add to adaptive capacity has been considered as not inferior to other dynamic or living instruments, based on a mix of legally binding agreements, whether universal or regional, and soft law, clearly making the 1982 Convention a non-self-contained legal regime (Boyle, 2005, 2006). The general flexibility of the latter regime finds no exception in the Arctic, as will be argued next. It is believed that this document is rather well equipped to deal with the different possible scenarios, especially as far as navigation in the Arctic is concerned. First of all, one must not forget that Art. 234 is quite exceptional in the over-all framework of the 1982 Convention, for this is the only place where national rules concerning vessel-source pollution need not conform to generally accepted international rules and standards (Kwiatkowska, 1989). It implies that if Arctic shipping picks up, the coastal states retaining control over the Northern Sea Route and the 38 Since warming ocean temperatures – 3 degrees Celsius since 1980 in winter – have been mainly
held responsible for a decrease in winter-ice in the Barents Sea, leading to even less summer ice in the future (Francis, 2007) and taking into account the prevailing ocean currents in the south-eastern part of the Barents Sea, the timing of this proposed extension of the field of application of the legal regime of the Northern Sea Route looks rather unfortunate.
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Northwest Passage will have ample room to protect their maritime zones. At the same time, however, it must be noted that their extensive powers are not totally discretionary, for Art. 234 contains the obligation for coastal states, while establishing their laws and regulations concerning shipping, to give ‘due regard to navigation’. The flexibility included in this notion enhances the adaptive capacity of the article. The fact that the parties involved will very often have a different interpretation of this vague notion is not to be considered an added vulnerability, because Art. 234 remains subject to the system of compulsory dispute settlement, as stressed by Conclusion No. 14 of the Committee on Coastal State Jurisdiction Relating to Marine Pollution of the International Law Association (Franckx, 2001). If shipping increases in the future, a neutral third party appointed in accordance with Part XV of the 1982 Convention (Settlement of Disputes) will always be able to give a concrete content to this vague notion, balancing the interests of the coastal state and the flag state. Or as stated by one author: ‘As these duties of due regard are mutually applicable, the potential for them to regulate a dispute between users is slight. It is only when due regard obligations can be subjected to third-party procedures that the possibility exists for these duties to have a meaningful application that would take into account the differing circumstances’ (Klein, 2005). And since the ultimate purpose of Part XV was to balance the coastal state powers granted in Parts V (Exclusive Economic Zone) and XII (Protection and Preservation of the Marine Environment) to the advantage of the freedom of navigation (Boyle, 1997), it is submitted that while Art. 234 leaves a large discretion to the coastal state in regulating navigation in ice-infested waters, it clearly does not give it carte blanche, allowing thus for the orderly development of the law if shipping were to increase in the future. The guidelines which were worked out in the framework of the International Maritime Organization for ships operating in ice-covered waters (Guidelines for Ships, 2002), as well as the additional work by the International Association of Classification Societies in this respect (Øystein, 2008), may already be considered as a multilateral effort, be it at present non-legally binding, trying to give concrete content to this notion of due regard in the framework of Art. 234 (Huebert, 2001a). If Part XV of the 1982 Convention was primarily accepted by its founding fathers in order to ‘maintain the integrity of the Convention’s compromise package’ (Noyes 1989), Art. 234 forms a case in point as far as the practical implementation of this general policy is concerned. Moreover, the interpretation to be given to such terms is not ex tunc, but ex nunc, meaning that if shipping increases as a result of climate change ‘due regard’ will have to be interpreted in a context of increased navigation and not in that of the sporadic journeys as they existed in 1982 when this convention was concluded. Such terms, in other words, allow an evolutionary interpretation (Boyle, 2005). The only article of the 1982 Convention exclusively dealing with the Arctic seems furthermore especially well suited to take into account climate change not only in a medium, but also in a long-term perspective. As further warming will most probably in a first phase make ice-breaker assisted navigation more plausible, the situation just described will apply. But if in the long run not only ice-free summers, but maybe even ice-free winters were to become a reality, the adaptive capacity of Art. 234 appears to be extremely well suited to take into consideration such new developments as well. For it must be remembered that the notion of Arctic waters
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is nowhere used in the article, only ‘ice-covered areas’, which has been defined in the article itself, as already mentioned above, as ‘ice covering such areas for most of the year’.39 So even were ice to disappear completely in the Arctic, this article would be well adapted to the different steps in the climatic process leading up to that eventuality, for it would simply stop being operative any longer somewhere along that process, implying that no specific coastal state powers are needed anymore and that these Arctic waters would become totally governed by the normal rules of navigation to be found elsewhere in the 1982 Convention. Since there appears moreover to be no good reason why Art. 8 (2) should be excluded from the compulsory dispute settlement part of the 1982 Convention, the conclusion seems to be justified that those issues which have been characterized as high-level vulnerabilities are covered by Part XV, and therefore should not normally disturb the navigational regime if and when the latter will become fully operational. Instead, all these issues would be solved by making use of the procedures explicitly provided by the 1982 Convention for those purposes. Part III (Straits used for International Navigation) should not be excluded from the system of compulsory dispute settlement either, especially since it squarely relates to the freedom of navigation. The same, in principle, holds true with respect to the issue of straight baselines, characterized as a medium-level vulnerability by the present contribution, unless the issue were to be tangled up with other issues, like for instance historic waters or maritime boundary delimitation, in which case it would be for the body competent under Art. 287 to decide how to characterize the dispute in question (Klein, 2005). For indeed, Canada as well as Russia, have listed historic bays and titles, as well as maritime boundary delimitations, as optional exceptions under Art. 298.40 The United States, if it ever becomes a party to the 1982 Convention, will very likely act accordingly (U.S. Senate Committee, 2007). Consequently, these latter issues will remain without a solution if the parties cannot find common ground in a negotiated manner. But in this the Arctic does not differ from any other part of the globe, meaning that the vulnerability resultant of these issues in the Arctic can hardly be considered as specific to that area. Moreover, the qualification of the 1982 Convention as the Constitution for the Oceans, as already mentioned before, should not give the impression that further developments are especially hard or even impossible to arrive at. Indeed, constitutions come in different forms and while some of them have proven difficult to amend, others have been changed on a rather regular basis. The 1982 Convention clearly falls into the latter category, for it has already been ‘implemented’ twice (Agreement relating to the Implementation, 1994; Agreement for the Implementation of the Provisions, 1995). Nothing prevents it from being ‘implemented’ a third time, if this should prove necessary. And though some have suggested this should happen with respect to the Arctic in general (Dubner, 2005), the present author is not convinced that such development should at present be envisaged, certainly not in order to be able to cope with future navigational issues. What is of course
39 See 40 See
supra note 27. supra note 9.
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always possible, and what the convention does not preclude either, is the conclusion of regional agreements. The latter as a matter of fact have been said to constitute ‘a significant source of further development of the law of the sea’ (Boyle, 2005). Once again, the Arctic forms no exception for a certain interplay with the 1982 Convention has already been noted (Stokke, 2007). The latter can mean either the involvement of competent international organization, in casu the International Maritime Organization, or regional navigational arrangements as for instance suggested by others (Brubaker, 2005), so long of course as the latter comply with Art. 311 of the 1982 Convention. As already mentioned, the 2002 Guidelines may provide a good example of the former.
6.6 Conclusions Starting out from the predicted climate change, indicating that the ice cover in the Arctic Ocean will continue to diminish during the years to come, this chapter has highlighted some navigational concerns which will most certainly require increased international attention in the future. And even though the exact timing may remain open to conjecture at present, the fact that these issues will arrive on the international agenda seems today generally accepted. The present chapter subsequently tried to highlight the way in which these issues may result in increased vulnerability seen in context of the international legal regime based on the 1982 Convention which today seems to be generally accepted by all major players in the Arctic as containing the basic legal rules governing the area. For mere didactical purposes, a distinction was made between low, medium and highlevel impacts on vulnerability. The conclusion reached by the present contribution is that the listed high-level impacts as well as a good number of medium-level impacts can be solved in a satisfactory manner on the basis of the 1982 Convention itself. Other medium-level issues, it must be admitted, cannot, but this difficulty is not specific to the Arctic region. It is nevertheless presumed that if navigation really starts to pick up in the Arctic, the coastal states will feel the urge to pursue their efforts at arriving at a negotiated solution with more vigour, whether it concerns maritime boundary questions or more strict navigational issues. In a region as sensitive as the Arctic, for instance, the grounding of a vessel in a contested zone might easily trigger similar heated reactions as between Greece and Turkey during the middle of the 1990s, even in the absence of any territorial dispute over islands (Pratt & Schofield, 1996; Economid`es, 1997; Raftopoulos, 1997). With respect to navigational issues as such, one could think of pursuing the idea of developing the 2002 Guidelines into a legally binding document (Øystein, 2008). The submission is therefore made that the 1982 Convention appears to have sufficient adaptive capacity to develop increased navigation into the Arctic in an orderly manner once it occurs. Now that all directly interested players finally accept the 1982 Convention as the basic legal regime governing the Arctic, it would be counterproductive to be willing to create a totally novel legal instrument instead. The
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obligation for states parties to settle most of their future disputes in this area in accordance with Part XV of the 1982 Convention is hoped to be able to break the vicious circle of unilateral action-reaction, which has been so typical of the development of the Arctic navigational matters so far. It is therefore hoped that the United States will become a party to this document before the Arctic really opens up. The possibility of increased navigation in the Arctic adds one more good reason to the already long list why the U.S. Senate should give its advice and consent to this document.
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Chapter 7
Climate Change and Arctic Fisheries Erik J. Molenaar
Abstract Climate change will have a variety of consequences for marine capture fisheries within the broadly defined Arctic marine area. Among these are new and expanding fisheries in the Arctic Ocean. This chapter provides an overview of current Arctic fisheries, the current international legal and policy framework with respect to Arctic fisheries and some national regulation over Arctic fisheries. This is complemented by the identification of gaps in the international legal and policy framework and national regulation and options for addressing them. Among the options are ensuring the availability of relevant scientific data; individual action by Arctic Ocean coastal states and other states in their capacities as flag, coastal, port and market states and with regard to their natural and legal persons; bilateral or subregional arrangements between the relevant Arctic Ocean coastal states on the conservation and management of shared fish stocks; a regional declaration on new fisheries in the Arctic marine area; and one or more state-of-the-art RFMOs or Arrangements.
7.1 Introduction It is now widely accepted that global climate change will have dramatic impacts for the Arctic. The rapid warming of the Arctic climate was the first and most prominent of the 10 key findings of the 2004 Arctic Climate Impact Assessment ([ACIA], 2004, 2005). On 15 September 2007, the Arctic ice cap was 22% below the last record set in 2005 (Arctic sea ice, n.d.). This 2007 record exceeded the
E.J. Molenaar (B) Utrecht University, NILOS, Achter Sint Pieter 200, 3512HT Utrecht, The Netherlands e-mail:
[email protected] This paper builds on the author’s contributions to the project ‘Arctic TRANSFORM: Transatlantic Policy Options for Supporting Adaptations in the Marine Arctic’, funded by the European Commission, Directorate-General External Relations (info at www.arctic-transform.eu). The author is grateful for the comments received on his contributions by other participants in the project.
T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 7,
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computer model predictions used to prepare the Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report (AR4) in 2007 (Arctic ice retreating, 2007). While the 2007 record seems unlikely to be broken in 2008 (Arctic sea ice, n.d.), many scientists now fear that the ‘Arctic meltdown’ has become irreversible. Of particular importance to this chapter are ACIA’s key findings No. 4: ‘Animal species’ diversity, ranges and distribution will change’ and No. 6: ‘Reduced sea ice is very likely to increase marine transport and access to resources’ (ACIA, 2004, Executive Summary, p. 10). While the former predicts changes in the composition of the Arctic marine ecosystem in quantitative, qualitative, spatial and temporal terms, the latter predicts increased pressure on this ecosystem due to more intensive exercise of existing maritime uses as well as new uses. Examples of these are maritime navigation (for the transport of persons and cargo, including for tourism and military purposes), exploration and exploitation of living (e.g., fishing) and non-living (e.g., oil and gas) marine resources, construction of artificial installations, laying of cables and pipelines, overflight and marine scientific research (including bio-prospecting). This chapter starts with Section 7.2 on current Arctic fisheries and Section 7.3 on Arctic fisheries and climate change. Section 7.4 provides some basic information on the law of the sea in the Arctic marine area, Section 7.5 gives an overview of the international legal and policy framework with respect to Arctic fisheries and Section 7.6 devotes some attention to national regulation over Arctic fisheries. The chapter concludes with Section 7.7 on the gaps in the international legal and policy framework and national regulation and options for addressing them. In this chapter, the acronym regional fisheries management organization (RFMO) is defined as a regional intergovernmental organisation with the competence to impose on its Members legally binding measures for the conservation and management of target fishery resources and regulating impacts of fishing on non-target species.1 The term ‘Arrangement’ is understood to be a bilateral or (sub-)regional cooperative mechanism other than an intergovernmental organisation, but otherwise has in principle the same characteristics as an RFMO.2 In this chapter, the following are regarded as ‘Arctic states’: Canada, Denmark (in relation to Greenland), Finland, Iceland, Norway, the Russian Federation, Sweden and the United States. Even though there is no universally accepted definition for the ‘Arctic Ocean’, it seems generally accepted that there are only five coastal states to the Arctic Ocean, namely Canada, Denmark (in relation to Greenland), Norway, the Russian Federation and the United States.3 This chapter focuses exclusively on marine capture fisheries; aquaculture is therefore beyond its scope. As regards species, the chapter will often distinguish between fisheries for target species and the impacts of fisheries on non-target species. Target species are exclusively ‘fishery resources’, which are defined as
1 See
also Section 7.5.1 below. term ‘Arrangement’ is derived from the term ‘arrangement’ as defined in Art. 1(1)(d) of the Fish Stocks Agreement (Agreement for the Implementation, 1995). 3 This can for instance be deduced from the Ilulissat Declaration (2008). 2 The
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fish, molluscs, crustaceans and sedentary species.4 Non-target species can be fishery resources and marine mammals but also birds and (other) benthic species, including corals. Even though fisheries are in this chapter approached from a sectoral perspective, the objective is to pursue an ecosystem approach to fisheries (EAF), defined in the FAO Technical Guidelines on ‘The ecosystem approach to fisheries’ (Food and Agriculture Organisation [FAO], 2003, Suppl. 2) as follows: An ecosystem approach to fisheries strives to balance various societal objectives by taking into account the knowledge and uncertainties about biotic, abiotic and human components of ecosystems and their interactions and applying an integrated approach to fisheries within ecologically meaningful boundaries. (FAO, 2003, p. 6)
More concrete, operationalized objectives of EAF include minimising or avoiding impacts of fishing on non-target species, for instance in terms of by-catch and ensuring availability of food in light of predator-prey relationships. These objectives complement the classic objectives of avoidance of over-exploitation of target species. As a consequence of the sectoral perspective of this chapter, the focus will be exclusively on international instruments and intergovernmental and other relevant international bodies that relate to, or pursue, conservation as well as management. No attention will therefore be paid to those that focus exclusively on conservation of species and habitat by various means, including by the regulation of international trade.
7.2 Current Arctic Fisheries There is currently no universally accepted definition for the spatial scope of the marine Arctic. Relevant instruments and processes use different definitions for the Arctic, for instance the area north of the northern treeline or the area north of the Arctic circle (66◦ 33 North). In this chapter, Arctic fisheries are regarded as the fisheries that occur in marine areas within the outer limits of the so-called ‘AMAP area’, as agreed by the Arctic Monitoring and Assessment Programme (AMAP) of the Arctic Council. These are the marine areas north of the Arctic Circle (66◦ 32 N), and north of 62◦ N in Asia and 60◦ N in North America, modified to include the marine areas north of the Aleutian chain, Hudson Bay, and parts of the North Atlantic Ocean including the Labrador Sea. For the purpose of this chapter, these marine areas are referred to as the ‘Arctic marine area’. It should be noted, however, that other relevant global international organisations have opted either explicitly or implicitly for different definitions of the Arctic or marine Arctic. For instance, FAO (United Nations Food and Agriculture Organization) Statistical Area No. 18: ‘Arctic Sea’, comprises Hudson Bay and adjacent waters, waters within the Canadian Arctic Archipelago and all of the Arctic Ocean, except the Atlantic sector.
4 Based
on Art. 1(b) of the amended NEAFC Convention (1980).
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The broad spatial scope of the Arctic marine area implies that it includes a wide range of different ecosystems, fish stocks and fisheries. Significant differences exists for instance between the Atlantic and Pacific sides of the Arctic marine area. Cognisant of these differences, Chapter 13 on ‘Fisheries and Aquaculture’ of the Arctic Climate Impact Assessment (ACIA) Scientific Report opts to focus on the four major Arctic and Subarctic marine fisheries and their ecosystems, namely (i) the Northeast Atlantic (Barents and Norwegian Seas) (ii) the Central North Atlantic (waters around Iceland and off East Greenland), (iii) Northeast Canada (Newfoundland and Labrador Seas) and (iv) the North Pacific (Bering Sea). The species on which this ACIA chapter focuses are ‘those few circumpolar species (capelin (Mallotus villosus), Greenland halibut (Reinhardtius hippoglossoides), northern shrimp (Pandalus borealis), and polar cod (Boreogadus saida)) and those of commercial importance in specific regions. The latter include Atlantic cod (Gadus morhua), haddock (Melanogrammus aeglefinus), Alaska pollock (Theragra chalcogramma), Pacific cod (Gadus macrocephalus), snow crab (Chionoecetes opilio)’ (ACIA, 2005, p. 693). Other species discussed by the ACIA include herring, salmon and (red) king crab. It is nevertheless clear that these species are merely a selection, based to a considerable extent on the focus on the four spatial areas mentioned above. Saying anything useful about the relative importance of fisheries for these species is impossible without going into a lot of detail.5 The ACIA chapter also notes the complexity of the functioning of Arctic marine ecosystems as well as the limitations and shortcomings of science (ACIA, 2005, p. 692). Presumably, a lot of data required for pursuing an EAF is also presently not available. The ACIA does not examine subsistence fisheries in the Arctic marine area under a separate heading, but devotes attention to them within the scope of the four spatial areas mentioned above. It seems likely, however, that subsistence fishing in the other parts of the Arctic marine area will be relatively more important to indigenous peoples.
7.3 Arctic Fisheries and Climate Change The following seem to be the main consequences of climate change to the Arctic marine area: • much more rapid warming of Arctic surface temperatures in comparison with the rest of the world. As a consequence, Arctic waters will warm more rapidly as well; • substantial reductions of Arctic sea ice coverage and thickness;
5 For such detailed information see ACIA (2005, Chapter 13). Other information can be obtained through the Arctic Fisheries Working Group operating under the International Council for the Exploration of the Sea (ICES; see www.ices.dk). This working group, however, has so far been focusing exclusively on the Northeast Atlantic.
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• reduced salinity due to influx of fresh water as a consequence of melting sea ice (which is essentially salt free) and glacial ice; • other oceanographic and meteorological changes (e.g., more storms and waves) in particular due to changes in air and water temperature and sea ice coverage; and • increasing acidification of the world’s oceans due to increasing uptake of CO2 (which is not just relevant to the Arctic marine area). That these changes will affect Arctic marine ecosystems is certain, but accurate predictions cannot be made. One general conclusion is that a ‘moderate warming will improve the conditions for some of the most important commercial fish stocks’, as well as for aquaculture. ‘This is most likely to be due to enhanced levels of primary and secondary production resulting from reduced sea-ice cover’ and more ‘extensive habitat areas for Subarctic species such as cod and herring. [. . .] Global warming is also likely to induce an ecosystem regime shift in some areas, resulting in a very different species composition’ (ACIA, 2005, p. 692.). One area in which an ecosystem shift occurred in the past is the Bering Sea. The composition of Arctic marine ecosystems will undoubtedly change, both qualitatively and quantitatively. Some species will at some stage disappear and others (e.g., due to northward migration) will be added and the relative importance of species in abundance will change as well. These changes will of course be spatially and temporally differentiated. Where new fishing opportunities will occur (on the high seas or within coastal state maritime zones) and with respect to which species or categories of species (e.g., shared, anadromous, straddling or highly migratory) is also difficult to predict.6 It will be similarly difficult to predict which states – Arctic Ocean coastal states or other states – will benefit or suffer and how subsistence fishing will be affected, among other things by competition with commercial fisheries. Finally, as reduced ice overage and thickness will also enable other human activities – most importantly shipping and offshore hydrocarbon activities – these activities may compete with fishing in a spatial sense or affect them by pollution and other impacts. The impact of current and future Arctic fisheries on the marine environment and marine biodiversity in the Arctic is not likely to be fundamentally different from impacts to the marine environment and biodiversity in other parts of the globe. Arctic fisheries could lead to over-exploitation of target species and a variety of impacts on non-target species, for instance on dependent species due to predatorprey relationships, on associated species due to by-catch and on benthic species due to bottom fishing.7 In view of the broad spatial scope of the Arctic marine area, such undesirable effects are without doubt already occurring, even though not necessarily on a very serious scale.
6 See 7 See
Section 7.5.3 on the LOS Convention. Section 7.5.3 on the LOS Convention.
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7.4 The Law of the Sea in the Arctic Marine Area The Arctic marine area is geographically covered in its entirety by the current international law of the sea. The cornerstones of the current international law of the sea are the United Nations Convention on the Law of the Sea ([LOS Convention], 1982)8 and its two implementation agreements, the Part XI Deep-Sea Mining Agreement (Agreement relating, 1994)9 and the Fish Stocks Agreement (Agreement for the Implementation [Fish Stocks Agreement], 1995).10 The LOS Convention’s overarching objective is to establish a universally accepted, just and equitable legal order – or ‘Constitution’ – for the oceans that lessens the risk of international conflict and enhances stability and peace in the international community. The LOS Convention currently has 156 parties, the Part XI Deep-Sea Mining Agreement 133 parties and the Fish Stocks Agreement 71 parties. The eight Arctic states are parties to all these treaties, except for the United States, which is not a party to the LOS Convention and the Part XI Deep-Sea Mining Agreement (Oceans and the Law of the Sea website). The European Community (EC) is party to all three treaties. This is important in view of the fact that Denmark, Finland and Sweden are Member States of the European Union (EU) and Iceland and Norway are parties to the EEA Agreement (Agreement on the European [EEA Agreement], 1993).11 The most basic distinction between marine areas made by the LOS Convention is between the maritime zones of coastal States – also referred to as ‘areas within national jurisdiction’ – and the commons seaward thereof – also referred to as ‘areas beyond national jurisdiction’. The maritime zones of coastal States can consist of: internal waters, archipelagic waters, territorial sea, contiguous zone, exclusive economic zone (EEZ) and continental shelf. As will become clearer below, the EEZ includes the continental shelf but in some cases there is also an ‘outer’ continental shelf that extends seaward of the EEZ. The two marine commons are the high seas - usually seaward of the EEZ (where established) – and the so-called ‘Area’ – seaward of the EEZ or outer continental shelf. The Area is defined as ‘the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ (LOS Convention, 1982, art. 1(1)(1)). There are four high seas pockets (enclaves) in the Arctic marine area. These are the so-called ‘Banana Hole’ in the Norwegian Sea, the so-called ‘Loophole’ in the Barents Sea, the so-called ‘Donut Hole’ in the central Bering Sea and the central
8 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force 16 November 1994. 9 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994. In force 28 July 1996. 10 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001. 11 Agreement on the European Economic Area, Brussels, 17 March 1993. In force 1 January 1994.
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Arctic Ocean.12 Moreover, it is likely that there will be two pockets of the Area in the central Arctic Ocean.13 This will only become apparent, however, after all Arctic Ocean coastal states have established the limits of the outer continental shelf ‘on the basis of’ (LOS Convention, 1982, art. 76(8)) the recommendations of the Commission on the Limits of the Continental Shelf (CLCS), without culminating in international dispute settlement mechanisms. It should also be noted that while the Treaty of Spitsbergen (1920)14 grants sovereignty over Svalbard to Norway, there is disagreement between States as to whether Norway is entitled to establish an EEZ and outer continental shelf off Svalbard and exercise therein the usual sovereign rights and jurisdiction granted to coastal States under the LOS Convention and, if so, whether the equal rights accorded to parties to the Treaty of Spitsbergen should apply to these maritime zones. The fact that the current international law of the sea applies to the entire marine Arctic, however defined, is also emphasised by the five Arctic Ocean coastal states in the Ilulissat Declaration (2008). Accordingly, as the ‘law of the sea’ is an ‘extensive international legal framework’, they ‘therefore see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean’ (Ilulissat Declaration, 2008). Conversely, they recognise the need for ‘appropriate measures’ as a consequence of ‘developments in the Arctic Ocean’ (Ilulissat Declaration, 2008). In the less than a single page text that follows, reference is among other things made to the safety of navigation, vessel-source pollution and contingency planning and emergency response to incidents with shipping and offshore exploitation. Notably, no mention is made of international fisheries instruments, fisheries management in general or the need for holistic, integrated or cross-sectoral governance or management. It is worth noting that the Ilulissat Declaration refers to the ‘law of the sea’ but not explicitly to the LOS Convention. This is hardly surprising as the United States is not a party to the LOS Convention. It is well-known that the United States takes the view that, except for its Part XI, the LOS Convention is already part of customary international law and in that way creates rights and obligations for the United States. However, while the United States does not also explicitly accept the dispute settlement mechanism in Part XV of the LOS Convention from its statement on customary international law, this mechanism is not able to become part of that body of law as a consequence of its procedural nature (Cf. McDorman, 2000, p. 259). The dispute settlement mechanism in Part XV is widely regarded as a critical component of the package-deal that paved the way for the adoption of the LOS Convention. The fact that it provides for compulsory third party dispute settlement
12 It should be noted that the map of the NEAFC Convention Area that is currently available on the
NEAFC website (www.neafc.org) does not show the high seas pocket in the Arctic Ocean. inter alia, the figure in Oude Elferink and Rothwell (2001, p. 150). See also the map at www.dur.ac.uk/ibru/resources/arctic. 14 Treaty on the Status of Spitsbergen, Paris, 9 February 1920. In force 14 August 1925. 13 See,
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entailing binding decisions in many scenarios was a novelty in international law at the time. It thereby helps to safeguard the preservation of the package-deal of the LOS Convention by undesirable applications and interpretations of its provisions. The non-applicability of the dispute settlement mechanism of Part XV of the LOS Convention as between Arctic Ocean coastal states is therefore a significant gap in the ‘extensive international legal framework’ referred to in the Ilulissat Declaration.
7.5 International Legal and Policy Framework for Fisheries Management 7.5.1 Introduction The aim of this section is to provide an overview of the international legal and policy framework with respect to Arctic fisheries. The ensuing subsections address intergovernmental and other relevant international bodies and international instruments.
7.5.2 Intergovernmental and Other Relevant International Bodies The main global intergovernmental organisations and bodies of relevance to this chapter are the United Nations General Assembly (UNGA) and the FAO. At the regional level, there are a number of RFMOs and bilateral or regional organisations/arrangements whose spatial scope overlaps to some extent with the Arctic marine area. These are: • the International Commission on the Conservation of Atlantic Tunas (ICCAT), established by the ICCAT Convention (International Convention [ICCAT Convention], 1966);15 • the bilateral (Canada and the United States) International Pacific Halibut Commission (IPHC), established by the IPHC Convention (Convention for the Preservation [IPHC Convention], 1953);16 • the bilateral (Russian Federation and the United States) Intergovernmental Consultative Committee (ICC), established by the Agreement on Mutual Fisheries Relations (Agreement between, 1988);17
15 International
Convention for the Conservation of Atlantic Tunas, Rio de Janeiro, 14 May 1966. In force 21 March 1969. 16 Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea, Ottawa, 2 March 1953. In force 28 October 1953. Exchange of Notes Constituting an Agreement to Amend the [IPHC Convention], Washington, 29 March 1979. In force 29 March 1979. 17 Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations, Moscow, 31 May 1988. In force 28 October 1988. The Agreement expires on 31 December 2008 but the United States will seek to
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• the Northwest Atlantic Fisheries Organization (NAFO), established by the NAFO Convention (Convention on Future [NAFO Convention], 1978).18 Its main regulatory body is the NAFO Fisheries Commission; • the North Atlantic Salmon Conservation Organization (NASCO), established by the NASCO Convention (Convention for the Conservation [NASCO Convention], 1982);19 • the North East Atlantic Fisheries Commission (NEAFC), established by the NEAFC Convention (Convention on Future [NEAFC Convention], 1980);20 • the North Pacific Anadromous Fish Commission (NPAFC), established by the NPAFC Convention (Convention for the Conservation [NPAFC Convention], 1992);21 • the Norway-Russian Federation Fisheries Commission, established by the 1975 Framework Agreement (Agreement between, 1975)22 and the trilateral Loophole Agreement and Protocols (Agreement between, 1999);23
extend it for another five years. The two states are currently engaged in negotiations to establish a comprehensive fisheries agreement for the Northern Bering Sea. At the 2007 ICC meeting, only three provisions of the draft agreement remained unresolved. The next ICC meeting is scheduled to take place in September 2008 (information obtained from www.nmfs.noaa.gov/ia/bilateral, visited 26 August 2008). 18 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Ottawa, 24 October 1978. In force 1 January 1979. 2007 Amendment, Lisbon, 28 September 2007. Not in force, NAFO/GC Doc. 07/4. The 2007 Amendment consists of eight articles which replace the title with “Convention on Cooperation in the Northwest Atlantic Fisheries” and the existing Preamble, Annexes and almost all provisions by new ones. 19 Convention for the Conservation of Salmon in the North Atlantic Ocean, Reykjavik, 2 March 1982. In force 1 October 1983. 20 Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, London, 18 November 1980. In force 17 March 1982. 2004 Amendments (Art. 18bis), London; 12 November 2004. Not in force, but provisionally applied by means of the ‘London Declaration’ of 18 November 2005. 2006 Amendments, London (Preamble, Arts 1, 2 and 4), 11 August 2006. Not in force, but provisionally applied by means of the ‘London Declaration’ of 18 November 2005 21 Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, Moscow, 11 February 1992. In force 16 February 1993. 22 Agreement between the Government of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, Moscow, 11 April 1975. In force 11 April 1975. See also Stokke (2001, p. 274). 23 Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries, St. Petersburg, 15 May 1999. In force 15 July 1999; Protocol between the Government of Iceland and the Government of the Russian Federation under the Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation concerning Certain Aspects of Co-operation in the Area of Fisheries St. Petersburg, 15 May 1999. In force 15 July 1999; and Protocol between the Government of Norway and the Government of Iceland under the Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation concerning Certain Aspects of Co-operation in the Area of Fisheries St. Petersburg, 15 May 1999. In force 15 July 1999.
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• the Western and Central Pacific Ocean Fisheries Commission (WCPFC), established by the WCPFC Convention (Convention on the Conservation [WCPFC Convention], 2000);24 • the Yukon River Panel of the bilateral (Canada and the United States) Pacific Salmon Commission (PSC), established by the Pacific Salmon Treaty (Treaty between, 1985);25 and • the annual Conference of Parties (CoP) to the CBS Convention (Convention on the Conservation [CBS Convention], 1994).26 Mention can also be made here of the currently ongoing negotiation process for the establishment of an RFMO in the Northwest Pacific.27 During the last meeting in that process in May 2008, the United States proposed to extend the spatial scope of the future RFMO to the entire North Pacific, but excluding inter alia the Bering Sea. As regards the Arctic Council, the main working groups of relevance to this chapter are the Conservation of Arctic Flora and Fauna (CAFF) and the Sustainable Development Working Group (SDWG). CAFF’s work is guided by the CAFF Strategic Plan for the Conservation of Arctic Biological Diversity and has five core objectives, namely • • • • •
Monitoring of Arctic biodiversity; Conservation of Arctic species and their habitats; Consider the establishment of protected areas; Conservation of nature outside protected areas; and Integration of conservation objectives and measures for economic sectors of the society; Finally, reference can be made to the following relevant international bodies:
• the OSPAR Commission established under the OSPAR Convention (Convention for the Protection [OSPAR Convention], 1992),28 in particular for its work under Annex IV on the assessment of the quality of the marine environment and under 24 Convention on the Conservation and Management of Highly Migratory Fish Stocks in the West-
ern and Central Pacific Ocean, Honolulu, 5 September 2000. In force 19 June 2004. 25 Treaty between the Government of Canada and the Government of the United States of America
Concerning Pacific Salmon, Ottawa, 28 January 1985. In force 18 March 1985. The Yukon River Panel was established by means of the Yukon River Salmon Agreement of December 2002, which amended the Pacific Salmon Treaty. 26 Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, Washington, 16 June 1994. In force 8 December 1995. 27 For some information see Molenaar (2007a, p. 124). 28 Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992. In force 25 March 1998. Annex V, Sintra, 23 September 1998. In force 30 August 2000.
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Annex V on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area; • various bodies established under the International Council for the Exploration of the Sea (ICES), in particular the Arctic Fisheries Working Group; • bodies established under the North Pacific Marine Science Organization (PICES);29 and • the International Arctic Science Committee (IASC).
7.5.3 International Instruments 7.5.3.1 Introduction As a point of departure, it should be noted that all the global legally binding and non-legally binding instruments related to fisheries conservation and management are also applicable to the Arctic marine area. The most important ones are: • • • •
the LOS Convention; the Fish Stocks Agreement; the FAO Compliance Agreement (Agreement to Promote, 1993);30 the FAO Code of Conduct for Responsible Fisheries (1995),31 and its Technical Guidelines, international plans of action (IPOAs) – for instance the IPOAIUU (International Plan [IPOA-IUU], 2001)32 – and the Model Scheme on PSM (2005);33 and • UNGA Resolutions, among other things on driftnets and destructive fishing practices.34
The subsections below will address in some more detail the LOS Convention, the Fish Stocks Agreement, constitutive instruments of RFMOs and Arrangements and their conservation and management measures, Arctic Council instruments and recent developments related to the Law of the Sea. Finally, for the sake of 29 For
information see North Pacific Marine Science Organisation at www.pices.int.
30 Agreement to Promote Compliance with International Conservation and Management Measures
by Fishing Vessels on the High Seas, Rome, 24 November 1993. In force 24 April 2003. by the Twenty-eight Session of the FAO Conference, Rome, 31 October 1995. 32 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. Adopted by consensus by FAO’s Committee on Fisheries on 2 March 2001 and endorsed by the FAO Council on 23 June 2001. 33 Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing endorsed by COFI at its 26th Session in March 2005. 34 See inter alia UNGA Resolution No. 61/105, of 8 December 2006, ‘Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments’, in particular paras 59 and 80–86. 31 Adopted
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completeness reference should be made here to the OSPAR Convention and the Treaty of Spitsbergen (1920). 7.5.3.2 LOS Convention In addition to acknowledging the sovereignty, sovereign rights and jurisdiction of coastal states over all or certain living resources within their maritime zones and the freedom of fishing of all states in the high seas, the LOS Convention lays down several basic obligations which restrict these entitlements. These are35 1. avoiding over-exploitation of target species by means of a. determining the TAC, inter alia, by taking account of i. dependent species (predator-prey relationships) and by-catch of associated species; ii. generally recommended minimum standards; b. using the best available scientific research available, where appropriate by cooperating within relevant international organisations; 2. avoiding or limiting by-catch of non-target species; 3. avoiding or limiting other impacts of fisheries on the marine ecosystem, for instance fragile ecosystems as well as the habitat of depleted, threatened or endangered species; 4. striving for the objective of maximum sustainable yield (MSY), except for marine mammals, sedentary species and species whose range of distribution does not extend seaward of the territorial sea; 5. cooperating in relation to transboundary stocks and discrete high seas stocks. The following different categories of transboundary stocks can be distinguished a. shared stocks: between the EEZs of two or more coastal states; b. straddling stocks: occurring within the EEZs of one or more coastal states and the high seas; c. highly migratory stocks: the species listed on Annex I to the LOS Convention (in particular tuna and tuna-like species); and d. anadromous (e.g., salmon) & catadromous (e.g., eel) stocks.
7.5.3.3 Fish Stocks Agreement The Fish Stocks Agreement is an Implementation Agreement of the LOS Convention and does not deal with all of the LOS Convention’s categories of stocks, but exclusively with straddling fish stocks and highly migratory fish stocks. Its objective is ‘to ensure the long-term conservation and sustainable use of straddling fish 35 See,
among other things, Articles 61–68, 116–120 and 194(5) of the LOS Convention (1982).
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stocks and highly migratory fish stocks’ (Fish Stocks Agreement, 1995, art. 2). Its scope of application encompasses not only areas beyond national jurisdiction but also areas within national jurisdiction (Ibid., art. 3). While the Fish Stock Agreement does not alter the basic jurisdictional framework of the LOS Convention,36 the basic provisions of the LOS Convention are broadened, strengthened and specified in more detail in the Fish Stocks Agreement in relation to straddling and highly migratory fish stocks. This includes the requirements to apply a precautionary approach and an ecosystem approach to fisheries,37 to protect biodiversity in the marine environment, the concept of compatibility, a variety of specific obligations for flag states, high seas enforcement powers for nonflag states and rights and obligations for port states. In contrast with the LOS Convention, the Fish Stocks Agreement regards RFMOs and Arrangements as the preferred vehicles for fisheries regulation at the regional level. It imposes obligations on States that are Parties to the Fish Stocks Agreement to cooperate through appropriate existing RFMOs and Arrangements. Of crucial importance in that regard is Article 8(4), which stipulates that access to fisheries is limited to cooperating states. Also new is the right in Article 8(3) of states with a ‘real interest’ to become members of RFMOs or participants in Arrangements. Arguably, the duty to cooperate with the relevant RFMO or Arrangement laid down in Article 8(3) is already part of customary international law and thereby entitles the relevant members or participants to take measures against (non-cooperating) non-members and non-participants that would otherwise be in violation of international law, for instance trade-related measures (Cf. United Nations General Assembly [UNGA], 2006a, para. 46). The practice of RFMOs on trade-related measures has at any rate not been challenged by means of the establishment of a dispute settlement procedure under the World Trade Organization. RFMOs and Arrangements are to be established where these do not exist (Cf. Fish Stocks Agreement, 1995, art. 8(5)). Moreover, as a consequence of in particular bottom-fisheries targeting deep-sea fish species – which are often discrete high seas fish stocks – there is broad support in the international community to ensure that all areas beyond national jurisdiction are covered by RFMOs or Arrangements. Such coverage would ensure that all target fisheries fall within the mandate of an RFMO or Arrangement. Moreover, these RFMOs or Arrangements need to have modern ecosystem-based fisheries management mandates that also allow them to address fisheries impacts on non-target species (including on benthic habitats) (UNGA, 2006a, para. 82). These developments have among other things led to the ‘filling’ of gaps in such coverage in the Southern Indian Ocean and the establishment of negotiation processes to fill gaps in the Southern Pacific and the Northern
36 Article
4 of the Fish Stocks Agreement stipulates that the Agreement “shall be interpreted and applied in the context of and in a manner consistent with the [LOS] Convention” (Fish Stocks Agreement, 1995, art. 4). 37 Even though this terminology is not explicitly used.
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or Northwest Pacific.38 Within the United States, these developments have led to the adoption of Senate joint resolution (SJ Res.) No. 17 of 2007 (see Section 7.6). The Agreement does not establish a regulatory body but provides for the convening of a review conference in its Article 36. While this was likely to have been envisaged as a one-off event, the Review Conference on the Fish Stocks Agreement that convened in May 2006 (Report of the Review, 2006, para. 43(d) at p. 39) was not formally closed and will resume in 2010. This may transform the review conference into a permanent or at least regularly recurring forum in which the implementation of the Fish Stocks Agreement and RFMOs and Arrangements can be discussed and where recommendations can be made to improve such implementation. The non-applicability of the Fish Stocks Agreement to stocks other than straddling and highly migratory fish stocks came in particular to the fore as a consequence of bottom-fisheries targeting deep-sea fish species – which are often discrete high seas fish stocks. It has been proposed that a legally binding instrument is needed to address this gap.39 So far, however, there is not much more than the following operative paragraph in a UNGA Resolution, which reads: Calls upon all States, directly or through regional fisheries management organizations and arrangements, to apply widely, in accordance with international law and the Code, [footnote omitted] the precautionary approach and an ecosystem approach to the conservation, management and exploitation of fish stocks, including straddling fish stocks, highly migratory fish stocks and discrete high seas fish stocks, and also calls upon States parties to the Agreement to implement fully the provisions of article 6 of the Agreement as a matter of priority; (UNGA, 2006a, para. 5).
While this paragraph applies in principle to all fish stocks, its purpose seems mainly aimed at singling out discrete high seas fish stocks. In the Arctic context, however, new fishing opportunities are also likely to relate to shared and anadromous fish stocks. The non-applicability of the Fish Stocks Agreement to these fish stocks would mean that only the relatively general obligations contained in the LOS Convention apply. 7.5.3.4 Constitutive Instruments of RFMOs and Arrangements and Their Conservation and Management Measures This subsection deals with multilateral fisheries conservation and management.40 An important first distinction is between multilateral fisheries conservation and management that applies explicitly to the Arctic marine area and that which applies implicitly or less explicitly to the Arctic marine area. The latter category consists of two examples, namely the WCPFC and the ICCAT. The WCPFC Convention Area ‘comprises all waters of the Pacific Ocean’, but does not have an
38 For
an overview see Molenaar (2007a, p. 124). See also the overview of gaps in Gjerde (2008b, pp. 5–6). 39 See, inter alia, Molenaar (2007a, pp. 129–133). 40 For national fisheries conservation and management see Section 7.6.
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agreed northern boundary (WCPFC Convention, 2000, art. 3(1)). That means that the Bering Sea would come within the scope of the WCPFC, provided tuna or tunalike species within its mandate occur therein. The ICCAT Convention Area consists of the ‘waters of the Atlantic Ocean, including the adjacent Seas’ (ICCAT Convention, 1966, art. 1). It is very likely that its negotiators had the Mediterranean and Caribbean Seas, but not the Arctic Sea, in mind when agreeing on this phrase. Nevertheless, as there is no agreed definition for, or northern limit of, the Atlantic Ocean, ICCAT may in principle have competence within the entire FAO Statistical Area No. 18, with regard to the tuna and tuna-like species within its competence. It should be noted, however, that the occurrence of tuna or tuna like species is currently and in the near future likely to be confined to the most southern parts of the Arctic marine area. Occurrence in the Arctic Ocean will be even further ahead in the future. The regulatory areas of all the other RFMOs and Arrangements listed in Section 7.5.2 apply explicitly to part of the Arctic marine area. Moreover, NEAFC does not exercise its full competence with regard to the Loophole, which is governed by the Norway-Russian Federation Fisheries Commission and the Loophole Agreement and Protocols. Whereas the main focus of the latter is on demersal species, the main focus of NEAFC is on pelagic and deep-sea fisheries. It may of course be possible that NEAFC will actually also exercise species competence in the Loophole in the future, for instance if a fishery for one or more pelagic species in the Loophole would become commercially viable.41 As regards the NASCO Convention, pursuant to Article 1(1) it ‘applies to the salmon stocks which migrate beyond areas of fisheries jurisdiction of coastal states of the Atlantic Ocean north of 36◦ N latitude throughout their migratory range.’ In the absence of an agreed definition for, or northern limit of, the Atlantic Ocean, it seems possible for NASCO to exercise competence over salmon in the entire FAO Statistical Area No. 18.42 As regards the Bering Sea, the overview above indicates that it is explicitly covered by at least four multilateral regimes in addition to the WCPFC Convention. While these regimes all focus on a single species or a single group of species (anadromous), it should be noted that the CBS Convention can also be applied to ‘living marine resources other than Pollock’ (CBS Convention, 1994, art. II(4)). The content of all these constitutive instruments varies considerably and in the context of this chapter it is not possible – and arguably also not necessary – to examine it in depth. Among other things, the older instruments are relatively concise and simple and the newer ones much more extensive and complex, largely as a consequence of the progressive development of international fisheries law. 41 It
should be noted, however, that the provisions in the NEAFC Scheme of Control and Enforcement (in force 1 May 2008) on ‘Port State Control of Foreign Fishing Vessels’ are made applicable to the NEAFC Convention Area by Article 20 and thereby also the area covered by the NorwayRussian Federation Fisheries Commission and the Loophole Agreement and Protocols. 42 This may nevertheless require adjustment of the spatial scope and composition of NASCO Commissions.
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The substantive standards of these RFMOs and Arrangements are in most cases laid down in conservation and management measures that are adopted or revised during periodic meetings.43 As a consequence of the growing crisis in marine capture fisheries globally, both as regards over-exploitation of target species and the impacts on non-target species, processes have been set in motion to upgrade the constitutive instruments of these RFMOs and Arrangements to enable them to carry out the objectives of the Fish Stocks Agreement in light of the functions of RFMOs pursuant to Article 10 of the Fish Stocks Agreement. These processes are, to put it differently, aimed at making them ‘compatible’ with the Fish Stocks Agreement and other modern international instruments. The upgrades are among other things aimed at replacing older mandates with EAF mandates. In addition, several RFMOs have agreed to having their performance assessed.44 7.5.3.5 Arctic Council Instruments The Arctic Council has so far not focused on the conservation and management of target species and can also not be equated with an RFMO or Arrangement.45 However, especially CAFF has been and still is engaged in various important monitoring and assessment activities, such as Circumpolar Biodiversity Monitoring Program and the Arctic Biodiversity Assessment.46 These would seem very useful for international fisheries conservation and management. 7.5.3.6 Recent Developments Related to the Law of the Sea The LOS Convention was adopted more than 25 years ago and many of the provisions that are relevant to this chapter already received very broad support several years prior thereto. The mere existence of its two implementation agreements already shows that the international community was prepared to address what it perceived to be as gaps at the time. Recent undertakings within the framework of
43 In
the case of the Norway-Russian Federation Fisheries Commission these are to a large extent laid down in the so-called ‘Grey Zone Agreement’ (Avtale mellom, 1978) (original title: Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning for fisket i et tilstøtende omr˚ade i Barentshavet med tilhørende protokoll og erklæring, translated to “Agreement between Norway and the Soviet Union on a temporary and practical arrangement for the fishery in an adjacent area of the Barents Sea”). This is a temporary agreement first adopted in 1978 and renewed annually since then. 44 The first performance assessment of an RFMO related to NEAFC. 45 Note that most Members of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) (Convention on the Conservation [CCAMLR Convention], 1980) – which is part of the Antarctic Treaty system – do not regard CCAMLR as an RFMO. However, most take the view that CCAMLR is ‘something more than an RFMO’. 46 For information see Conservation of Arctic Flora and Fauna website. See also Koivurova and VanderZwaag (2007, pp. 147–149).
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the UNGA and the CBD (Convention on the Biological [CBD], 1992)47 address newly perceived gaps in relation to marine biodiversity in areas beyond national jurisdiction. As regards the UNGA, it established the United Nations Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (UNWG BBNJ) in 2004. So far, the UNWG BBNJ convened twice: in 2006 and in 2008.48 While there was no negotiated outcome of the 2nd Meeting of the UNWG BBNJ, attention should be drawn to some of the issues selected by the Co-chairpersons as issues which the UNGA may decide as suitable for consideration by a next meeting of the UNWG BBNJ, namely: (a) [. . .] (b) The strengthening of cooperation and coordination at all levels and across all sectors, including enhanced cooperation in capacity-building for developing countries; (c) The development and implementation of effective [environmental impact assessment (EIA)] as a tool for improving ocean management; (d) Development and use of [area-based management tools (ABMTs)], including designation, management, monitoring and enforcement, consistent with [the LOS Convention]; (Joint statement, 2008, para. 54 at p. 12) Arguably, the reason why the Co-Chairpersons selected these issues is their perception that many states regard them as gaps in the current international law of the sea, despite disagreement on the solutions to address these gaps. Issues (b) and (d), read in conjunction, could be interpreted as support for integrated cross-sectoral ecosystem-based management, operationalized by among other things spatial measures or tools (e.g., marine protected areas (MPAs)). Such support has also been expressed by the UNGA in its 2006 and 2007 Resolutions on Oceans and the law of the sea (UNGA, 2006b, para. 119; 2007, para. 99). As regards the CBD, mention can be made of efforts in relation to MPAs in areas beyond national jurisdiction and, more recently, on EIAs and strategic environmental assessments (SEAs) in relation to unregulated activities in areas beyond national jurisdiction. The 9th Conference of the Parties (CoP) to the CBD in May 2008 • adopted scientific criteria for identifying areas in need of protection in open ocean waters and deep sea habitats as well as scientific guidance for designing a representative network of marine protected areas; • agreed to convene an expert workshop that will provide guidance to Parties and the United Nations on identifying important areas that need protection in areas
47 Convention 48 See
on Biological Diversity, Nairobi, 22 May 1992. In force 29 December 1993. also Gjerde (2008a, 2008b).
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beyond national jurisdiction as well as on the use and further development of biogeographic classification systems; and • decided to develop scientific guidance for environmental impact assessments and strategic environmental assessment of activities which may have a significant adverse impact on marine biodiversity beyond national jurisdiction.49 Finally, it is submitted that a fundamental regulatory and governance gap in the current international law of the sea relates to mechanisms that safeguard the interests of non-user states or the international community as a whole in the protection and preservation of the marine environment and marine biodiversity.50 Spatial gaps in the coverage of the world’s seas and oceans by regional environmental protection regimes51 and RFMOs and Arrangements undermine these interests. While there are a few relevant international instruments that allow for the participation of non-user states,52 these do not seem to have led to a satisfactory balance between socio-economic interests and the above mentioned interests for present and future generations. However, particular account should in this context be taken of the innovative approach by the UNGA in relation to the impact of bottom fisheries on vulnerable marine ecosystems (UNGA, 2006a, paras. 83–87). The main elements of this approach are • conducting prior EIAs; • identifying the location of vulnerable marine ecosystems; • freezing the footprint of bottom fishing in areas where vulnerable marine ecosystems are known to occur or likely to occur, until adequate conservation and management measures are in place; and • making actions taken pursuant to these elements publicly available. These elements essentially operationalize the precautionary approach, the need for science-based fisheries management and accountability. Subsequently, they are made applicable to three different scenarios, namely (1) areas covered by existing RFMOs or Arrangements, (2) areas covered by negotiation processes to establish RFMOs or Arrangements and (3) areas beyond national jurisdiction not covered by existing RFMOs or Arrangement or negotiation processes to establish them. Unfor49 As
contained in the Decision ‘on Marine and Coastal Biodiversity’ (information provided by K.M. Gjerde to E.J. Molenaar); see also the draft decision incorporated in ‘Draft Decisions for the Ninth Meeting of the Conference of the Parties to the Convention on Biological Diversity’ (2008, pp. 126–135). 50 For a discussion see Molenaar (2007b. pp. 108–110). 51 See the overview of gaps in Gjerde (2008b, pp. 5–6), which, it should be emphasized, all relate to areas beyond national jurisdiction. 52 Notably the ICRW (International Convention for the Regulation of Whaling), Washington D.C., 2 December 1946. In force 10 November 1948; the 1958 Fisheries Convention (Convention on Fishing, 1958), and the CCAMLR Convention (1980).
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tunately, however, only the first two scenarios are subject to deadlines. But the mere possibility that the UNGA would adopt non-legally binding restrictions on bottom fisheries in areas beyond national jurisdiction is likely to have been the main driver for the establishment of the negotiation process in the Northwest Pacific.53 Or, in other words, regional action to pre-empt global action. These actions by the UNGA are clearly aimed at safeguarding the interests of the international community in light of the inability or unwillingness of states to discharge their obligations to cooperate at the regional level.
7.6 National Regulation Within the context of this chapter it is not possible to give a comprehensive overview of national regulation by Arctic states on the conservation and management of target species and the regulation of the impacts of fishing on non-target species within the Arctic marine area. In some parts of the Arctic marine area, for instance the North Atlantic, national regulation is expected to be extensive and relate to all or most of the relevant capacities in which states can exercise jurisdiction, namely as flag, coastal, port and market states and with regard to their natural and legal persons. For other parts of the Arctic marine area, however, the presence of ice for most of the year has so far rendered national fisheries regulation for those areas unnecessary. But as diminishing ice-coverage will attract fishing vessels looking for possible new fishing opportunities, Arctic states will be required to develop national regulation in order to discharge their obligations under international law, including those under the LOS Convention and the Fish Stocks Agreement. The United States is currently engaged in this process with regard to fishing in the maritime zones off Alaska north of the Bering Strait. In the United States, competence over fisheries is shared by the individual states (in this case Alaska) within 3 n.m. from shore and the federal government in the remainder of the United States maritime zones. The North Pacific Fishery Management Council (NPFMC) plays a key role in federal regulation with regard to the maritime zones of the United States in the North Pacific. The NPFMC has adopted various fishery management plans (FMPs) that apply as far north as the Bering Strait and its King and Tanner Crab and Scallop FMPs also apply to that part of the Chukchi Sea that lies between the Bering Strait and Point Hope. In June 2007, the NPFMC closed the Northern Bering Sea to bottom trawling and directed a research plan to be developed for that area (News and Notes, 2007).54 Also, the NPFMC is currently developing a comprehensive Arctic FMP which may be adopted in December 2008 (Council Motion, 2008) and may become effective in 2009 or 2010. Until then, the state of Alaska could intervene on behalf of the federal state to regulate or prohibit (commercial) fishing in the EEZ off Alaska.
53 See 54 See
supra note 38 and accompanying text. also Wilson (2007).
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As some of the fish stocks in the EEZ off Alaska are likely to be transboundary, reference should be made to the United States Senate joint resolution (SJ Res.) No. 17 of 2007, ‘directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean’ (United States Senate, 2007).55 The House of Representatives voted in favour of SJ Res. No. 17 in May 2008 and the President signed it on 4 June 2008. The current United States Administration has so far informed Canada and the Russian Federation of SJ Res. No. 17 of 2007 and has expressed its willingness to engage in exploratory talks on the issue. The United States also brought SJ Res. No. 17 of 2007 to the attention of SAOs during their meeting in November 2007. During the discussion that followed there was ‘strong support for building on and considering this issue within the context of existing mechanisms’ (Final Report, 2007, p. 12). This would seem to indicate that a considerable majority of the Arctic states does not want the Arctic Council to become directly involved in fisheries management and conservation. Finally, mention should be made of fisheries conservation and management in the fisheries protection zone established by Norway off Svalbard. This fisheries conservation and management can be categorised as unilateral, even though Norway allocates fishing opportunities for certain species to some contracting parties to the Treaty of Spitsbergen.
7.7 Gaps in the International Legal and Policy Framework and National Regulation and Options for Addressing Them 7.7.1 Introduction This subsection will try to identify gaps in the international legal and policy framework and national regulation relating to marine capture fisheries in the Arctic in light of current and future threats to the Arctic marine ecosystem and the current body of relevant rules of international law and relevant non-legally binding commitments by Arctic and non-Arctic states.
7.7.2 Gaps Even though all the global intergovernmental organisations, bodies and legally binding and non-legally binding instruments related to fisheries conservation and management are also applicable to the Arctic marine area, a large part of the Arctic marine area is not covered by an RFMO or Arrangement with competence over target species other than tuna and tuna-like species and anadromous species. The Arctic Council has so far not focused on the conservation and management of target species 55 Passed
by the Senate on 4 October 2007.
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and also lacks any express mandate for conserving or managing Arctic fisheries. The Arctic Council can at any rate not be equated with an RFMO or Arrangement. The above conclusion assumes that the Bering Sea would come within the scope of the WCPFC and that ICCAT and NASCO may in principle have competence within the entire FAO Statistical Area No. 18. The applicability of these global instruments to the Arctic marine area also means that their shortcomings apply as well, for instance the non-applicability of the Fish Stocks Agreement to other fish stocks than straddling and highly migratory fish stocks. This is relevant for the Arctic context as new fishing opportunities are also likely to relate to shared and anadromous fish stocks. Moreover, the discussion on recent developments related to the Law of the Sea in Section 7.5.3 has identified several gaps that should also be taken into account. In some parts of the Arctic marine area, the presence of ice for most of the year has up until now rendered national fisheries regulation unnecessary. However, as diminishing ice-coverage will attract fishing vessels looking for possible new fishing opportunities, Arctic states will have to develop national regulation in order to discharge their obligations under international law. Another gap relates to science and data. The complexity of the functioning of Arctic marine ecosystems as well as the limitations and shortcomings of science were noted in the ACIA.56 It is most likely that a lot of data required for pursuing an EAF is presently also not available. Fortunately, these aspects played a crucial role in the development of the Arctic FMP within the NPFMC.
7.7.3 Options This subsection contains various options for adjusting the current international legal framework relating to fisheries in the Arctic marine area in case such adjustments are regarded as necessary in view of current or future threats of fisheries to the marine environment and marine biodiversity in the Arctic marine area. An assessment of the need for such adjustments should start with the development of future scenarios about areas, dates, species, fishing techniques for which new fishing opportunities are likely to arise and potential impacts for non-target species. It may for instance reveal that new fishing opportunities in the Pacific side of the Arctic Ocean will be mainly located in the maritime zones of coastal states for a considerable time, whereas fishing opportunities in the Atlantic side may much sooner also encompass the high seas that were not fished before. Such an assessment could be carried out in the framework of the Arctic Council (e.g., through CAFF) or independently. In view of the discussion at the meeting of SAOs in November 2007, there is currently considerable opposition within the membership of the Arctic Council against it becoming actively involved in fisheries management and conservation. 56 See
Section 7.2.
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This opposition is likely to mean that the Arctic Council may not be used as a forum for discussing the options identified in this subsection, let alone be used as a forum for negotiating a legally binding or non-legally binding instrument on Arctic fisheries conservation and management. In addition to ensuring the availability of relevant scientific data, inter alia by developing the scenarios mentioned above, the following options can be identified • individual action by Arctic Ocean coastal states and other states in their capacities as flag, coastal, port and market states and with regard to their natural and legal persons; • bilateral or subregional arrangements between the relevant Arctic Ocean coastal states on the conservation and management of shared fish stocks; • a declaration by which the main relevant general principles of the Fish Stocks Agreement, the recent UNGA Resolutions in relation to vulnerable marine ecosystems and destructive fishing practices and relevant conservation and management measures drawn from RFMOs are made applicable to new fisheries in the Arctic marine area. In particular, this declaration could stipulate that there shall be no new fisheries until adequate assessments of their potential impacts on target and non-target species and livelihoods of indigenous peoples are carried out; • mechanisms or procedures similar to an EIA and/or a SEA for new fisheries in the Arctic marine area; and • one or more state-of-the-art RFMOs or Arrangements. These could be selfstanding or part of a legally binding framework instrument for the Arctic which pursues integrated cross-sectoral ecosystem-based management and may have to be accompanied by adjustments in the competence of existence RFMOs or Arrangements, in particular in geographical terms. In considering these and other options, Arctic states and other states may wish to pursue the same pro-active approach that led to the negotiations of the main instruments of the Antarctic Treaty system, which took place prior to the start of various commercial activities.
References Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries, St. Petersburg, 15 May 1999. In force 15 July 1999. 41 Law of the Sea Bulletin, 53 (1999). Agreement between the Government of Norway and the Government of the Union of Soviet Socialist Republics on Co-operation in the Fishing Industry, Moscow, 11 April 1975. In force 11 April 1975. 983 United Nations Treaty Series, 7(1975). Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations, Moscow, 31 May 1988. In force 28 October 1988. Treaties and other International Acts Series, 11, 422. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling
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Fish Stocks and Highly Migratory Fish Stocks, New York, 4 August 1995. In force 11 December 2001. 34 I.L.M, 1542 (1995). Retrieved August 4, 2008, from www.un.org/Depts/los. The Agreement on the European Economic Area, Brussels, 17 March 1993. In force 1 January 1994. Official Journal L 001. Retrieved August 4, 2008, from www.efta.int. Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, New York, 28 July 1994. In force 28 July 1996. 33 I.L.M., 1309 (1994). Retrieved August 4, 2008, from www.un.org/Depts/los. Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Rome, 24 November 1993. In force 24 April 2003. 33 I.L.M., 969 (1994). Retrieved July 20, 2008, from www.fao.org/legal. Arctic Climate Impact Assessment (ACIA). (2004). Overview Report. Retrieved August 4, 2008, from www.acia.uaf.edu. Arctic Climate Impact Assessment (ACIA). (2005). Scientific Report. Retrieved August 4, 2008, from www.acia.uaf.edu. Arctic ice retreating more quickly than computer models project. (2007, April 30). NCAR News Release. Retrieved August 4, 2008, from www.ucar.edu/news/releases/2007/seaice.shtml. Arctic sea ice news and analyses. (n.d.). National snow and ice data centre. Retrieved August 4, 2008, from nsidc.org/arcticseaicenews. Avtale mellom Norge og Sovjetunionen om en midlertidig praktisk ordning for fisket i et tilstøtende omr˚ade i Barentshavet med tilhørende protokoll og erklæring [Agreement between Norway and the Soviet Union on a temporary and practical arrangement for the fishery in an adjacent area of the Barents Sea]. Norwegian treaty Series: Overenskomster (1978), 436. Conservation of Arctic Flora and Fauna (CAFF) Retrieved August 4, 2008 from arcticportal.org/en/caff.. Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (NPAFC), Moscow, 11 February 1992. In force 16 February 1993. Convention for the Conservation of Salmon in the North Atlantic Ocean (NASCO), Reykjavik, 2 March 1982. In force 1 October 1983. 1338 U.N.T.S., 33. Retrieved August 4, 2008, from www.nasco.int. Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea (IPHC Convention), Ottawa, 2 March 1953. In force 28 October 1953. 222 United Nations Treaty Series, 78 (1955). Exchange of Notes Constituting an Agreement to Amend the [IPHC Convention], Washington, 29 March 1979. In force 29 March 1979. 1168 U.N.T.S., 380 (1980). Convention for the Protection of the Marine Environment of the North-East Atlantic, Paris, 22 September 1992. In force 25 March 1998. Annex V, Sintra, 23 September 1998. In force 30 August 2000. Both retrieved July 20, 2008, from www.ospar.org. Convention on Biological Diversity, Nairobi, 22 May 1992. In force 29 December 1993. 31 I.L.M., 822 (1992). Retrieved August 4, 2008, from www.biodiv.org. Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WPCPFC), Honolulu, 5 September 2000. In force 19 June 2004. 40 I.L.M., 277 (2001). Retrieved August 4, 2008, from www.wcpfc.int. Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (CBS Convention), Washington, 16 June 1994. In force 8 December 1995. 34 I.L.M., 67 (1995). Retrieved August 4, 2008, from www.afsc.noaa.gov/refm/cbs. Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR Convention), Canberra, 20 May 1980. In force 7 April 1982. 19 I.L.M., 837 (1980). Retrieved August 4, 2008, from www.ccamlr.org. Convention on Fishing and Conservation of the Living Resources of the High Seas, Geneva, 29 April 1958. In force 20 March 1966. 559 U.N.T.S., 285. Retrieved August 4, 2008, from www.un.org/law/ilc. Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (NEAFC), London, 18 November 1980. In force 17 March 1982. 1285 U.N.T.S., 129. Retrieved August 4, 2008, from www.neafc.org. (2004 Amendments: (Art. 18bis), London; 12 November 2004.
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Not in force, but provisionally applied by means of the ‘London Declaration’ of 18 November 2005). Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (NEAFC), London, 18 November 1980. In force 17 March 1982. 1285 U.N.T.S., 129. Retrieved August 4, 2008, from www.neafc.org. (2006 Amendments: (Preamble, Arts 1, 2 and 4), London, 11 August 2006. Not in force, but provisionally applied by means of the ‘London Declaration’ of 18 November 2005). Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (NAFO Convention), Ottawa, 24 October 1978. In force 1 January 1979. NAFO/GC Doc. (2007 Amendment, Lisbon, 28 September 2007. Not in force. NAFO/GC Doc. 07/4). Council Motion, Arctic Fishery Management Plan. (2008, June). The North Pacific Fishery Management Council. Retrieved August 4, 2008, from http://www.fakr.noaa.gov/ npfmc/current issues/Arctic/ArcticFMPmotion608.pdf. Draft Decisions for the Ninth Meeting of the Conference of the Parties to the Convention on Biological Diversity. (2008, May 5). Doc. UNEP/CBD/COP/9/1/Add.2. FAO Code of Conduct for Responsible Fisheries. (1995, October 31) 28th Session of the FAO Conference, Rome. Retrieved August 4, 2008, from www.fao.org/fi. Final Report. (2007). Meeting of Senior Arctic Officials. 28–29 November 2007, Narvik. Retrieved August 4, 2008, from www.arctic-council.org. Food and Agriculture Organisation (FAO). (2003). FAO technical guidelines for responsible fisheries. No. 4. Suppl. 2. Rome. Gjerde, K.M. (2008a). Options for addressing regulatory and governance gaps in the international regime for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. IUCN Marine Law and Policy Paper, No. 2. Retrieved August 4, 2008, from cms.iucn.org. Gjerde, K.M. (2008b). Regulatory and governance gaps in the international regime for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction. IUCN Marine Law and Policy Paper, No. 1. Retrieved August 4, 2008, from cms.iucn.org. The Ilulissat Declaration. (2008, May 28). Arctic Ocean Conference. Ilulissat, Greenland, 27–29 May 2008. Retrieved August 4, 2008, from http://uk.nanoq.gl/Emner/News/ News from Parliament/2008/05/˜/media/66562304FA464945BB621411BFFB6E12.ashx. International Convention for the Conservation of Atlantic Tunas (ICCAT), Rio de Janeiro, 14 May 1966. In force 21 March 1969. U.N.T.S. 9587 (1969). Retrieved August 4, 2008, from www.iccat.int. International Convention for the Regulation of Whaling, Washington D.C., 2 December 1946. In force 10 November 1948. 161 United Nations Treaty Series, 72. Retrieved August 4, 2008, from www.iwcoffice.org. International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. (2001). Adopted by the FAO Committee on Fisheries on 2 March 2001. Endorsed by the FAO Council on 23 June 2001. Retrieved August 4, 2008, from www.fao.org/fi. Joint statement of the co-chairpersons of the ad hoc open-ended informal working group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. (2008, May 15). UN Ad Hoc Open-ended Informal working group. Retrieved August 4, 2008, from http://www.un.org/Depts/los/biodiversityworkinggroup/ biodiversityworkinggroup.htm. Koivurova T., & VanderZwaag, D. L. (2007). The Arctic Council at 10 Years: Retrospects and prospects. University of British Columbia Law Review, 40, 121–194. McDorman, T. L. (2000). Global ocean governance and international adjudicative dispute resolution. Ocean and Coastal Management, 43, 255–275. Model scheme on port state measures to combat illegal, unreported and unregulated fishing. (2005, March). The 26th Session of the Committee on Fisheries (COFI). Molenaar, E. J. (2007a). Current legal and institutional issues relating to the conservation and management of high seas deep sea fisheries. In Report and documentation of the expert consultation
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on deep-sea fisheries in the high seas, Bangkok, Thailand, 21–23 November 2006. FAO Fisheries Report No. 838. Molenaar, E. J. (2007b). Managing biodiversity in areas beyond national jurisdiction. International Journal of Marine and Coastal Law, 21, 89–124. News and Notes. (2007, June). North Pacific Fishery Management Council. Retrieved August 4, 2008, from fakr.noaa.gov/npfmc. North-East Atlantic Fisheries Commission (NEAFC) Retrieved August 4, 2008 from www.neafc.org.. North Pacific Marine Science Organisation website. Retrieved August 4, 2008 from www.pices.int.. Oceans and the Law of the Sea. UN Division vision for Ocean Affairs and the Law of the Sea website. Retrieved August 4, 2008 from www.un.org/Depts/los. Oude Elferink, A. G., & Rothwell, D. R. (Eds). (2001). The law of the sea and polar maritime delimitation and jurisdiction. The Hague: Martinus Nijhoff Publishers. Protocol between the Government of Iceland and the Government of the Russian Federation under the Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation concerning Certain Aspects of Co-operation in the Area of Fisheries St. Petersburg, 15 May 1999. In force 15 July 1999. 14 International Journal of Marine and Coastal Law, 488–490 (1999). Retrieved August 4, 2008, from faolex.fao.org. Protocol between the Government of Norway and the Government of Iceland under the Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation concerning Certain Aspects of Co-operation in the Area of Fisheries St. Petersburg, 15 May 1999. In force 15 July 1999. 41 Law of the Sea Bulletin, 56 (1999). Retrieved August 4, 2008, from faolex.fao.org. Report of the Review Conference on the Fish Stocks Agreement. (2006, July 5). UN Doc. A/CONF.210/2006/15. Stokke, O. S. (2000). The Loophole of the Barents Sea Fisheries Regime. In O. S. Stokke (Ed.), Governing high seas fisheries: The interplay of global and regional regimes. Oxford: Oxford University Press. Treaty between the Government of Canada and the Government of the United States of America Concerning Pacific Salmon, Ottawa, 28 January 1985. In force 18 March 1985. Retrieved August 4, 2008, from www.psc.org. Treaty on the Status of Spitsbergen (Svalbard Treaty). Paris, 9 February 1920. In force 14 August 1925. 2 League of Nations Treaty Series 8. Reproduced in Vol. 18 of the American Journal of International Law, Suppl., 1924, 199–208. United Nations Convention on the Law of the Sea (LOS Convention). Montego Bay, 10 December 1982. In force 16 November 1994. 1833 U.N.T.S., 396. Retrieved August 4, 2008, from www.un.org/Depts/los. United Nations General Assembly (UNGA). (2006a, December 8). Resolution No. 61/105. Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments. United Nations General Assembly (UNGA). (2006b, December 20). Resolution No. 61/222. Oceans and the law of the sea. United Nations General Assembly (UNGA). (2007, December 22). Resolution No. 62/215. Oceans and the law of the sea. United States Senate. (2007). Joint resolution (SJ Res.) No. 17 of 2007, directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean. Passed by the Senate on 4 October 2007. Wilson, B. (2007, May). Fishery management options for the Alaskan EEZ in the Chukchi and Beaufort Seas of the Arctic Ocean – A revised discussion paper. Retrieved August 4, 2008, from www.fakr.noaa.gov/npfmc.
Chapter 8
World Heritage Convention, Climate Change and the Arctic Lotta Viikari
Abstract This chapter examines the role of the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention Concerning the Protection of the World Cultural and Natural Heritage (hereinafter the “World Heritage Convention” or “WHC”) in the Arctic, in the light of global warming. It first sketches out the system of the WHC in general, including its structure, general obligations, and the process by which world heritage is identified and nominated. It then discusses some challenges the World Heritage system is currently facing: the imbalance of the World Heritage List, competing interests regarding world heritage, and climate change. The last and most extensive part of the chapter concentrates on the focal topic of this study, the World Heritage Convention in the Arctic. It introduces the current role of the convention in this region and examines the specific impacts climate change can have on Arctic world heritage. Finally, the future prospects of the WHC in the Arctic are assessed, with particular reference to the warming climate.
8.1 World Heritage Convention System 8.1.1 Structure The aim of the World Heritage Convention (Convention Concerning, 1972) is to establish and maintain an international system to protect the cultural and natural heritage of the world. The WHC has a total of 185 Parties, i.e., virtually all states have adhered to the convention. It is one of the most widely ratified environmental agreements today. The World Heritage Convention establishes the World Heritage List (World Heritage List, n.d.) and defines natural and cultural properties which can be considered
L. Viikari (B) Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, 96101 Rovaniemi, Finland e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 8,
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for inscription on the list. Pursuant to the convention, cultural heritage can be monuments or groups of buildings “which are of outstanding universal value from the point of view of history, art or science”, or “works of man or the combined works of nature and man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological point of view” (Art. 1).1
Natural heritage means “natural features consisting of physical and biological formations . . . which are of outstanding universal value from the aesthetic or scientific point of view”; “geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species . . . of outstanding universal value from the point of view of science or conservation”; and “natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty” (Art. 2).2
Parties to the WHC are required to pass properties listed under the convention intact to generations to come; as the World Heritage Committee has stated, “[t]he properties on the World Heritage List are assets held in trust to pass on to generations of the future as their rightful inheritance” (Budapest Declaration, 2002, para. 2). Properties can be included in the World Heritage List if they meet the criteria of “outstanding universal value” and at least one out of ten selection criteria3 explained in the Operational Guidelines for the Implementation of the World Heritage Convention (hereinafter the “Operational Guidelines”) (Operational Guidelines, 2008). The selection criteria are regularly revised by the Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage (hereinafter the “World Heritage Committee”).4 All World Heritage properties must also satisfy the conditions of integrity, which is “a measure of the wholeness and intactness of the natural and/or cultural heritage and its attributes” (Operational Guidelines, para. 88).5 If the World Heritage Committee decides that a property should be inscribed on the World Heritage List, it adopts for it a Statement of Outstanding Universal Value
1 For
a more detailed, recent treatment of the definition of cultural heritage and its development within the WHC system, see Yusuf (2008). 2 For a more detailed, recent treatment of the definition of natural heritage and its development within the WHC system, see Redgwell (2008). 3 Earlier, World Heritage sites were selected on the basis of six cultural and four natural criteria. Since 2005, only one set of ten criteria has been applied. For information about the development of the application of the World Heritage criteria, see Session reports: 31st Session (2007, Item 9, pp. 9–16). 4 The first Operational Guidelines are from 1977; the latest version has been in force since January 2008. For the historical development and different versions of the Operational Guidelines, see http://whc.unesco.org/en/guidelines. The revisions have mostly reflected the development of the concept of outstanding universal value (Session reports: 31st Session, 2007, Item 9, p. 4). 5 For more detailed criteria for evaluating “integrity”, see Operational Guidelines, Section II.E (paras. 87–95). Additionally, properties nominated under criteria i-vi must meet the conditions of “authenticity”, which is defined in more detail in paras. 79–86.
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which forms the basis for the protection and management of the property (Operational Guidelines, para. 154).6 The meaning of “outstanding universal value” has been debated over the years. Because of the great diversity of the heritage of humankind, defining qualities that are of outstanding universal value can be difficult. Natural beauty, for example, is a subjective, social construct for which there exists no universal classification system (Redgwell, 2008, p. 73).7 It has been proposed that the World Heritage value of properties should thus be assessed in a regional context instead of on the basis of a “universal” evaluation (Session reports: 22nd Session, 1998, p. 7). On the other hand, the Operational Guidelines expressly state that the WHC “is not intended to ensure the protection of all properties of great interest, importance or value, but only for a select list of the most outstanding of these from an international viewpoint. It is not to be assumed that a property of national and/or regional importance will automatically be inscribed on the World Heritage List” (para. 52, emphasis added). Accordingly, “[o]utstanding universal value means cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity” (para. 49).8 Hence a primarily regional approach in the evaluation of outstanding universal value does not seem appropriate or even feasible.9 Furthermore, the WHC asks each state to submit to the World Heritage Committee an inventory of properties situated in its territory which it considers as suitable candidates for inscription on the World Heritage List (Art. 11.1). These inventories form the Tentative Lists of states.10 The prior inclusion of a property on a state’s
6 The
Statement of Outstanding Universal Value “should include a summary of the Committee’s determination that the property has outstanding universal value, identifying the criteria under which the property was inscribed, including the assessments of the conditions of integrity or authenticity, and of the requirements for protection and management in force” (Operational Guidelines, para. 155). 7 Accordingly, it has been suggested that the criteria of natural beauty in the WHC system should not be used alone but only in conjunction with other criteria (Session reports: 22nd Session, 1998, p. 7). At the moment, the relevant selection criterion is number vii: “to contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance”. The present version of the previous criterion, number vi (“be directly or tangibly associated with events or living traditions, with ideas, or with beliefs, with artistic and literary works of outstanding universal significance”), already states that it should “preferably be used in conjunction with other criteria” (Operational Guidelines, para. 77). 8 For more detailed criteria for evaluating “outstanding universal value”, see Operational Guidelines, Section II.D. For a more detailed, recent assessment of the term and its application, see, e.g., World Heritage List [WHL]: Guidance (2006, pp. 3–14); Session reports: 29th Session (2005, INF.9B). 9 Apparently, the application of the concept of outstanding universal value and the conditions of integrity by the World Heritage Committee and its advisory bodies has become increasingly rigorous over time (Session reports: 31st Session, 2007, Item 9, p. 24 [Progress report by IUCN, 20 April 2007]). For treatment of outstanding universal value, integrity and authenticity from a philosophical point of view, see Jokilehto (2006). 10 The Tentative Lists of states are accessible at http://whc.unesco.org/en/tentativelists
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Tentative List is today a compulsory prerequisite for the World Heritage Committee to consider a nomination for inscription on the World Heritage List.11 States are requested to submit their Tentative Lists to the World Heritage Centre at least one year before the submission of a World Heritage List nomination (Operational Guidelines, para. 65). The WHC system includes one more list of properties, a List of World Heritage in Danger. This list contains properties “appearing in the World Heritage List for the conservation of which major operations are necessary and for which assistance has been requested under [the WHC]” (WHC, Art. 11.4; Operational Guidelines, para. 177).12 Moreover, “[t]he Committee may at any time, in case of urgent need, make a new entry in the List of World Heritage in Danger and publicize such entry immediately” (WHC, Art. 11.4).13 Pursuant to the WHC, the List of World Heritage in Danger may include only such property forming part of the cultural and natural heritage as is threatened by serious and specific dangers, such as the threat of disappearance caused by accelerated deterioration, large-scale public or private projects or rapid urban or tourist development projects; destruction caused by changes in the use or ownership of the land; major alterations due to unknown causes; abandonment for any reason whatsoever; the outbreak or the threat of an armed conflict; calamities and cataclysms; serious fires, earthquakes, landslides; volcanic eruptions; changes in water level, floods and tidal waves (Art. 11.4, emphasis added).
In principle, it is (solely) within the discretion of the World Heritage Committee to decide whether a property is to be included on the List of World Heritage in Danger. It can take the decision “by a majority of two-thirds of the Committee members present and voting” (Operational Guidelines, para. 186). The territorial state needs to be consulted, but it must only be involved “as far as possible” in the process of developing a programme for corrective measures for the property (paras. 183–184). The committee can inscribe a property on the List of World Heritage in Danger if it is of the opinion that “the condition of the property corresponds to at least one of the criteria in either of the two cases described below” (para. 178), i.e., the property is in “ascertained” or “potential” danger. Ascertained danger is “specific and proven imminent danger”14 whereas potential danger is a major threat which 11 This
has been required of all nominations, including those of natural properties, since 2000 (Operational Guidelines, para. 63). 12 For a more detailed treatment, see Buzzini and Condorelli (2008, pp. 181–183). 13 For a more detailed treatment of the case of urgent need, see Buzzini and Condorelli (2008, pp. 183–186). 14 In the case of cultural properties, examples of ascertained danger are: “(i) serious deterioration of materials; (ii) serious deterioration of structure and/or ornamental features; (iii) serious deterioration of architectural or townplanning coherence; (iv) serious deterioration of urban or rural space, or the natural environment; (v) significant loss of historical authenticity; (vi) important loss of cultural significance” (para. 179), and in the case of natural properties: “(i) A serious decline in the population of the endangered species or the other species of outstanding universal value for which the property was legally established to protect, either by natural factors such as disease or by man-made factors such as poaching”; “(ii) Severe deterioration of the natural beauty or scientific
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could have deleterious effects on the inherent characteristics of the property (paras. 179–180).15 Moreover, the factor or factors which are threatening the integrity of the property must be such that they can be corrected by human action (para. 181).16 Once a World Heritage site no longer faces such threats endangering its existence, it can be removed from the World Heritage List in Danger.17 All three lists are managed by the World Heritage Committee. Currently, 162 of the States that are Parties to the WHC have submitted a Tentative List, and the total number of properties on the Tentative Lists of states is 1468. The World Heritage List contains 851 properties. These include 660 cultural, 166 natural and 25 mixed properties (i.e., properties inscribed as both cultural and natural sites) in 141 countries. A total of 30 World Heritage properties (in 24 countries) are currently on the List of World Heritage in Danger.
8.1.2 General Obligations Pursuant to the Vienna Convention on the Law of Treaties (Vienna Convention, 1969), “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (pacta sunt servanda; Art. 26). All states are thus under the obligation to act in good faith to achieve the purposes of the international value of the property, as by human settlement, construction of reservoirs which flood important parts of the property, industrial and agricultural development including use of pesticides and fertilizers, major public works, mining, pollution, logging, firewood collection, etc.”; and “(iii) Human encroachment on boundaries or in upstream areas which threaten the integrity of the property” (para. 180). 15 Examples of potential danger for cultural properties include: “(i) modification of juridical status of the property diminishing the degree of its protection; (ii) lack of conservation policy; (iii) threatening effects of regional planning projects; (iv) threatening effects of town planning; (v) outbreak or threat of armed conflict; (vi) gradual changes due to geological, climatic or other environmental factors” (para. 179), and for natural properties: “(i) a modification of the legal protective status of the area; (ii) planned resettlement or development projects within the property or so situated that the impacts threaten the property; (iii) outbreak or threat of armed conflict; (iv) the management plan or management system is lacking or inadequate, or not fully implemented” (para. 180). 16 There are also certain “supplementary factors” which the committee “may wish to bear in mind” when making its decision: “(a) Decisions which affect World Heritage properties are taken by Governments after balancing all factors. The advice of the World Heritage Committee can often be decisive if it can be given before the property becomes threatened. (b) Particularly in the case of ascertained danger, the physical or cultural deteriorations to which a property has been subjected should be judged according to the intensity of its effects and analyzed case by case. (c) Above all in the case of potential danger to a property, one should consider that: (i) the threat should be appraised according to the normal evolution of the social and economic framework in which the property is situated; (ii) it is often impossible to assess certain threats – such as the threat of armed conflict – as to their effect on cultural or natural properties; (iii) some threats are not imminent in nature, but can only be anticipated, such as demographic growth. (d) Finally, in its appraisal the Committee should take into account any cause of unknown or unexpected origin which endangers a cultural or natural property” (para. 182). 17 For a more detailed treatment, see Buzzini and Condorelli (2008, pp. 177–199).
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conventions which they have adhered to. Pursuant to the WHC, “the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the [world] cultural and natural heritage . . . belongs primarily to [the] State” on whose territory such heritage is situated (Art. 4). However, as the convention recognises, the “protection of this heritage at the national level often remains incomplete because of the scale of the resources which it requires and of the insufficient economic, scientific, and technological resources of the country where the property to be protected is situated” (Third Recital of the Preamble). Although the primary responsibility for practical conservation activities is on each state, the WHC builds upon a distinct international ideology in protecting heritage of outstanding universal value. It notes that “parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole” (Sixth Recital of the Preamble) and that the “deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world” (Second Recital of the Preamble). It is thus important “for all the peoples of the world” to “safeguard . . . this unique and irreplaceable property, to whatever people it may belong” (Fifth Recital of the Preamble). Accordingly, states have adopted the WHC to establish “an effective system of collective protection of the cultural and natural heritage of outstanding universal value, organized on a permanent basis and in accordance with modern scientific methods” (Eighth Recital of the Preamble). In addition to the preservation efforts of states concerning the world heritage properties within their territories, “in view of the magnitude and gravity of the new dangers threatening them, it is incumbent on the international community as a whole to participate in the protection of the cultural and natural heritage of outstanding universal value, by the granting of collective assistance” (Seventh Recital of the Preamble). Pursuant to Article 6, Parties to the WHC recognise “the duty of the international community as a whole to co-operate” for the protection of world heritage, “[w]hilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage . . . is situated, and without prejudice to property right provided by national legislation” (Art. 6.1, emphasis added). They “undertake . . . to give their help in the identification, protection, conservation and presentation of the cultural and natural heritage . . . if the States on whose territory it is situated so request” (Art. 6.2, emphasis added). Pursuant to Article 7, “international protection of the world cultural and natural heritage shall be understood to mean the establishment of a system of international co-operation and assistance designed to support States Parties . . . in their efforts to conserve and identify that heritage” (emphasis added). Hence, despite the numerous references in the WHC to common interests and collective protection efforts, practical responsibility for the protection of world natural and cultural heritage falls primarily on the states in which the heritage properties are situated. This may be difficult to reconcile with the fact that, in principle, all WHC Parties (i.e., practically meaning all states) have a collective interest in the preservation of world heritage and thus are also beneficiaries of the obligation of states to protect the world heritage within their territory (Global climate
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change, 2004, p. 21).18 Pursuant to the WHC, a state party with a World Heritage site to protect “will do all it can to this end, to the utmost of its own resources and, where appropriate, with any international assistance and co-operation, in particular, financial, artistic, scientific and technical, which it may be able to obtain” (Art. 4). Moreover, the state is under the obligation to establish policies and services “for the protection, conservation and presentation of the cultural and natural heritage situated on its territory” (Art. 5.a–b) as well as to “develop scientific and technical studies and research and to work out . . . operating methods” for “counteracting the dangers that threaten its cultural or natural heritage” (Art. 5.c). States must undertake “appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of [world] heritage” (Art. 5.d). Obviously, they are not allowed to deliberately damage cultural or natural heritage – neither directly nor indirectly (Art. 6.3).19 However, as is clearly stated by Article 6, the WHC is based on full respect for state sovereignty (and for national private property rights), and it is possible that national interests conflict with those of the world community. The territorial state and the WHC bodies may even have very divergent views on the World Heritage value of a particular property or its management (see Francioni, 2008, pp. 5–6). Many properties proposed by states never make it to the World Heritage List. Those that do may be removed from the list due to actions taken by the territorial state. Thus far the only example is the delisting in 2007 of the Arabian Oryx Sanctuary (Oman).20 The delisting was done because of Oman’s decision to reduce the protected area significantly (by 90%), apparently due to planned hydrocarbon activities (Oman’s Arabian Oryx, 2007; Buzzini & Condorelli, 2008, p. 199). Although the actual removal of properties from the World Heritage List is thus rare, the World Heritage Committee has often threatened to do that if the territorial state does not revise its land use or other plans which are expected to have detrimental impacts on a World Heritage site (see Buzzini & Condorelli, 2008, p. 196). For instance, the Cologne Cathedral (Germany) was inscribed on the In Danger List in 2004 because the Cologne city administration decided to allow the construction of high-rise buildings which were deemed to compromise the visual integrity of the cathedral. Nevertheless, the first skyscraper of the planned five was completed in 2005. The World Heritage Committee threatened to “start the process of delisting the property” if “the State Party cannot provide the assurance for an acceptable solution”. (Session reports: 29th Session, 2005, Decision 29COM 7A.29, para. 9.) The cathedral has
18 For
a discussion concerning the possible erga omnes character of obligations created by the WHC, see Buzzini and Condorelli (2008, pp. 178–179). 19 These provisions have been examined in more detail in, i.e., Global climate change (2004) and the Tasmanian Dam Case in the High Court of Australia (Commonwealth v Tasmania, 1982–1983). The deliberations of the court in the Tasmanian Dam case are available at http://law.ato.gov.au/atolaw/view.htm?dbwidetocone=05%3ALRP%3AHigh%20Court%3A1983% 3ACommonwealth%20v%20Tasmania%20(The%20Tasmanian%20Dam%20Case)%3A%2301% 23Order%3B (retrieved June 22, 2008). 20 The site was initially listed in 1994.
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been kept on the World Heritage List and was even removed from the In Danger List in 2006 thanks to Germany’s decision to halt the building project (Boer, 2008, pp. 358–360). Another, very topical example from Germany is the project to build a four-lane bridge over the Elbe River in Dresden, despite the fact that the Elbe Valley is a World Heritage site. Consequently, the World Heritage Committee put the site on the In Danger List in 2006 and threatened to remove it from the World Heritage List if the construction plan is carried through. The building work started in late 2007 but Dresden has since offered to somewhat scale down the bridge (Dresden to scale, 2008). UNESCO has recommended the construction of a tunnel instead (UNESCO report, 2008). At this writing (late June 2008), the Dresden Administrative Court is examining the (already approved) bridge plan because three local nature protection associations have filed a lawsuit against it due to alleged threats to an endangered species of bats. If the nature conservationists won the case, the already erected parts of the bridge would have to be pulled down. (Dr. Ulrich Meyerholt, Institut f¨ur Rechtswissenschaften, Carl von Ossietzky Universit¨at, Oldenburg, personal communication, 2008, June 23). The status of the Dresden Elbe Valley as a World Heritage site will be reviewed again by the World Heritage Committee in its 32nd session in July 2008.
8.1.3 The Process It is the duty of each state to identify its cultural and natural heritage (WHC, Art. 3). Pursuant to WHC Article 11.1, every state must “in so far as possible, submit to the World Heritage Committee an inventory of property forming part of the cultural and natural heritage, situated in its territory” which it considers suitable for inclusion in the World Heritage List. On the basis of these inventories (i.e., the Tentative Lists), the committee has established and maintains the World Heritage List, “a list of properties forming part of the cultural heritage and natural heritage . . . which it considers as having outstanding universal value in terms of such criteria as it shall have established” (Art. 11.2). The right to submit proposals for World Heritage List inclusions is restricted to States that are Parties to the WHC. Nongovernmental organisations (including the International Council on Monuments and Sites, ICOMOS, and the World Conservation Union, IUCN, which are the advisory bodies of the World Heritage Committee), let alone individuals (scientists, for instance), are not allowed to make nominations. In practice, nearly all World Heritage sites have been nominated by the very country where they are situated. Despite the fact that the World Heritage Convention, in principle, establishes an international (if not supranational) system for the preservation of the world’s cultural and natural heritage, most of the crucial decision-making power thus still resides at the national level: “[c]ountries must be willing to participate in the convention, be willing to nominate sites, and be able to nominate sites”. (Aa, 2005, p. 22).21 For instance, the heritage of a (non-dominant) minority or ethnic community in a state can be 21 For
a more detailed treatment, see Aa (2005, pp. 22–26).
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overlooked (see Francioni & Lenzerini, 2008, p. 405), or economic considerations may override preservation concerns. Accordingly, states may simply not nominate certain properties, which will therefore remain outside the World Heritage system (Aa, 2005, p. 24).22 In short, the nomination process for the World Heritage List goes as follows. After the inclusion of a property on a state’s Tentative List, the state can present a nomination file to the Word Heritage Centre. Once the centre has checked it, the file is sent for evaluation either to the ICOMOS or the IUCN. The International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) can be asked to give additional advice on conservation of cultural sites. The World Heritage Committee makes decisions on new World Heritage site inscriptions once a year. In practice, the nomination process can last for years; at shortest it may take about a year and a half (Aa, 2005, p. 21). The World Heritage Committee constantly reviews the state of conservation of World Heritage sites (Operational Guidelines, paras. 169 et seq). On the basis of this monitoring the committee may even decide to remove a particular property from the World Heritage List, if “the property has deteriorated to the point where it has irretrievably lost those characteristics which determined its inscription on the List” (Operational Guidelines, paras. 176.d, 191.c).23 The deletion of a listing is possible if the property has lost its “World Heritage qualities” because of a natural disaster or some kind of human intervention but not in order to accommodate a “better” World Heritage site (Aa, 2005, p. 8). Like the inclusion of a property on the List of World Heritage in Danger, the deletion of properties from the World Heritage List can be done by a majority of two-thirds of the members of the committee present and voting, provided that the state concerned has been also consulted on the question (Operational Guidelines, para. 196).24 Thus far the only property that has been deleted from the World Heritage List is the Arabian Oryx Sanctuary (Oman), delisted in 2007.
8.2 Challenges to the World Heritage System 8.2.1 Imbalance of the World Heritage List The WHC system has been accused of being biased in many ways. First of all, despite the stated objective of the preservation of cultural and natural heritage of
22 For
an assessment of the role of the WHC in respect of properties fulfilling the requirements of the convention for world heritage of outstanding universal value but nevertheless not included in the World Heritage List, see later. 23 The procedure for the deletion of properties from the World Heritage List is set out in paras. 192–198. 24 There is no express provision in the WHC providing for the possibility of deleting a property from the World Heritage List, but this possibility was contained already in the first version of the Operational Guidelines in 1977 (Operational Guidelines, 1977, para. 5.iv) and has been maintained ever since.
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the world, the system has focused heavily on the preservation of heritage of the first type. Cultural sites have had a much higher chance of inscription on the World Heritage List25 and they are much more numerous than natural sites.26 Despite corrective efforts, natural and mixed properties continue to be underrepresented: less than 20% of all World Heritage sites are sites of outstanding natural value, and even less than 3% mixed sites. Secondly, even within the realm of cultural heritage the focus of the World Heritage List has been relatively narrow. Above all, Western European historic towns and religious monuments, Christianity, historical periods and “elitist” architecture have been heavily over-represented, to the detriment of more “traditional” cultures (Global strategy, n.d.).27 The selection criteria of the Operational Guidelines have long favoured “monumentalist” nominations over less materialistic cultural heritage values such as those manifested by artefacts, oral traditions or dance, for instance (Yusuf, 2008, p. 33). In order to make the World Heritage List better reflect the diversity of the heritage of the world, the World Heritage Committee launched in 1994 a Global Strategy for a Balanced, Representative and Credible World Heritage List (Global strategy, n.d.).28 The Global Strategy soon expanded its concern from improving the representativeness of the list of cultural World Heritage to include increasing the proportion and representativeness of natural heritage protected under the WHC.29 Additionally, one of the aims of the strategy has been to strengthen the protection of interactions (past and continuing) between people and their natural environment through World Heritage conservation (Session reports: 22nd Session, 1998, pp. 4, 8). The Global Strategy has identified in this respect many areas where gaps in the World Heritage List could be completed, such as the “movement of peoples” (e.g., nomadism) and “modes of subsistence” (Session reports: 22nd Session, 1998, p. 5).30 The representativeness of the World Heritage List has somewhat improved since the adoption of the Global Strategy. For instance, it has been estimated that of the recent nominations only some 5% might be considered “iconic” (Cameron, 2005, p. 5). Nevertheless, the Global Strategy has even been described as a failure. Of the over 30 countries that have ratified the WHC since 1994, the new European countries have put forward about twice as many sites as the other new Parties. Apparently, countries in Europe have benefited the most from the opportunity to nominate 25 For
more details, see Aa (2005, p. 20). numerical imbalance of the natural and cultural World Heritage nominations has been discussed as long as from the late 1970s (Session reports: 29th Session, 2005, INF.9A, p. 11; Yusuf, 2008, p. 32). 27 For a more detailed assessment, see Aa (2005, pp. 29–38). 28 On the history of the Global Strategy, see, e.g., Yusuf (2008, pp. 34–35). 29 The Global Strategy has encompassed natural heritage and mixed sites since 1996. 30 In addition to themes relating to human coexistence with the land, there are other areas which have more to do with the role of humans in a society, like “cultural coexistence” and “spirituality and creative expression” (Session reports: 22nd Session, 1998, p. 5). On the Global Strategy in more detail, see Yusuf (2008, pp. 35–40). 26 The
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sites in the heritage categories especially promoted by the Global Strategy, such as cultural landscapes. Additionally, many European countries have continued to successfully nominate cultural sites of the kind already sufficiently represented on the World Heritage List. The overall percentage of natural World Heritage sites has in fact decreased after 1994. (Aa, 2005, pp. 37–38). There are still major gaps in the list for many natural areas, including tundra and polar systems, as well as coastal and marine sites (especially in the Arctic) (Global strategy, n.d.; Session reports: 22nd Session, 1998, p. 11).31 The Operational Guidelines have also been amended to remedy the imbalance of the World Heritage system. Pursuant to them, “[a]ll efforts should be made to maintain a reasonable balance between cultural and natural heritage on the World Heritage List” (para. 57). Although the total number of properties to be inscribed on the list is not formally limited (para. 58), states are “requested to consider whether their heritage is already well represented on the List and if so to slow down their rate of submission of further nominations” (para. 59). In turn, states with under-represented heritage of outstanding universal value are encouraged to make more submissions (para. 60). Furthermore, the World Heritage Committee applies a special, temporary mechanism aimed at balancing the World Heritage List. Pursuant to the current formulation of this mechanism, the number of nominations the committee will examine from each state party is limited to two (“on an experimental basis of 4 years”; para. 61.a). There is also a total limit of 45 nominations it reviews annually (para. 61.b). If this yearly limit is exceeded, there is an order of priority on the basis of which the committee selects the nominations to be reviewed – with priority on natural, mixed and transboundary32 nominations by states with no or few existing World Heritage sites (para. 61.c). This mechanism has been even stricter in the sense that there used to be a requirement that at least one of the two nominations a state is allowed to make yearly must concern a natural property (Operational Guidelines, 2005, para. 61.a). Nevertheless, the new World Heritage sites nominated in 2007 consisted of as many as 16 cultural properties but only two natural properties (Redgwell, 2008, p. 82). On the other hand, it is inevitable that the number of cultural World Heritage properties is higher than that of natural properties: humans produce more cultural heritage all the time whereas the category of natural heritage is “an essentially closed one” (Redgwell, 2008, p. 83). The requirement that heritage properties listed under the WHC must meet the criterion of outstanding universal value includes an eventual limit on the number of natural World Heritage sites (see World Heritage List
31 See also Values of the Arctic (2004, p. 8). A study carried out by the ICOMOS in 2004 identified
two main categories of reasons for the gaps in the World Heritage List. The first was structural reasons related to the nomination process of World Heritage sites, and to management and protection of cultural properties. Secondly, there are qualitative reasons concerning the way properties are identified, assessed and evaluated (Global strategy, n.d.). 32 One practical reason for the lack of natural World Heritage sites is the fact that natural properties often extend over the territories of several countries, and transboundary nominations tend to be more complicated to make (Aa, 2005, pp. 27–28).
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[WHL]: Future priorities, 2004, pp. 1, 3, 13). Given the repeated calls for a more representative World Heritage List in terms of natural and mixed sites in particular, this limit is presumably still quite far away, however.33 In any case, the ratio between the two categories is bound to change continuously. Hence it appears rather impossible to determine what the “reasonable balance” between the different types of heritage would be. It should also be noted that it is impossible by definition that world heritage of outstanding universal value would be distributed evenly in all the different countries of the world. Limiting the amount of new nominations a single state is allowed to make within a certain period of time seems thus somewhat illogical. At worst, it may block the inscription of exceptionally valuable or even unique properties merely because they are located in a country that has already exhausted its quota for new nominations. Such mechanisms might make the World Heritage Convention an increasingly political tool for promoting state interests instead of the interests of the whole of humanity, future generations included. (Francioni & Lenzerini, 2008, p. 409).
8.2.2 Competing Interests As the vast number of States that are Parties to the WHC indicates, it has been a popular convention. No doubt many states share a genuine interest in promoting sustainable development and preserving properties of outstanding universal cultural and natural value for future generations. Furthermore, World Heritage sites are a source of national pride and cultural identity (see, e.g., Cameron, 2005, p. 6). However, states have found World Heritage nominations beneficial in other ways as well. Less noble motives have also contributed to the success of the convention. Most importantly, the designation of a property as a World Heritage site has typically not only entailed attention and protection but also generated income for the territorial state (see, e.g., George, 2006). The WHC system itself has a special World Heritage Fund which allocates money (c. 4 million USD per year) to member states for identifying, preserving and promoting World Heritage sites (WHC, Chapter IV; Operational Guidelines, Chapter VII). The inscription of a site on the World Heritage List may generate financial assistance also from many other sources internationally (see, e.g., State of the World, 2005, pp. 136–138). Such economic benefits are particularly important for less developed countries, for obvious reasons. However, even Sweden, a wealthy North-European country, has considered “increased funding” as the most significant benefit of the World Heritage status (State of the World, 2005, p. 142). For instance, many Swedish world heritage restoration and/or management projects have been carried out with European Community funding 33 Pursuant
to an estimation made by the IUCN, “a number in the range of 300 natural and mixed WH sites should be sufficient to complete this part of the WH List”. The IUCN estimated in 2004 that it could take about 10 years to achieve this. Subsequent additions may be needed even after that, due to “new information and scientific knowledge” (World Heritage List [WHL]: Future priorities, 2004, p. 13).
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(State of the World, 2005, p. 145).34 World Heritage sites have often been profitable for the country of their location also due to increased tourism (Benefits of ratification, n.d.). The designation of a property as a World Heritage site creates an undeniable tourist attraction, which travel agencies tend to market keenly (State of the World, 2005, p. 149).35 Apparently, the expected benefits of tourism are a major reason why many countries continue to propose new World Heritage properties from categories that are already over-represented on the World Heritage List (Aa, 2005, pp. 133). Increased tourism and publicity can, on the other hand, result in more tear and wear of the sites, and thus increased protection and/or restoration costs. At worst, tourism can endanger the preservation of a site. (Aa, 2005, pp. 17–18). Paradoxically, “World Heritage sites . . . may be more threatened after listing” (Aa, 2005, p. 108). Furthermore, as the World Heritage List grows, it might lose the “power of exclusivity” and many World Heritage sites could become far less attractive and thus economically less profitable (Hafvenstein & Handwerk, 2003). At the same time, it becomes increasingly difficult for international funders of World Heritage preservation to decide priorities for investment. The more World Heritage sites there are, the more difficult the system is to manage. (Cameron, 2005, p. 6). In addition, maintaining a high standard of the list is likely to become challenging in tandem with the growth in the number of World Heritage properties (Aa, 2005, p. 13). On balance, the success of the WHC has been explained by the “clear prevalence of rights and advantages over legal obligations that States Parties derive from the Convention” (Francioni & Lenzerini, 2008, pp. 402–403). Accordingly, there are typically plenty of suggestions for new World Heritage sites. From a purely economic point of view, tourism and financial aid for the protection of World Heritage properties has apparently in many cases yielded more money than has been spent on the preservation of the heritage. Of course, many countries also state as the primary motivating factors for having World Heritage properties the prestige and conservation of the sites (see State of the World, 2005, p. 142). Generally, there is no reason to doubt the genuine will of states to preserve for future generations properties of exceptional cultural and natural value. Nevertheless, the popularity of the WHC has undeniably derived at least partly from other considerations, too. Today, however, the interests related to the protection of both natural and cultural heritage increasingly collide with those concerning, e.g., economic utilization of resources of existing and potential World Heritage sites (see Francioni & Lenzerini, 2008, p. 403). The nomination of new World Heritage properties may well not be expected to generate sufficient revenue to make such nominations economically more tempting than the use of these areas for other purposes. Accordingly, states appear to be increasingly reluctant to include new properties on their Tentative Lists. The plans 34 Sweden
has been very active in submitting nominations. It has more World Heritage sites (14 at the moment) than any other country in Nordic and Baltic Europe (State of the World, 2005, p. 141). 35 For a more detailed assessment, see Aa (2005, pp. 107–108). Apparently, making people visit different parts of the world was even one of the primary goals of UNESCO in creating the World Heritage system (Aa, 2005, p. 107).
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for future exploitation of natural areas have presumably been one reason why states have more eagerly nominated cultural than natural properties (see Aa, 2005, p. 27). One more type of “competing interests” which needs to be mentioned here are the special concerns of indigenous peoples vis-`a-vis World Heritage properties and the overall system of the WHC. In general, indigenous peoples have, of course, nothing against the preservation of cultural and natural heritage of the world – quite the reverse. The preservation for posterity of their heritage tends to be one of the central concerns of indigenous communities. They may even see the World Heritage Convention as a practical tool for this (see, e.g., Red Shirt, 2002). Indeed, the nomination of some World Heritage sites has been at least partly justified on the grounds of their values to indigenous peoples. For instance, the nomination decision of the World Heritage Committee for the Laponian Area (Sweden) describes it as an area which “has been occupied continuously by the Saami people since prehistoric times, is one of the last and unquestionably largest and best preserved examples of an area of transhumance, involving summer grazing by large reindeer herds, a practice that was widespread at one time and which dates back to an early stage in human economic and social development”. Furthermore, the committee “underlined the importance of the interaction between people and the natural environment” and “recommended that the Swedish authorities continue to work with local Saami people”. (Session reports: 20th Session, 1996, p. 62.) Unfortunately, indigenous values have not always been taken into account in the WHC system in a similar manner. Many World Heritage properties have importance to indigenous cultures as sacred and historic sites. They can also be significant indigenous hunting grounds, for instance. Nevertheless, the local indigenous communities may not have been as much as consulted about the nomination and/or the subsequent management of a site. The possibilities to practice traditional livelihoods or carry out other indigenous land use activities can be restricted in the name of World Heritage conservation. Sometimes indigenous communities have even been forced to move from an area in order to enable its inscription on the World Heritage List as a natural site. (Titchen, 2002). In addition, the revenues generated by World Heritage tourism may not accrue for the benefit of local populations. Not surprisingly, indigenous peoples can be reluctant to support World Heritage nominations. The World Heritage Convention contains no specific reference to indigenous peoples. For instance, it does not consider the potential special meaning of World Heritage sites to indigenous communities in any particular manner. A Forum of Indigenous Peoples which convened in parallel with the 24th session of the UNESCO World Heritage Committee in 2000 requested the establishment of a World Heritage Indigenous Peoples Council of Experts (WHIPCOE) to amend this deficiency (Petition, 2000). The idea was that the council could advise states and WHC bodies about indigenous concerns in the development and evaluation of nominations, as well as in the management of World Heritage sites, for instance. In 2001, an Indigenous Working Group examined the feasibility of the proposal with UNESCO (Report on the proposed, 2001). However, the World Heritage Committee eventually rejected the establishment of WHIPCOE (Session reports: 25th Session, 2001, para. XV.5, p. 57).
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8.2.3 Climate Change At the time of the adoption of the WHC in 1972, global warming was not yet considered an imminent or pertinent threat. Today, however, it is clearly one of the most significant challenges humankind is facing. Climate change poses a considerable danger to the outstanding universal value and integrity of World Heritage sites – even to the point of destroying the characteristics which once warranted the inscription of properties on the World Heritage List. “Potentially, the World Heritage List as we know it today could be changed dramatically”. (Predicting and managing, 2006, para. 51). Climate change is developing at such a pace that detrimental alterations in the quality of many World Heritage properties may take place quite soon. Although the idea behind the WHC was initially that of protecting our common natural and cultural heritage for the generations to come, the WHC is increasingly an instrument for the benefit of even present generations: climate change threatens to severely damage or destroy altogether many World Heritage sites already during our lifetime. For instance, the glaciers of one World Heritage site, the Waterton-Glacier International Peace Park (US/Canada), are expected to vanish completely by as soon as 2030.36 Also tropical coral reefs are under a particular threat of extinction due to the warming temperatures (the most famous example being the World Heritage site of Great Barrier Reef, off the north-east coast of Australia). The multiple changes in ecological and biological processes and habitats constitute a hazard to all ecosystems. Consequently, most natural World Heritage properties “are at risk of being affected by climate change”. (Measures to counter, 2006). Less obvious is that cultural heritage is also threatened by the changing climate.37 Buildings have been designed for certain climatic conditions and may not be able to resist significant environmental changes, such as alterations in moisture or temperature. Increased storminess can cause structural damage. Other climatic threats to cultural heritage include erosion, desertification and salt weathering. (Session reports: 31st Session, 2007, Item 7.1, p. 2). Thawing permafrost can result in dramatic “ground slumping”.38 Coastal sites are threatened by rising sea levels. Extreme weather events can cause natural disasters which may impact on all kinds 36 Over
2/3 of the glaciers that were in the park in 1850 have already disappeared (State of the parks, 2002, p. 15). 37 The World Heritage Centre made a survey among the states parties to the WHC in 2005. Of the 110 responses from 83 states 72% were of the opinion that climate change had an impact on their natural and cultural heritage. 125 World Heritage sites were mentioned specifically as threatened by the warming climate. 46 of these were cultural sites, the rest 79 natural or mixed sites (Predicting and managing, 2006, paras. 40, 42–43, 45). 38 In the natural World Heritage site of Kluane/Wrangell-St.Elias/Glacier Bay/Tatshenshini-Alsek Park, additional significant cultural values have recently been discovered: over 9000-year-old culturally modified pieces of wood. Their conservation is threatened because of the rapid melting of the ice patch where they are located (Predicting and managing, 2006, “Box 6” [below para. 33]). The deterioration of permafrost has also affected significantly at least one property included in the Canadian Tentative List, the Ivvavik/Vuntut/Herschel Island (Colette, 2007, pp. 58–59).
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of World Heritage properties. (See, e.g., Predicting and managing, 2006, para. 51). Although it might, in principle at least, be possible to move some cultural heritage (e.g., buildings) to a new, environmentally safer location, this could have a significant negative overall impact on the value of the World Heritage site in question. Hence, also cultural heritage is normally practically immovable. (Predicting and managing, 2006, para. 119). In addition to such direct, “tangible” physical threats, the impacts of climate change on the social and cultural aspects of communities can be considerable – even to the point where a society needs to migrate elsewhere. This alone may be detrimental to some World Heritage sites, as many of them are living places that depend on the local human communities to sustain and maintain them. Climate change inevitably affects the way people relate to their environment. (See Predicting and managing, 2006, paras. 35–36). Innovative mechanisms for adaptation and mitigation are thus needed for many (if not most or even all) World Heritage properties (Predicting and managing, 2006, para. 51). Unfortunately, there is still relatively little knowledge about the effects of climate change on World Heritage, cultural properties in particular. There is also a lack of financial resources and capacity for research. (Session reports: 31st Session, 2007, Item 7.1, p. 5). There have been calls that the World Heritage Committee keep up the effectiveness of the WHC by, inter alia, recognising that Parties to the WHC must take mitigative measures as a part of their duty to protect and to pass World Heritage sites to generations to come (World Heritage Committee, 2006). Also the committee itself has stated that Article 4 of the WHC in the context of climate change is the basis for States to ensure that they are doing all that they can ‘to the utmost of their resources, which they may be able to obtain’ to address the causes and impacts of climate change, in relation to the potential and identified effects of climate change (and other threats) on World Heritage properties situated on their territories (Session reports: 31st Session, 2007, Item 7.1, p. 7).
However, even if states were considered legally obliged to protect World Heritage sites from damage by reducing greenhouse emissions, for instance, there are no enforcement measures available in the WHC in case of non-compliance. On the other hand, the symbolic, political value of even a non-binding statement to the same end should not be underestimated either. But such non-binding statements will likely not be enough to persuade many key states to take mitigative measures or devote significant resources to building adaptive capacity. A worrisome example is the United States, a member of the World Heritage Committee since October 2005. After the US was elected as a committee member, it issued a position paper questioning the science of climate change and demanded that no sites be included in the List of World Heritage in Danger unless supported by the governments of countries where located (UNESCO adopts, 2006).39 There are no UNESCO regulations to this effect. Quite the contrary: pursuant to the WHC, it 39 Australia,
p. 406).
for instance, has expressed similar opinions. See Francioni and Lenzerini (2008,
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is open solely to the World Heritage Committee to consider that a particular World Heritage site should be inscribed on the List of World Heritage in Danger. There is thus no need for approval of the state party on whose territory the property is; in principle, inclusion of a site on the list is possible even contrary to the views of the country concerned. However, this might be difficult already due to political reasons, given in particular that a decision to inscribe a property on the In Danger List must be taken “by a majority of two-thirds of the Committee members present and voting” (Operational Guidelines, para. 186). Moreover, the World Heritage Committee needs the home country’s cooperation for solving the threats a site is facing. At worst, ignoring a country’s opinion might make it abandon the World Heritage system altogether. (Aa, 2005, p. 105). Consequently, the unilateral inclusion of a property on the List of World Heritage in Danger remains a nearly theoretical possibility. Nevertheless, there are some cases where the World Heritage Committee has in fact placed a property on the In Danger List in spite of the opposition of the territorial state: Simien National Park (Ethiopia) in 1996 and Kathmandu Valley (Nepal) in 2003 (removed from the list in 2007) (see Buzzini & Condorelli, 2008, pp. 193–194). Pursuant to the Operational Guidelines, a property can be “faced with major threats which could have deleterious effects on its inherent characteristics” if, for example, its “management plan or management system is lacking or inadequate, or not fully implemented” (para. 180.b.iv). In the case of natural World Heritage sites, this can constitute a “potential danger”, and thus warrant the inclusion of a site on the List of World Heritage in Danger (para. 178). It has even been argued that the World Heritage Committee could decide to place a site on the In Danger List on the basis that its home state has not taken appropriate and effective steps to combat climate change.40 This may be a far-fetched interpretation in practice. It is, nevertheless, obvious that climate change has many other implications for the WHC. For instance, the nomination processes, as well as reporting and monitoring measures may need to be adjusted. Management plans of all World Heritage sites threatened by climate change should be continuously re-evaluated and updated, and potential mitigation and adaptation measures investigated. (See, e.g., Background paper, 2005, p. 46).41 The local communities, including minorities and indigenous peoples, and influential sectors, such as tourism and industry, should be involved in this process (Predicting and managing, 2006, para. 78). In the most dramatic case, the World Heritage Committee may be faced with the need to delete a property from the World Heritage List altogether, if it has “irretrievably lost those characteristics 40 See the report Global climate change (2004), where it was argued that “the World Heritage Committee could determine that the [Great Barrier Reef] should be placed on the List of World Heritage in Danger on the grounds that the Australian Government has not developed an appropriate and effective response to climate change through ratification of the Kyoto Protocol and a commitment to substantial reductions in greenhouse gas emissions” (para. 115). 41 For suggestions of the World Heritage Committee to these ends, see Session reports: 31st Session (2007, Item 7.1, pp. 7–9).
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which determined its inscription on the List” due to changed climatic conditions (Operational Guidelines, para. 176.d). The World Heritage Committee has been accused of promoting a weak strategy for World Heritage and climate change, with focus on impacts instead of causes of the problem (World Heritage Committee, 2006). It has attempted improvements in this respect, however. The committee adopted in 2007 a new “Policy Document on the Impacts of Climate Change on World Heritage Properties” (Session Reports: 31st Session, 2007, Item 7.1, pp. 2 et seq). It acknowledges that climate change is a major threat to the outstanding universal value of many World Heritage sites and should thus be “considered in all aspects of nominating, managing, monitoring and reporting on the status of the sites” (Session Reports: 31st Session, 2007, Item 7.1, p. 10). The document suggests several amendments to the Operational Guidelines with explicit references to climate change. For instance, the committee intends to clarify the paragraphs that set out the criteria for placing properties on the In Danger List (paras. 179–181) to include express reference to the effects of climate change, “particularly focusing on possible adaptation measures at site level, but also recognizing that the causes of climate change are amenable to correction by human action by the global community of States Parties” (Session Reports: 31st Session, 2007, Item 7.1, p. 8).42 The committee may also ask states to report on the threats and impacts of climate change to outstanding universal value, as well as on the consequent mitigation and adaptation measures (Session Reports: 31st Session, 2007, Item 7.1, p. 8).43 Additionally, the World Heritage Committee is planning an informal list or index of “World Heritage Properties affected or potentially affected by climate change” (Session Reports: 31st Session, 2007, Item 7.1, p. 9).
8.3 WHC in the Arctic 8.3.1 Current Situation The Arctic is a unique region containing much of the pristine nature and landscapes of the entire world. It has also important cultural areas and rich archaeological sites thanks to the numerous ancient Arctic societies. (See Values of the Arctic, 2004, p. 2). As the participants to the International Expert Meeting on World Heritage and the Arctic emphasised in 2007, “the Arctic region is important for global processes and is to be considered as precious heritage for humankind”. It hosts a number of outstanding but vulnerable natural and cultural heritage places which are in need of protection, improved management and international recognition. (Conclusions and recommendations, 2007, p. 1). All eight Arctic states are Parties to the WHC. All
42 For
more information, see Session reports: 31st Session (2007, Item 7.1, pp. 7–9). would supplement the existing request under para. 199 of the Operational Guidelines to submit reports on legislative and administrative provisions adopted and other actions taken for the application of the WHC.
43 This
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of them have submitted Tentative Lists and have World Heritage sites within their territories. The Nordic countries even have a special Nordic World Heritage Foundation to support the implementation of the WHC.44 On balance, one could presume the World Heritage Convention to be a significant international legal instrument for the Arctic region. However, although the total number of World Heritage sites worldwide is already as high as 851, very few of them are in the northernmost areas. In fact, the World Heritage List contains only two natural, one cultural and one mixed property situated north of the Arctic Circle: the Natural System of Wrangel Island Reserve (Russian Federation), Ilulissat Icefjord (Denmark/Greenland), Rock Art of Alta (Norway), and the Laponian Area (Sweden). The Alta rock carvings was the first Arctic World Heritage site, nominated in 1985. The Laponian Area was added to the World Heritage List over a decade later, in 1996. The Natural System of Wrangel Island Reserve and the Ilulissat Icefjord have only been World Heritage sites since 2004. These are the World Heritage properties usually considered to be located in the “Arctic” as they are situated above the Arctic Circle (the Laponian Area also extending below this line) (see, e.g., Conclusions and recommendations, 2007, p. 1). Additionally, the transnational heritage site of Struve Geodetic Arc (nominated in 2005)45 partly resides in the Arctic. However, various definitions of the Arctic exist and it has been suggested that the use of the Arctic Circle as the southernmost limit of the Arctic region for the purposes of the WHC may be too restrictive (Conclusions and recommendations, 2007, p. 2). Additional World Heritage sites located close to the Arctic Circle (yet below it) include the Nahanni National Park (Canada) and the park system of Kluane/Wrangell-St. Elias/Glacier Bay/Tatshenshini-Alsek (Canada/US). These two are relatively old World Heritage sites: the Nahanni National Park since 1978, and the latter parks since 1979 (with extensions made in 1992 and 1994). Another “near-Arctic” property, the Thingvellir National Park in Iceland has been a World Heritage site since 2004.46 Irrespective of the exact definition of the Arctic used, the region currently falls mostly beyond the scope of the WHC in the sense that there are so few World Heritage properties in the Arctic. Of all World Heritage sites in the world, less than 0.5% are located above the Arctic Circle. The percentage does not grow substantially even if all “near-Arctic” sites were also counted. None of the four existing (undisputedly) Arctic World Heritage sites, nor any of the “near-Arctic” sites is placed on the World Heritage List of Sites in Danger. In fact, none of the Arctic countries has a single World Heritage site on the In Danger List. Unfortunately, this does not mean that there would not be natural and cultural heritage of outstanding universal value in the Arctic, or that this heritage would not be facing “serious and specific 44 For
more information, see Nordic World Heritage Foundation website.
45 Transboundary World Heritage property of Belarus, Estonia, Finland, Latvia, Lithuania, Repub-
lic of Moldova, Norway, Russian Federation, Sweden, and Ukraine. Values of the Arctic (2004), Arctic World Heritage natural sites alone are counted to include “three national parks in Canada, two in the USA (Alaska), two in Sweden, three in Russia, one site in Greenland and [Thingvellir] National Park in Iceland” (p. 12).
46 In
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dangers” – quite the reverse. Ecosystems and cultures of the Arctic are often fragile and vulnerable, and climate change poses a particularly significant threat to them. Moreover, the interaction between people and their environment is especially important in the Arctic. But why is the Arctic not a popular place for World Heritage listings? One explanation is provided by the fact that a great majority of World Heritage sites (nearly 78%) have been accepted to the World Heritage List as cultural properties, i.e., monuments, groups of buildings, or “works of man or the combined works of nature and man, and areas including archaeological sites” which are deemed to be of outstanding universal value (WHC, Art. 1). In practice, these sites include such colossal, iconic, worldwide famous places as Machu Picchu in Peru, the Historic Centre of Rome, or pyramid fields in Egypt. No doubt such sites can be considered as representing outstanding cultural values respected by humanity at large; they are the remains of cultures widely admired still today and hence “transcend cultural affiliation”. There was a strong tendency to list such sites in the early years of the WHC in particular.47 (Cameron, 2005, p. 2). For many, the Arctic cultures, on the other hand, do not rank among those generally considered to be of the highest level of sophistication worldwide. They have flourished in remote places in environments hostile or even inaccessible to outside explorers, and have thus been relatively well isolated from the rest of the world. Furthermore, they usually do not have a long written history. In fact, Arctic cultures seem to remain quite unknown to many still today (especially to people beyond the Arctic). Accordingly, they have generally not been recognised as great cultures in the same way as, e.g., those of the ancient Incas, Romans or Egyptians. Not surprisingly, the achievements of the Arctic cultures seldom are considered as of “outstanding universal value”, which is the basic prerequisite needed for the inclusion of properties on the World Heritage List. It may even appear that the cultures of the Arctic are valued inferior to those of many other civilisations. In sheer numbers, the Arctic is of course thinly populated and all populations living in the northernmost regions are relatively small ones – yet this cannot justify their disregard or underestimation. Nevertheless, many Arctic indigenous peoples have for long been treated as inferior even to the other (non-indigenous) people within the Arctic region. Furthermore, the demanding weather conditions and the limited availability of building materials (other than ice and snow) in the northernmost areas have typically not supported the construction of large permanent structures capable of being passed on to future generations. The traditional lifestyles of many of the peoples living in the Arctic have also been more or less nomadic ones, for which sizeable permanent constructions seldom are very practical. Accordingly, there exist not that many potential candidates in the Arctic for cultural heritage sites of the type the World Heritage List cultural properties have traditionally been. However, they are not non-existent either. Besides, the widening of the concept of cultural heritage by
47 It
has been estimated that 20–30% of the early listings were “iconic” sites (Cameron, 2005, p. 2).
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the Global Strategy, for instance, has promoted the recognition of such manifestations of cultural values that are abundant in the Arctic; think about the protection of interactions between people and their natural environment, for instance. The main reason for the lack of Arctic World Heritage sites seems to be rather the reluctance of Parties to the WHC to submit proposals for Arctic World Heritage List inclusions and/or that of the World Heritage Committee to approve such submissions. The situation appears to be gradually improving: in accordance with the aims of the Global Strategy, Arctic countries have placed in their Tentative Lists properties that reflect the special cultural values of the Arctic peoples. These include the Saami sacrificial site of Ukonsaari in Finland (submitted already in 1990), the Quttinirpaaq National Park and the Ivvavik/Vuntut/Herschel Island (Qikiqtaruk) of Canada (both submitted in 2004), the Aasivissuit, Arnangarnup Qoorua (Greenlandic inland and coastal hunting area, submitted in 2003), a Norse/Eskimo cultural landscape in Greenland (submitted in 2003), and a Norwegian extension to the Laponian Area (submitted in 2002). These properties have not been included on the World Heritage List yet, however. Even if the cultural achievements of the Arctic peoples have thus far mostly not been deemed as fulfilling the criteria of the WHC for cultural heritage of outstanding universal value, it is much more difficult to argue for the exclusions of the natural heritage of the Arctic from the World Heritage List. There is plenty of nature, even pristine nature in the Arctic regions; in fact, most of the Arctic is very sparsely inhabited and in a relatively natural condition. The entire Arctic ecosystem is unique. Why are there not many Arctic natural World Heritage sites then? Pursuant to the WHC, natural heritage under the convention is “natural features consisting of physical and biological formations or groups of such formations . . .; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants . . .; natural sites or precisely delineated natural areas” which are “of outstanding universal value” (Art. 2).
The four natural selection criteria of the Operational Guidelines are: (vii) to contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; (viii) to be outstanding examples representing major stages of earth’s history, including the record of life, significant on-going geological processes in the development of landforms, or significant geomorphic or physiographic features; (ix) to be outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; (x) to contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation (para. 77).
Properties that are of “outstanding universal value” and meet at least one of these selection criteria should surely be abundant in the Arctic. Yet, prior to 2004, the World Heritage List contained no Arctic natural sites and only one mixed site, the Laponian Area (most of which is located south of the Arctic Circle). Hence, natural World Heritage sites in the Arctic are an even more recent phenomenon than
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cultural sites. They also continue to be very few in number (two, in addition to the Laponian Area). The reasons for this presumably are similar to those listed above for the lack of Arctic cultural sites on the World Heritage List. Apparently, most of humanity is much less familiar with the natural wonders of the Arctic than with such properties of global stature as Mount Everest (World Heritage site of Sagarmatha National Park), for instance. The often relatively barren-looking Arctic nature may also not appear appealing to many, if compared to ecosystems from more southern latitudes. Accordingly, the Arctic nature has not been widely appreciated – or seen as worth being protected by the WHC in any case. On the other hand, even the local indigenous peoples may not always be eager to support World Heritage nominations of Arctic properties – natural or cultural – for the fear that the values they represent to the indigenous communities get compromised. Although the number of Arctic natural properties on the World Heritage List continues to be low, the Tentative Lists of the Arctic states promise some improvement also in this respect. Some of the (above-mentioned) proposed World Heritage sites that reflect Arctic cultural values are mixed sites, in addition to which some properties from the northernmost areas have been listed on the basis of purely natural criteria, such as the Russian Plutorana Plateau and Magadansky State Nature Reserve (both submitted in 2005) and Nature Park “Lena Pillars” (submitted in 2006).
8.3.2 Climate Change Although the changing climate is a global problem, it is a particular threat in the northernmost regions. The Arctic is highly sensitive to the effects of global warming. During the past half a century, the average temperature in the Arctic has risen nearly twice as fast as in other parts of the globe. Such changes have grave damaging potential both as concerns the Arctic ecosystems and the local cultures – including the very few Arctic World Heritage sites that exist. In fact, global warming seems to be the most significant threat today to the Arctic heritage, both natural and cultural. The multiple hazards it poses to the Arctic environment are obvious. Moreover, the links between culture and nature (and thus cultural and natural heritage) are particularly close in the Arctic. There is a specific dependence of the Arctic peoples and their traditional livelihoods on the local environment, and protection of the Arctic against global warming is critical to their well-being and living conditions. For instance, indigenous populations often rely on sea ice for traditional hunting and fishing. (Conclusions and recommendations, 2007, p. 1). From the point of view of the Arctic, there is thus an especially urgent need to combat climate change. Additionally, the changes in the Arctic sea ice and the rise in sea levels influence lower latitudes all over the world. Hence the problems the Arctic is facing because of global warming should be the concern of the rest of the world as well. This should emphasise the importance of protecting the Arctic by nominating Arctic properties as World Heritage sites, among other measures. As
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mentioned above, the deterioration of World Heritage properties as the result of climate change can be considered both an ascertained and a potential danger – which would even warrant their inclusion on the List of World Heritage in Danger.48 The melting of glaciers, for instance, can be seen as constituting an ascertained and a potential danger to World Heritage sites experiencing such changes: global warming is a “specific and proven imminent danger” as well as a major threat “which could have deleterious effects on [the] inherent characteristics” of a site (Operational Guidelines, para. 180). Moreover, climate change is a factor “amenable to correction by human action” (para. 182). This has been acknowledged also by the World Heritage Committee, which has stated that there is no doubt that the enumeration of “serious and specific dangers” under WHC Article 11.4 can include the effects of climate change, despite the lack of explicit reference to them in the relevant provisions (as of yet) (Session reports: 31st Session, 2007, Item 7.1, p. 8).49 Of course, the listing of Arctic properties as World Heritage in Danger would necessitate their inclusion on the World Heritage List first.50 On the other hand, the World Heritage Centre and its advisory bodies themselves have questioned whether sites whose outstanding universal value is threatened by climate change should be inscribed on the World Heritage List at all (Predicting and managing, 2006, para. 50). On balance, the WHC does not appear as a very promising tool for mitigating and adapting to the adverse effects of global warming in the Arctic at the moment. The attention of the majority of humankind in this respect seems to be directed towards other parts of the world instead. For instance, there was recently a large international NGO campaign, backed up by the late Sir Edmund Hillary (Hillary, 2005), for the inclusion of the Nepalese Sagarmatha (Mount Everest) National Park on the List of World Heritage in Danger due to the threat posed to it by global warming (see, e.g., UNESCO: Sir Edmund Hillary’s, 2005). The four Arctic World Heritage sites have not been the object of similar attempts – despite the fact that the rapid shrinking of the Ilulissat Glacier in Greenland has been described as “one of the most alarming examples of global warming in the Arctic region”, for instance (Ilulissat Glacier, 2005). However, an NGO petition similar to that made for the Sagarmatha National
48 See
also Global climate change (2004, pp. 36–37), where the same has been argued as regards the World Heritage site of Great Barrier Reef. The reasoning there goes as far as to argue that the Great Barrier Reef “should be placed on the List [of World Heritage in Danger] on the grounds that the Australian Government has not developed an appropriate and effective response to climate change through ratification of the Kyoto Protocol and a commitment to substantial reduction in greenhouse gas emissions” (para. 115). 49 As mentioned above, the committee is now planning to include even a specific reference to the effects of climate change in the relevant paragraphs of the Operational Guidelines. 50 Occasionally, the placing of a site on the World Heritage List has been accompanied by its immediate inclusion on the In Danger List as well. See Boer (2008, p. 101). The listing of a property on the In Danger List alone is, however, not possible.
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Park has also been made for the “near-Arctic” Waterton-Glacier International Peace Park (US/Canada), because of the risk of losing its glaciers.51
8.3.3 View of the Future The current chair of the Arctic Council, Norway, has stated as one of the aims during its chairmanship the improved management of existing World Heritage sites in the Arctic and the identification and nomination of new ones (Programme for the Norwegian, n.d.). This is one positive indication of the will of the Arctic states to enhance the role of the WHC in the region. Accordingly, Norway included in 2007 the entire Archipelago of Svalbard on its Tentative List as a mixed site.52 The role of the World Heritage Convention in the Arctic was also recently discussed in an International Expert Meeting on World Heritage and the Arctic.53 It is to be expected that filling the gaps for World Heritage nominations of Arctic natural and cultural heritage is no easy task. Although the scientific community and many NGOs are pushing hard for more preservationist policies in the Arctic, resistance by certain key states seems to render many attempts to address the current problems largely ineffective. Adherence to a convention on “world heritage” is clearly not alone enough to guarantee a unified spirit of common natural and cultural heritage of humankind or the protection of such heritage worldwide. In order to build public and political support for more extensive protection measures in the northernmost regions, there seems to be a need to raise general awareness of the Arctic heritage and its importance for the entire humanity. Increased cooperation in scientific research and information-sharing within the Arctic as well as globally is important (see, e.g., Conclusions and recommendations, 2007, p. 4). Furthermore, it would be particularly useful to prepare World Heritage nominations in the Arctic using an integrated approach which considers natural and cultural values, as well as
51 Petitions
have been made to have also three other World Heritage sites put on the In Danger List: the Belize Barrier Reef Reserve System (Belize), the Huascar´an National Park (Peru), and the Great Barrier Reef (Australia). The sixth NGO petition calling for the inclusion of a World Heritage site on the In Danger List was filed with the World Heritage Committee in June 2007. It concerned the Greater Blue Mountains Area in Australia. For more information about all of these petitions, see http://www.climatelaw.org/cases/topic/unesco 52 The nomination was made June 21, 2007. For more information, see http://whc.unesco.org/ en/tentativelists/5161. At the same time, Norway nominated the Island of Jan Mayen and Bouvet as parts of a serial transnational nomination of the Mid-Atlantic Ridge (together with Brazil, Great Britain, Portugal and Iceland). See http://whc.unesco.org/en/tentativelists/5162 53 International Expert Meeting on World Heritage and the Arctic, 30 November–1 December 2007, Narvik, Norway. The meeting was organized by the UNESCO World Heritage Centre, by the Support of the Nordic World Heritage Foundation, Norwegian authorities, and the Prince Albert II of Monaco Foundation for the Environment. It was attended by 27 participants from the eight Arctic countries, in addition to which there we representatives from Arctic indigenous peoples’ organizations, environmental organizations, and world heritage organizations (including ICOMOS and IUCN).
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the interaction between people and their environment. In particular, the indigenous values that potential World Heritage properties hold must be catered for. In addition, indigenous peoples’ traditional lifestyles in the Arctic have often spanned state boundaries in a manner which calls for shared management of transboundary properties. Also many ecosystems and environmental impacts in the Arctic span national boundaries and thus the mere protection of isolated sites can be quite ineffective. (See Conclusions and recommendations, 2007, p. 3). On the other hand, World Heritage properties are not all alike – not even within distinctive regions. They are different in terms of sensitivity and adaptive capacity. This necessitates careful consideration of local needs and opportunities when addressing the challenge of climate change, for instance. (See Predicting and managing, 2006, paras. 80–82.) Experiences from local management responses can and should be shared within a wider context, in order to enable other similar sites to learn from them. In addition to acknowledging geographical similarities in sharing experiences, thematic grouping of sites can be beneficial. For example, archaeological sites may face threats of the same kind in many parts of the world. Local management should also be combined with regional and global strategies. (See Predicting and managing, 2006, para. 105). Accordingly, it has been noted that the Tentative Lists of the Arctic states should be updated and harmonised, and experiences about the preparation of nominations shared between the countries of the region (Conclusions and recommendations, 2007, p. 2). Furthermore, given in particular the strong links between cultural and natural heritage in the Arctic, the local communities – indigenous as well as non-indigenous – and influential sectors should be involved in the conservation of this heritage at all stages of the World Heritage process (see Conclusions and recommendations, 2007, p. 3). For instance, states should always involve in the preparation of their Tentative Lists “a wide variety of stakeholders, including site managers, local and regional governments, local communities, NGOs and other interested parties and partners” (Tentative list, n.d.). Without the support of the local community, the effective management of World Heritage sites can be difficult if not impossible (see Predicting and managing, 2006, para. 92). Unfortunately, there have been several instances involving conflicts between local communities and natural World Heritage properties in particular (Session reports: 31st Session, 2007, Item 9, p. 34 [Progress report by IUCN, April 20, 2007]). The effectiveness of preservation of cultural heritage can also largely depend on the attitude of local stakeholders (Aa, 2005, pp. 91–93). There have been many proposals for new World Heritage nominations covering Arctic natural and cultural sites, including serial and transnational nominations. They take cognisance of also indigenous values, or even build upon them.54 As 54 These include the Viking Culture and Saami Cultural Heritage. For instance, the proposed nom-
ination of Saami Cultural Heritage has been planned to be jointly prepared by the four states with Saami populations (Norway, Sweden, Finland, Russia) and representative organs of the Saami. The nomination should “cover areas best representing the whole range of values (sacred sites, burial grounds, archaeological evidence and cultural landscapes reflecting traditional use and practices such as reindeer herding)” (Conclusions and recommendations, 2007, pp. 2–3).
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mentioned above, several new Arctic properties have already been placed on states’ Tentative Lists. Apparently, the efforts to fill the gaps of the World Heritage List in this respect are thus proving at least somewhat effective. If states so wish, the WHC system can also be easily adjusted so as to promote the nomination of properties of certain kind: the selection criteria of the Operational Guidelines are regularly revised by the World Heritage Committee. The entire concept of World Heritage is thus not a fixed but an evolving one. This is a characteristic particularly valuable in the rapidly changing world in which we live today. The selection criteria could be made increasingly receptive to the qualities of potential Arctic World Heritage properties, if Parties to the WHC so wanted. It has even been argued that the obligation of the WHC to “take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation” of world heritage would require that States that are Parties to the WHC also adopt other international legal instruments which support the principles of the WHC (Global climate change, 2004, p. 19). This may again be a somewhat disputable interpretation. However, far less debatable is the general requirement of the international law of treaties that states must perform in good faith obligations imposed upon them by international treaties. Accordingly, states must be sincere in their efforts to advance the goals of the WHC (i.e., protect and conserve World Heritage properties). Global warming is a major threat to World Heritage sites and it can be effectively mitigated only by international cooperation. It can thus well be argued that the objectives of the WHC necessitate action not merely at the level of particular World Heritage sites or within the framework of the WHC alone but also cooperation within a wider international context. In addition to the challenging goal of directly reducing the adverse effects of climate change, many World Heritage sites themselves can be made increasingly resilient to environmental changes. One way to do this is to surround the sites with protection zones. First of all, a management plan of a World Heritage property should cover an area which is necessary for maintaining the ecological integrity of the site and enables it to function effectively. (Management planning, 2007, p. 19).55 A site may nevertheless be influenced detrimentally by activities outside its boundaries. Therefore it can be necessary to surround it with additional buffer zones, not part of the World Heritage property (Operational Guidelines, para. 107).56 Pursuant to the Operational Guidelines, “a buffer zone is an area surrounding the nominated property which has complementary legal and/or customary restrictions placed on its use and development to give an added layer of protection to the property” (para. 104); “an adequate buffer zone should be provided” . . . “[w]henever necessary for the proper conservation of the property” (para. 103). Accordingly, numerous World 55 For this purpose, the Operational Guidelines define “Boundaries of Effective Protection” (paras.
99–102). 56 Although such buffer zones do not belong to the site, modifications to the buffer zone of a prop-
erty inscribed on the World Heritage List “should be approved by the World Heritage Committee” (Operational Guidelines, para. 107).
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Heritage sites have a buffer zone to protect the core area of the site (Management planning, 2007, p. 20). In fact, the reason for not proposing a buffer zone for a site must be explicitly stated in its nomination (para. 106).57 In respect of the threat of climate change, buffer zones can help by removing other than climatic stresses and thus increase resilience of World Heritage sites (see Predicting and managing, 2006, para. 118 and “Box 11”; Management planning, 2007, pp. 19–20). Where natural World Heritage properties are concerned, other possible measures to enhance adaptive capacity include “ecological corridors” which species can use to migrate between protected areas. Natural World Heritage sites as well as other protected areas should indeed always be considered as parts of a larger ecosystem, in order to safeguard their viability. (See Facing the threat, 2006; Predicting and managing, 2006, para. 114). Unfortunately, the protection of World Heritage sites from the detrimental effects of global warming is typically very expensive. Even where affordable and feasible technical solutions to problems posed by climate change to a particular World Heritage site are available, they may entail negative impacts on the conditions of the integrity of the site (Predicting and managing, 2006, para. 115). Whatever the means used, it is of utmost importance that threats to the extremely fragile Arctic environment are addressed in a precautionary manner. The WHC, which was adopted more than three decades ago, has been described as an “early attempt by the international community to implement the ‘precautionary approach’ of environmental protection” (Global climate change, 2004, pp. 16–17).58 The precautionary approach is a key element of the idea of sustainable development, i.e., development that “meets the needs of the present generation without compromising the ability of future generations to meet their own needs”.59 The essence of the WHC is the “transmission to future generations of the cultural and natural heritage” (Art. 4). It has also been argued that the WHC “mandates the adoption of measures designed to prevent the deterioration of world cultural and natural heritage notwithstanding that, at the time of their adoption, such measures may have no immediate protective effect”.60 Most importantly, the World Heritage Committee has increasingly emphasised sustainability in respect of world heritage. The current Operational Guidelines note 57 Also
internal zoning (within a World Heritage site) can be used. See Management planning (2007, p. 20). 58 Generally, the emergence of the idea of anticipatory preventive action, the “precautionary principle” or “precautionary approach”, can be seen in multilateral treaty law since the 1980s. 59 This is the definition given in the well-known report “Our Common Future” of the Brundtland Commission in 1987 (Our common, 1987, Section “From One Earth to One World”, para. 27). The report explained further that “[i]n essence, sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations” (Part I, Chapter 2 “Towards Sustainable Development”, para. 15). 60 Pursuant to this reasoning, Article 4 of the WHC is said to be “primarily one of conduct rather than result” (Global climate change, 2004, p. 25).
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that “[t]he protection and conservation of the natural and cultural heritage are a significant contribution to sustainable development” (para. 6). It is also explicitly recognised that “World Heritage properties may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable”, as long as these uses do not “adversely impact the outstanding universal value, integrity and/or authenticity of the property” (para. 119). The World Heritage Committee has, moreover, stated that it will consider incorporating explicit reference to the precautionary approach in the Operational Guidelines when they are next revised. The committee wants to encourage states and its own advisory bodies “to use the emerging knowledge relating to the implementation of the precautionary approach to deal more actively with risk and uncertainty when making decisions concerning the effects of climate change on World Heritage properties”. (Session reports: 31st Session, 2007, Item 7.1, pp. 9–10.) For instance, it is essential that the precautionary principle be incorporated into the management plans of all World Heritage sites (Management planning, 2007, p. 17).61 The IUCN has suggested that attention in general should gradually be focused on improving the management of existing World Heritage sites, instead of the question of new nominations (WHL: Future priorities, 2004, p. 14). However, the primary problem from the point of view of the Arctic still is the fact that there are so few sites from the northernmost regions on the World Heritage List in the first place; mere improved management of these sites can in no way amend the lack of Arctic World Heritage properties. Even if the now existing World Heritage sites in the Arctic were completely destroyed, the effect of that on the entire World Heritage (the total of 851 properties at the moment) would be very small, at least numerically speaking. What, if any, can the role of the World Heritage Convention then be in respect of natural and cultural heritage not contained in the lists of the WHC system? It is important to note that the WHC does not purport to create natural or cultural world heritage – it merely creates a system where properties falling into the category of world heritage of outstanding universal value can be identified and afforded special protection. Accordingly, the World Heritage Committee also cannot decide that a property is a world heritage of outstanding universal value; it merely verifies the existence of such value on the basis of the criteria established by the World Heritage system. The inscription of a property on the World Heritage List is thus declaratory, not constitutive: the outstanding universal value of a property is “a precondition for, and not the result of, the inscription”. (Lenzerini, 2008, p. 215). However, a prerequisite for such inscription is that the state within whose territory the valuable property is situated suggests its inclusion on the World Heritage List. It may well be that a state (for one reason or another) decides to disregard a certain property despite
61 This
document also suggests that when considering the objectives of World Heritage management, the concept of “Limits of Acceptable Change” should be taken into account. Such an approach would enable the identification of thresholds of sustainability which cannot be exceeded (Management planning, 2007, p. 17).
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the fact that it has qualities which could justify its inclusion on the list – provided that the World Heritage Committee only received a proposal to that end. In effect, the World Heritage List is thus merely a sample, not an exhaustive collection, of the world’s cultural and natural heritage of outstanding universal value – which thus consists of also other properties than those included on the WHC lists. The objective of the WHC, however, is not to protect only those sites included on the List of World Heritage at a given moment but to establish an international framework for the preservation of the whole of natural and cultural heritage of the world that is of outstanding universal value. This framework, moreover, builds upon a precautionary approach. But how to protect the heritage not placed on the World Heritage List? The WHC itself has foreseen this problem. Pursuant to Article 12, “[t]he fact that a property belonging to the cultural or natural heritage has not been included in either of the two lists mentioned in paragraphs 2 and 4 of Article 11 shall in no way be construed to mean that it does not have an outstanding universal value for purposes other than those resulting from inclusion in these lists”. Or as one author has put it, “a cultural or natural property may be of outstanding universal value, being thus included within the scope of the Convention ratione materiae even in the event that it is not inscribed either in the World Heritage List [Art. 11.2] or in the List of World Heritage in Danger [Art. 11.4]” (Lenzerini, 2008, p. 202). This is particularly relevant as concerns properties which have been inscribed on a state’s Tentative List, as such inscription provides a preliminary indication of the outstanding universal value of a property. At least the territorial state has thereby demonstrated its opinion that the property fulfils the selection criteria of the WHC and merits nomination as world heritage. Accordingly, it should respect the obligations of the convention with regard to such properties.62 Hence even properties that are not included on the World Heritage List do not necessarily fall entirely out of the protection afforded by the WHC. Of course, the “official”, nominated World Heritage sites are at the heart of the World Heritage system. Nevertheless, Parties to the WHC are under the obligation to “do their best” to further the objectives of the convention also beyond the current World Heritage List where properties of outstanding universal value are concerned.63 Article 12 means that States that are Parties must respect the “obligations of general character” included in the WHC “even with regard to those cultural or natural properties which, although not included in any of the two lists established by Article 11, objectively satisfy the conditions and requirements for being considered of outstanding universal value pursuant to articles 1 and 2”. It has been proposed that such obligations include at least those found in Articles 4 to 6 of the convention. (Lenzerini, 2008, pp. 204–205).
62 For
a more detailed treatment, see Lenzerini (2008, pp. 212–214), where it is argued that the inscription of a property on a national Tentative List could already entail “a form of international recognition” enough to make the property the object of protection of the WHC. 63 See also Global climate change (2004, p. 25).
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Consequently, states have the primary duty “of ensuring the identification, protection, conservation, presentation and transmission to future generations” of even unlisted cultural and natural heritage of outstanding universal value situated on their territory (Art. 4). They must “do all [they] can to this end, to the utmost of [their] own resources” and with international assistance where appropriate and available (Art. 4). They must also “endeavor, in so far as possible, and as appropriate for each country” to comply with the more detailed requirements of Article 5 aimed at ensuring that “effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage”. Furthermore, pursuant to Article 6, states must recognise that all heritage of outstanding universal value – i.e., also that not included in the lists of the WHC – “constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate” and which they are not allowed to deliberately damage directly or indirectly. The provisions that Article 12 relates to are, however, not very precise ones. Hence their translation into specific practical requirements can be difficult. It is also not easy to identify whether a particular property not included on the World Heritage List is of outstanding universal value (and thus entitled to the protection ensuing from Article 12), given that this identification can only be made by the World Heritage Committee. Consequently, Article 12 can only be invoked in respect of properties that are rather undeniably of outstanding universal value but for some reason nevertheless not inscribed on the World Heritage List (yet). Even in those cases the practical effect of the article may be limited to a ban on acting in ways that “are manifestly at odds with the purposes of the [WHC]”. (Lenzerini, 2008, pp. 206–207). In principle, world heritage of outstanding universal value is all inherently equally important, regardless of whether it is placed on the World Heritage List or not (Lenzerini, 2008, p. 215). In practice, effective protection is granted merely to properties that are on the list. The role of Article 12 on the preservation of world heritage has thus been modest.64 One can hope that the WHC is nevertheless able to operate as a “catalyst for increased national actions to support a culture of conservation” also beyond the List of World Heritage (Cameron, 2005, p. 7). Where the Arctic is concerned, the mere existence of Article 12 in the WHC is at least somewhat comforting. Thanks to this article, the nearly complete absence of Arctic properties from the World Heritage List does not mean that Parties to the WHC would not be – in principle at least if not in practice – under an obligation to act also in respect of some Arctic sites in a manner consistent with the general requirements of the WHC. Moreover, as the outstanding universal value of many Arctic properties has in all likelihood not been recognised yet, there is an obvious need to exercise precaution when it comes to the Arctic heritage – harming potential Arctic properties of outstanding universal value can severely compromise the role of the WHC as an instrument for the preservation of balanced and representative world heritage for future generations. Also the WHC system itself has increasingly
64 See
Lenzerini (2008, pp. 207–214) for a more detailed assessment of the effectiveness of obligations arising from WHC Article 12.
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emphasised the precautionary approach. Of course, “it is not intended that the [World Heritage] List should be completely representative of the earth’s entire cultural and natural heritage as this would be contrary to the concept of outstanding universal value” (World Heritage List [WHL]: Guidance, 2006, p. 1). However, it has been clearly stated that the Arctic is under-represented on the World Heritage List. This must mean that there exist also other heritage properties of outstanding universal value in the Arctic than those currently listed as World Heritage sites.
8.4 Concluding Remarks The World Heritage Convention has a relatively minor role in the Arctic at the moment, due to the simple reason that there are very few Arctic properties on the List of World Heritage. The Tentative Lists of the Arctic states promise some improvement for the future in this respect. The inclusion of more Arctic properties on the World Heritage List would obviously enhance the possibilities to use the WHC for addressing the different kinds of threats the cultural and natural heritage of the northernmost regions is facing. For instance, the WHC system is one tool available for mitigating and adapting to the adverse effects of the warming climate, which are particularly significant in the Arctic. At the end of the day, it is always up to the States that are Parties to the World Heritage Convention to decide what kind of heritage they want to preserve and protect by this instrument, however. It may be that states are not sufficiently interested in the Arctic natural and cultural heritage to establish selection criteria that acknowledge the kind of values manifested by it, propose its inclusion on the World Heritage List, and/or support such nominations in the World Heritage Committee. States can also fail to adjust the WHC system in accordance with the changing climate, and it may thus be incapable of providing adequate protection to World Heritage sites. In any case, if the Arctic natural and cultural heritage is not afforded protection and is severely damaged or destroyed altogether, there will certainly be a significant deficiency in the heritage which is passed on to the generations to come.
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Jokilehto, J. (2006). Considerations on authenticity and integrity in World Heritage context. City and Time, 2(1). Retrieved June 22, 2008, from http://www.ct.ceci-br.org/novo/ revista/viewarticle.php?id=44&layout=html Lenzerini, F. (2008). Article 12: Protection of properties not inscribed on the World Heritage List. In F. Francioni (Ed.), with the assistance of F. Lenzerini, The 1972 World Heritage Convention: A commentary (pp. 201–218). Oxford: Oxford University Press. Management planning for World Heritage properties: A resource manual for practioners (draft report). (2007, June). IUCN. Measures to counter effects of climate change on natural and cultural World Heritage sites. (2006). Retrieved June 22, 2008, from http://portal.unesco.org/culture/en/ev.phpURL ID=30347&URL DO=DO TOPIC&URL SECTION=201.html Nordic World Heritage Foundation website at http://www.nwhf.no (retrieved June 22, 2008). Oman’s Arabian Oryx sanctuary: First site ever to be deleted from UNESCO’s World Heritage list. (2007, June 28). Retrieved June 22, 2008, from http://whc.unesco.org/en/news/362 Operational guidelines for the implementation of the World Heritage Convention. (1977, October 20). UNESCO. Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage. CC-77/CONF.001/8 Rev. Retrieved June 22, 2008, from http://whc.unesco.org/archive/opguide77b.pdf Operational guidelines for the implementation of the World Heritage Convention. (2005, February 2). UNESCO. Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage. World Heritage Centre. WHC. 05/02. Retrieved July 7, 2008, from http://whc.unesco.org/archive/opguide05-en.pdf Operational guidelines for the implementation of the World Heritage Convention. (2008, January). UNESCO. Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage. World Heritage Centre. WHC. 08/01. Retrieved June 22, 2008, from http://whc.unesco.org/archive/opguide08-en.pdf Our common future. (1987, August 4). Report of the World Commission on Environment and Development (Brundtland Report). UN Doc. A/42/427. Retrieved June 22, 2008, from http://www.un-documents.net/wced-ocf.htm Petition of the Forum of Indigenous Peoples. (2000, November 24). Submission to the World Heritage Committee from a Forum of Indigenous People assembled in Cairns, Australia. Session reports: 24th Session, 2000, Annex V. Predicting and managing the effects of climate change on World Heritage. (2006). A joint report from the World Heritage Centre, its Advisory Bodies, and a broad group of experts to the 30th Session of the World Heritage Committee, Vilnius. Retrieved June 22, 2008, from http://whc.unesco.org/uploads/news/documents/news-262-1.doc Programme for the Norwegian chairmanship of the Arctic Council 2006–2008. (n.d.). Retrieved June 22, 2008, from http://arctic-council.org/filearchive/AC Programme 2006-2008.pdf Red Shirt, D. (2002, May 15). Presentation at Cultural Heritage and Sacred Sites: World Heritage from an Indigenous Perspective, New York University. Transcript from audiotape by MarieDanielle Samuel. Retrieved June 22, 2008, from http://www.dialoguebetweennations.com/ N2N/PFII/English/DelphineRedShirt.htm Redgwell, C. (2008). Article 2: Definition of natural heritage. In F. Francioni (Ed.), with the assistance of F. Lenzerini, The 1972 World Heritage Convention: A commentary (pp. 63–84). Oxford: Oxford University Press. Report on the proposed World Heritage Indigenous Peoples Council of Experts (WHIPCOE). (2001, June 14). Bureau of the World Heritage Committee, 25th Session, Paris, UNESCO Headquarters, Room X, 25–30 June 2001. WHC-2001/CONF.205/WEB.3. Retrieved June 22, 2008, from http://whc.unesco.org/archive/whc-01-205-web3e.pdf Session reports of the World Heritage Committee – 31st Session, Christchurch, New Zealand, 23 June–2 July 2007. – Item 7.1 of the Provisional Agenda: Issues related to the state of conservation of World Heritage properties: the impacts of Climate Change on World Heritage properties.
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WHC-07/31.COM/7.1. Retrieved June 22, 2008, from http://whc.unesco.org/archive/ 2007/whc07-31com-71e.pdf – Item 9 of the Provisional Agenda: Discussion on the Outstanding Universal Value. WHC07/31.COM/9. Retrieved June 22, 2008, from http://whc.unesco.org/archive/2007/whc0731com-9e.pdf – 29th Session, Durban, South Africa, 10–17 July 2005. – Decision 29COM 7A.29: Cologne Cathedral (Germany) (C 292rev). WHC05/29.COM/22. Retrieved June 22, 2008, from http://whc.unesco.org/archive/2005/whc0529com-22e.pdf#decision.7A.29 – INF.9A: Background paper prepared by the World Heritage Centre on the occasion of the Expert meeting on the concept of outstanding universal value (Kazan, Russian Federation, 6–9 April 2005). WHC-05/29.COM/INF.9A. Retrieved June 22, 2008, from http://whc.unesco.org/archive/2005/whc05-29com-inf09Ae.pdf – INF.9B: Keynote speech by Ms Christina Cameron and presentations by the World Heritage Centre and the Advisory Bodies. WHC-05/29.COM/INF.9B. Retrieved June 22, 2008, from http://whc.unesco.org/archive/2005/whc05-29com-inf09Be.pdf – 25th Session, Helsinki, Finland, 11–16 December 2001. WHC-01/CONF.208/24. Retrieved June 22, 2008, from http://whc.unesco.org/archive/2001/whc-01-conf208-24e.pdf – 24th Session, Cairns, Australia, 27 November–2 December 2000. WHC-2000/CONF.204/21. Retrieved June 22, 2008, from http://whc.unesco.org/archive/repcom00.htm. (Annex V is available at http://whc.unesco.org/archive/repcom00-annexes.htm [retrieved June 22, 2008]). – 22nd Session, Kyoto, Japan, 30 November–5 December 1998. Item 10 of the Provisional Agenda: Progress Report, Synthesis and Action Plan on the Global Strategy for a representative and credible World Heritage List. WHC-98/CONF.203/12. Retrieved June 22, 2008, from http://whc.unesco.org/archive/98-203-12.pdf – 20th Session, Merida, Mexico, 2–7 December 1996. WHC-96/CONF.201/21. Retrieved June 22, 2008, from http://whc.unesco.org/archive/repcom96.htm#774 State of the parks: A resource assessment. (2002, November). Waterton-Glacier International Peace Park, National Parks Conservation Association. Retrieved June 22, 2008, from http://www.npca.org/stateoftheparks/glacier/glacier.pdf State of the World Heritage in Europe. (2005). Section I, WHC-05/29.COM/INF.11B. Retrieved June 22, 2008, from http://whc.unesco.org/archive/2005/whc05-29com-inf11Be.pdf Tentative list. (n.d.). UNESCO. Retrieved June 22, 2008, from http://whc.unesco.org/en/ tentativelist Titchen, Sarah. (2002, May 15). Presentation at Cultural Heritage and Sacred Sites: World Heritage from an Indigenous Perspective, New York University. Transcript from audiotape by Marie-Danielle Samuel. Retrieved June 22, 2008, from http://www. dialoguebetweennations.com/n2n/pfii/english/SarahTitchen.htm UNESCO adopts climate change strategy for World Heritage sites. (2006, July 11). Environment News Service. Retrieved June 22, 2008, from http://www.ens-newswire.com/ens/jul2006/200607-11-01.asp UNESCO report recommends the construction of a tunnel instead of a bridge in Dresden World Heritage site. (2008, March 7). UNESCOPRESS. Retrieved June 22, 2008, from http://portal.unesco.org/en/ev.php-URL ID=42035&URL DO=DO TOPIC&URL SECTION=201.html UNESCO: Sir Edmund Hillary’s statement. (2005, July 7). Climate Justice Programme. Retrieved June 22, 2008, from http://www.climatelaw.org/media/2005Jul07 Values of the Arctic protected areas: A summary. (2004). Parks Canada on behalf of the Conservation of Arctic Flora and Fauna Program. Ottawa, Canada. Vienna Convention on the Law of Treaties. Adopted 23 May 1969, in force 27 January 1980. 1155 UNTS 311. Retrieved June 22, 2008, from http://untreaty.un.org/ilc/texts/instruments/english/ conventions/1 1 1969.pdf World Heritage Committee fails to act. (2006, July 20). Belize Institute of Environmental Law and Policy, Friends of the Earth International, the Climate Justice Programme and Greenpeace. Retrieved June 22, 2008, from http://www.climatelaw.org/media/2006Jul20
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World Heritage List. (WHL). (n.d.). UNESCO. Retrieved June 22, 2008, from http://whc.unesco.org/en/list The World Heritage List (WHL): Future priorities for a credible and complete list of natural and mixed sites. (2004, April). A Strategy Paper prepared by IUCN. Retrieved June 22, 2008, from http://whc.unesco.org/uploads/activities/documents/activity-504-3.pdf The World Heritage List (WHL): Guidance and future priorities for identifying natural heritage of potential outstanding universal value. (2006, May 15). Paper prepared by IUCN (draft). Retrieved June 22, 2008, from http://www.iucn.org/themes/wcpa/ pubs/pdfs/heritage/ouv2006 english.pdf Yusuf, A. A. (2008). Article 1: Definition of cultural heritage. In F. Francioni (Ed.), with the assistance of F. Lenzerini, The 1972 World Heritage Convention: A commentary (pp. 23–50). Oxford: Oxford University Press.
Chapter 9
Rethinking the Status of Indigenous Peoples in International Environmental Decision-Making: Pondering the Role of Arctic Indigenous Peoples and the Challenge of Climate Change Leena Hein¨am¨aki
Abstract Global environmental problems – climate change being a major one – pose challenges to state-controlled international governance in many ways. One of the inherent limitations of present international law – particularly from the viewpoint of indigenous peoples – relates to international decision-making concerning the environment. The focus of this article is the rights and role of indigenous peoples in this context. The problem of climate change, particularly in relation to Arctic indigenous peoples has been taken as a special case. The aim of this article is to show how impacts of climate change threaten many fundamental human rights of indigenous peoples, particularly in the Arctic area. However, as will be discussed, traditional human rights mechanisms are not necessarily capable of offering effective protection of the rights of indigenous peoples against global environmental interference such as climate change. For this reason, the aim of this article is to examine the possibilities for indigenous peoples to participate in international environmental decision-making. One interesting and a unique exception to the general NGO model is found in the structure of the Arctic Council. The model of the Arctic Council in relation to indigenous peoples will be studied in this article, keeping in mind the possibilities of also using this model in other international environmental regimes.
9.1 Introduction Thus far, global climate change has been felt most intensively in the Arctic area. The average Arctic temperature has risen twice as much as the average global temperature in the past few decades (Arctic Climate Impact Assessment [ACIA], 2005). The United Nations Intergovernmental Panel on Climate Change ([IPCC],
L. Hein¨am¨aki (B) Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Finland, Lapin yliopisto, Arktinen Keskus, PL 122, 96101 Rovaniemi, Finland e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 9,
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2007) has predicted that temperatures will increase in the Arctic by 5–7 degrees by 2099, whereas the predicted temperature rise for the Earth as a whole is 2–4.5 degrees. The Arctic Climate Impact Assessment (ACIA) – a comprehensive international evaluation of Arctic climate change and its impact undertaken by hundreds of scientists – points to dramatic changes in the Arctic environment and nature-based way of life of Arctic indigenous peoples due to the impact of global climate change. According to the ACIA, over the next 100 years, climate change is expected to accelerate, contributing to major physical, ecological, social and economic changes, many of which have already begun. Many of the environmental changes studied and predicted by the ACIA are already having a direct impact on the traditional way of life of Arctic indigenous peoples. Indigenous peoples throughout the Arctic area depend on the land and the sea for food and income, and traditional activities such as hunting, fishing, gathering and reindeer herding are vitally important for indigenous society and culture (ACIA, 2005, p. 4). Particularly in danger is the hunting culture of many Arctic indigenous peoples, but climate change will also affect other traditional livelihoods. For Arctic indigenous peoples, global climate change is an important human rights issue due to their traditional, nature-based way of life, which is often considered to be the crux of the culture of indigenous peoples.1 For this reason Sheila Watt-Cloutier, the former president of the Inuit Circumpolar Council (ICC), an organization representing Inuit people in four Arctic states,2 has filed a petition against the United States in the Inter-American Commission on Human Rights for the damage that global climate change is causing to the Inuit and their rights. The Inuit petition is the first – and so far the only – human rights case involving climate change to be brought before an international human rights body. The first part of this article explores the petition with the aim of showing how the present impacts of climate change are already making Arctic indigenous peoples particularly vulnerable by infringing many of their important human rights. However, as will be discussed in the first part of this article, human rights monitoring bodies are hardly able to cope with the issue of global climate change, which contains many uncertain factors with respect to issues of causality and responsibility. This article views the Inuit petition, more than anything else, as a powerful attempt to make an indigenous Arctic voice be heard. As will be shown in the article, the official Inuit policy behind the petition has been to bring their case to the consciousness of decision-makers and the general public with the idea of influencing the international decision-making concerning climate change. The petition can thus
1
Indigenous peoples often live in the most vulnerable ecosystems, such as in areas of high biological diversity or in the stark Arctic regions. According to estimates made in 1990, around 200 million of the world’s 300 million indigenous people live in vulnerable ecosystems. See Report of the Commission on Human Rights at its forty-sixth session (Commission on Human Rights [CHR], 1990. p. 8). 2 Alaska (USA), Canada, Greenland (Denmark) and the Russian Federation.
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be seen as an attempt on the part of Arctic indigenous peoples to mitigate global climate change. However, besides the fact that climate change, while fundamentally different from local environmental problems, seems to be too challenging for human rights monitoring bodies to cope with, another problem of climate change is that its consequences are often irreversible. Therefore, the participation of Arctic indigenous peoples in international decision-making concerning climate change (and other global environmental problems) is crucial. The second part of the article attempts to show that already established international human rights, as well as recent developments concerning the right to self-determination of indigenous peoples, clearly recognize the right of indigenous peoples to participate effectively in all decisions that directly affect them. This does not, however, hold true in international decision-making concerning the environment. The question of who can participate in the making of international law is traditionally seen as rather clear. Whereas states, as the primary subjects of international law, create international legal rules and principles, indigenous peoples are able to participate in international norm-making concerning the environment with the status of non-governmental organizations (NGOs). Along with other NGO groups participating in the international policy-making process, organizations of indigenous peoples, however, have only limited possibilities to influence the process and make their voices heard. This article, however, claims that states, insofar as they have committed themselves to international human rights guaranteeing the effective participation of indigenous peoples, are under a legal obligation to strengthen the participatory status of indigenous peoples in international environmental decision-making. There can be many ways for states to realize this commitment. The main focus of the third part of the article is to introduce one interesting and quite unique model that can be found in the structure of the Arctic Council, which is a soft-law organization of the eight Arctic states the aim of which is to protect the Arctic environment. In the Arctic Council, Arctic indigenous peoples have the status of ‘permanent participants’, which means that they are participating at the ministerial level and are allowed to make proposals and suggestions for the final decisions. This article suggests that the model of the Arctic Council could be used in other international environmental regimes in order to find a way to strengthen the role of indigenous peoples in international environmental decision-making. The article also considers the possibilities of the UN Permanent Forum on Indigenous Issues to be engaged in international environmental regimes through the permanent participation model in order to represent the views of indigenous peoples. Since the consequences of climate change are being felt at present most severely in the Arctic area, Arctic indigenous peoples should be strongly represented through the permanent participant model in order to have an influence on the mitigation of climate change, as well as to improve their adaptive capacities against the dramatic changes their way of life is facing. Despite the specific Arctic focus, the article will study the possibilities to strengthen the participatory rights and status of all indigenous peoples since it is
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only by influencing the general participatory rights of all indigenous peoples that the Arctic indigenous peoples can have an influence on climate change mitigation and adaptation policies at various levels of governance. If Arctic indigenous peoples are to influence global environmental processes, they need to act in concert with other indigenous peoples to push for this change of status in indigenous peoples’ participatory rights. The Arctic indigenous peoples have been at the forefront not only because climate change already threatens their basic human rights, but also because they have gained strong participatory rights in the Arctic Council as permanent participants. This article suggests that because of this experience, Arctic indigenous peoples will be crucial actors in pushing for stronger participatory rights in climate regime and other international environmental processes and, in this way, increasing their own possibilities to mitigate and adapt to climate change.
9.2 The Inuit Petition Against the United States According to the Inuit petition against the United States filed with the InterAmerican Commission on Human Rights on December 7, 2005, the impact of climate change caused by acts and omissions of the United States violates the Inuit’s fundamental human rights, which are protected by the American Declaration of the Rights and Duties of Man and other international instruments. The petition reminds the Commission that the United States is the world’s largest contributor to global warming, which is having a damaging effect on the Inuit. As the world’s largest consumer of energy, both historically and at present, the United States consumes the most fossil fuels and is responsible for the largest amount of cumulative emissions of any nation on Earth (Petition to the Inter American [Inuit petition], 2005, p. 103). On November 16, 2006, the Commission rejected the Inuit petition, stating that ‘the information provided does not enable us to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration (The Inter-American Commission on Human Rights [IACHR], 2006). Following a request of the petitioners (Request for Hearing, 2007), the Inter-American Commission decided to hold a public hearing to gather more evidence on the link between global warming and human rights (The Response of the Inter-American, 2007). The request of the petitioner, however, modestly states, ‘We are aware that the Commission has dismissed that petition and do not seek here to reopen that decision’ (Request for Hearing, 2007). At the time of writing of this article, the Commission has not published its present intentions concerning the case. Granting a hearing does not mean that it will allow the petition to be considered. Consideration of the petition is doubtful especially since the Commission rejected the case in the first place. On the other hand, new evidence may convince the Commission to consider the case, which again does not mean that the case will be regarded as
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meritorious.3 Taking into account the exceptional circumstances of the petition, one possible option for the Commission would be to find the case manifestly ill-founded (IACHR, 2000, art. 34b). The idea of the first part of this section is to discuss how the petitioner has articulated the violations of specific human rights in relation to the implications of climate change. This importantly shows how climate change has direct and dramatic impacts on many important human rights of Arctic indigenous peoples.4 The second part of the section discusses the Inuit policy behind the petition to illustrate how the petition seeks the very goal that has been emphasized in this article: extended participatory rights for the Inuit and other indigenous peoples in international environmental decision-making. The Inuit petition relies greatly on the ACIA and uses the assessment as a scientific basis for the petition. The petition points out that because average annual Arctic temperatures are increasing more than twice as fast as temperatures in the rest of the world, climate change has already had serious impacts in the Arctic, including the deterioration of ice conditions, a decrease in the quantity and quality of snow, changes in the weather and weather patterns, and a transfigured landscape as permafrost melts at an alarming rate, causing slumping, landslides, and severe erosion in some coastal areas (Petition to the Inter-American, 2005, p. 2). For instance in the village of Shishmaref in Alaska, many of the houses owned by local Inuit have been badly damaged and partly fallen into the sea due to erosion and a rise in sea-level (Willis, 2004). Inuit observations and scientific studies consistently document many kinds of environmental changes. Importantly, the ACIA contains a chapter related to
3
For more details concerning the rules of procedure, see Doelle (2005, pp. 231–235). One important procedural question in this case relates to the requirement for the exhaustion of domestic remedies. Article 31.1 of the Commission’s rules of procedure state: ‘In order to decide on the admissibility of a matter, the Commission shall verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognized principles of international law.’ Furthermore, Article 31.2(a) continues, saying that the exhaustion requirement ‘shall not apply when [. . .] the domestic legislation of the State concerned does not afford due process of law for protection of the rights that have allegedly been violated.’ The Inuit petition argues that there are no remedies ‘suitable to address [the] infringement’ of the rights the petitioner alleges to have been violated in this case. Therefore, according to the petition, the requirement that domestic remedies be exhausted does not apply in this case and the petition is admissible under the rules of procedure of the Commission (Inuit petition, p. 112). The petition then goes through possible available domestic remedies, such as the U.S. Constitution, U.S. tort laws and environmental laws, trying to show that they are not adequate as far as the rights alleged to have been violated in the petition are concerned. It investigates how the U.S. Constitution is not able to protect the rights to life, residence and movement, property, the inviolability of the home, or culture in the case of global climate change (Inuit petition, pp. 112–116). According to Article 31 of the rules of procedure, it is up to a state to demonstrate to the Commission that the suitable remedies under domestic law have not been previously exhausted (IACHR, 2000, art. 31.3). 4 Climate change also dramatically affects the lives and rights of other indigenous peoples besides those in the Arctic. For instance, indigenous peoples in tropical rainforests or on islands are particularly in danger (Salick & Byg, 2007).
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indigenous traditional knowledge and indigenous peoples’ observations of climate change (ACIA, 2005, pp. 61–98). The Inuit petition was submitted by Sheila Watt-Cloutier, the president of the ICC at the time, ‘with the support of the Inuit Circumpolar Conference’,5 on behalf of all the Inuit of the Arctic regions of the United States and Canada; it is signed by 62 people in addition to Watt-Cloutier (Inuit petition, 2005, p. 1).6 According to the petition, several principles of international law guide the application of the human rights issues in this case. Most directly, the United States is obligated by its membership in the Organization of American States and its acceptance of the American Declaration of the Rights and Duties of Man to protect the rights of the Inuit (Ibid., p. 5). The United States is not a party to the American Convention on Human Rights (1969), so the Convention cannot be applied to this case.7 The American Declaration is nevertheless regarded as having become a legally binding instrument through so-called double-incorporation. This means in practice first of all that the Declaration became part of the Statute of the InterAmerican Commission on Human Rights in 1960 when the legal status of the Commission was unclear. Secondly, the Inter-American Commission itself became part of the OAS Charter in 1970.8 Additionally, the Inter-American Commission
5
The present name of the organization is ‘Inuit Circumpolar Council’. According to the rules of procedure of the Commission, any person, group of persons or nongovernmental entity may submit a petition as long as the petition involves an alleged violation of a human right recognized under the IAHR regime (IACHR, 2000). Although there is no explicit territorial limitation in the Declaration, the Inter-American Commission on Human Rights infers a limitation similar to the one spelled out in Article 1(1) of the Convention: ‘The State Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free exercise of those rights and freedoms.’ (InterAmerican Commission on Human Rights [IACHR], para. 17). Generally, human rights provisions appear to be primarily directed at State action against their own citizens (Donnelly, 1998, p. 1). On the contrary, as maintained by Doelle (2005, p. 232), there may be cases – transboundary or global environmental problems, for instance – where there is no reason to limit the application of international human rights law only to violations by a State against its own citizens, especially if there are no means for the citizens’ own State to protect its citizens from the harm, or the State does not exert the means to protect its citizens. The Inter-American Commission has also importantly stated that it ‘[d]oes not believe [. . .] that the term “jurisdiction” in the sense of Article 1(1) is limited to or merely coextensive with national territory. Rather, the Commission is of the view that a state party to the American Convention may be responsible under certain circumstances for the acts and omissions of its agents which produce effects or are undertaken outside that state’s own territory.’ (IACHR, 1998). Therefore it seems that the Commission recognizes that in certain circumstances states must protect the rights of peoples outside their territory from the effects of acts or omissions by their agents (Wagner & Goldberg, 2004, p. 2). It can thus be cautiously assumed that the Commission could, if other criteria are fulfilled, study the Inuit petition in relation to the Inuit in Canada. 7 If the accused state is party to the American Convention on Human Rights, that document, the Statute of the IACHR, and its rules of procedure establish jurisdiction and procedure. 8 The Protocol of Buenos Aires, which revised the Charter of the Organization of American States (OAS), entered into force in 1970. It was signed on February 27, 1967 (See also Buergenthal, 1975, p. 828). 6
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has regarded the Inter-American Declaration as legally binding in its case practice (Cassel, 2000, p. 397). The aim of this section is to discuss the main legal basis of the Inuit petition – the American Declaration on Human Rights and its relevant provisions – to show how the diverse impacts of climate change can be seen as violating several individual human rights, such as the rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security and a means of subsistence, and to residence, movement, and inviolability of the home (Inuit petition, 2005, p. 5). The legal starting point of the petition is that the human rights of indigenous peoples should be interpreted in the context of indigenous culture, which requires protection of their land and environment (Ibid., p. 70). The petition points out that in applying the rights contained in the American Declaration to indigenous peoples, both the Inter-American Human Rights Court and the Commission have repeatedly emphasized the need to take into account the unique context of indigenous culture (Ibid.).9 The Commission has stated that by interpreting the American Declaration as safeguarding the integrity, livelihood and culture of indigenous peoples through the effective protection of their individual and collective human rights, the Commission is respecting the very purposes underlying the Declaration, which, as expressed in the preamble, include recognition that ‘it is the duty of man to preserve, practice and foster culture by every means within his power’ (IACHR, 2002, para. 131, citing American Declaration, 1948). Furthermore, the Commission has stated that ‘indigenous peoples maintain special ties with their traditional lands, and a close dependence upon the natural resources provided therein – respect for which is essential to their physical and cultural survival’ (IACHR, 1997, Chapter IX). According to the petition, the lives and culture of the Inuit demonstrate that indigenous peoples’ human rights are inseparable from their environment. Therefore, the preservation of the Arctic environment is ‘one of the distinct protections required for the Inuit to fully enjoy their human rights on an equal basis with all peoples’ (Inuit petition, 2005, p. 72). The petition claims that States thus have an international obligation not to degrade the environment to such an extent that it threatens the culture, health, life, property, or ecological security of indigenous peoples (Ibid.). The petition reminds the Commission that the Inuit and their culture have developed over thousands of years in relationship with, and in response to, the physical environment of the Arctic.10 The Inuit have thus developed an intimate relationship with their surroundings, using their understanding of the Arctic environment to develop tools, techniques and knowledge that have enabled them to subsist on the scarce resources of their environment.11 All aspects of Inuit life depend on ice, snow, land and weather conditions in the Arctic. The petition even goes so far as to
9
The petition refers to many cases that will be dealt with in this section. The Inuit petition refers to Gibson and Schullinger (1998, p. 6). 11 The Inuit petition (p. 74) refers to the ACIA (2004, p. 16). 10
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argue that ‘the subsistence harvest is essential to the continued existence of the Inuit as a people.’12 Because the subsistence way of life – a central point of Inuit cultural identity – has been damaged by, and may even cease to exist because of, climate change, the petition contends that the United States is violating the right of the Inuit to the benefits of culture, as guaranteed in Article XIII of the American Declaration, through its failure to take effective action to reduce greenhouse gas emissions (Ibid., p. 76). The petition reminds the Commission that both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have long recognized that environmental degradation caused by a State’s action or inaction can violate the human right to the benefits of culture, especially in the context of indigenous cultures (Ibid., p. 75). In the Awas Tingni case (The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001), the Inter-American Court, in discussing the right to property, acknowledged the link between indigenous culture and the land by stating that ‘the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival’ (Ibid., para. 149). The essential connection between the right to culture and interference with the lands of indigenous peoples was also acknowledged by the Inter-American Commission in the Belize Maya case (IACHR, 2004, paras. 154–156).13 Another right that the petition claims to have been violated is the right to property, which is protected in Article XXIII of the American Declaration. The petition reminds the Commission that the Inter-American Commission and the Court have long recognized that indigenous peoples have a fundamental international human right to use and enjoy the lands they have traditionally occupied, independent of domestic title (Inuit petition, 2005, p. 79).14 In Awas Tingni, the Inter-American Court expansively defined property as including ‘those material things which can be possessed, as well as any right which may be part of a person’s patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements
12
The petition (p. 74) refers to the ACIA (2004, p. 94). Additionally, in the Yanomami case, the Commission made a statement recognizing the cultural integrity of the Yanomami people by noting that the Brazilian state had failed to protect their rights by failing to establish a park for the protection of the cultural heritage of the Yanomami and in proceeding to displace the Yanomami from their ancestral lands, which had negative consequences for their culture and traditions. In this case, the Commission found a violation of the right to life, liberty, and personal security (Art. I), the right to residence and movement (Art. VIII), and the right to the preservation of health and well-being (Art. XI) of the American Declaration of the Rights and Duties of Man (IACHR, 1985). The Commission recognized that the protection of ancestral lands is an essential component of indigenous peoples’ right to culture also in its Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin (IACHR, 1983, para. II.B.15). 14 The petition also refers to the Case of Mary and Carrie Dann, where the Commission notes that general international law supports indigenous peoples’ property rights in their ancestral land and that the Proposed American Declaration on the Rights of Indigenous Peoples reflects general principles of international human rights law (IACHR, 2002, para. 129). 13
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and any other intangible object capable of having value’ (IACtHR, 2001, para. 144). In that case, the Court held that the government of Nicaragua violated the rights of the Awas Tingni to property protection when it granted concessions to a foreign company for logging on their traditional lands (Ibid., para. 173). The Inuit petition claims that the Inter-American Court’s definition of the right to property includes not only personal property, but also intellectual property and intangible rights of access (Inuit petition, 2005, p. 83). The petition points out that environmental degradation caused by development can affect the existence, value, use or enjoyment of personal property (Ibid.). In this case, climate change diminishes the value of the personal property of the Inuit. For instance, disappearing ice roads and disappearing snow cause damage to sled and skidoo runners, as well as sled dogs’ paws. The petition refers to the case of the small community of Pangnirtung in Nunavut, where an Inuit commercial fishery that employed many people has diminished in value due to the fact that during recent years the ice often has not formed properly or has broken up early, with ensuing losses of vital equipment. The petition claims that ‘the United States government has an obligation not to interfere with the Inuit’s use and enjoyment of their property through its failure to take effective action to reduce greenhouse gas emissions’ (Ibid., p. 84). Furthermore, the petition argues that the Inuit, both individually and collectively possess property rights in ‘movable’ as well as ‘intangible object[s] capable of having a value.’ The personal possessions of the Inuit, such as equipment, clothing, and hides, fall within the category of protected property. Additionally, the intellectual property of the Inuit, in the form of their traditional knowledge, is an ‘intangible object capable of having a value.’ Besides this, the Inuit, according to the petition, possess intangible property rights of access to the harvest of resources (Ibid., p. 84). According to the petition, the unprecedented rapid climate change has made much of the traditional knowledge and valuable education system of the Inuit inaccurate and less valuable, affecting their ability to ‘use, share, market and bequeath that [knowledge] to future generations.’15 Furthermore, the Inuit’s property interest in access to lands is now less valuable because climate change has substantially diminished the fruit of the harvest from those lands. For example, the disappearance of travel routes and healthy game due to climate change has made access for the Inuit more difficult and less valuable. In these ways, according to the petition, global warming is reducing the ‘existence, value, use and enjoyment’ of the property of the Inuit (Ibid., p. 85). In addition to the rights to culture and property, the Inuit petition claims that the effects of global warming violate the right of the Inuit to the preservation of health as guaranteed in Article XI of the American Declaration.16 The Inuit petition reminds 15 This is the wording used in the Proposed American Declaration on the Rights of Indigenous Peoples (American Declaration, proposed, 1997, art. 20.1.). 16 The Inuit petition points out that this guarantee is interpreted in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) as ensuring ‘the enjoyment of the highest level of physical, mental and social well-being’ (Article 10). The petition furthermore recalls that other major international human rights instruments also safeguard the right to health. See the Inuit petition, p. 85.
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the Commission that it has acknowledged the close relationship between environmental degradation and the right to health, especially in the context of indigenous peoples (Inuit petition, 2005, p. 85). The petition refers to the Yanomami case, where the Commission has recognized the link between environmental degradation and the right to health provided in Article XI of the American Declaration (Ibid.; IACHR, 1985). The Inuit petition argues that climate change caused by the US government’s regulatory actions and inactions is harmful to the health and well-being of the Inuit. The petition refers to diminished populations, accessibility, and quality of fish and game upon which the Inuit rely for nutrition. In addition to physical health issues, the mental health of the Inuit has been damaged by ‘the transformation of the once familiar landscape and the resultant cultural destruction’ (Inuit petition, 2005, pp. 87–88). The petition also claims that the United States’ acts and omissions regarding global climate change violate the right of the Inuit to life, physical security and integrity. Changes in ice and snow threaten individuals’ lives and place food sources at risk, and unpredictable weather makes travel dangerous at all times of the year (Ibid., p. 90). Additionally, the damage to homes and infrastructure from increased coastal erosion, land slumping, and flooding result in displacement, dislocation, and associated psychological impacts, thus leading to a violation of Article 1 of the American Declaration (Ibid., p. 91).17 Under the American Declaration, ‘Every human being has the right to life, liberty, and the security of his person’ (American Declaration, 1948, art. 1). The petition reminds the Commission that the right to life is the most fundamental right, and is included in all major international human rights conventions.18 The petition claims that the United States has repeatedly bound itself to protect this right by ratifying the OAS Charter and the International Covenant on Civil and Political Rights (CCPR), adopting the American Declaration, and signing the American Convention on Human Rights (Inuit petition, 2005, p. 89). The petition refers to the Yanomami case, where the Commission established a link between environmental interference and the right to life by finding that the government of Brazil’s failure to protect the integrity of Yanomami lands violated the right of the Yanomami to life, liberty and personal security as guaranteed by Article 1 of the American Declaration (IACHR, 1985). Additionally, in its Report on the Situation of Human Rights in Ecuador, the Commission has stated, ‘The right to have one’s life respected is not [. . .] limited to protection against arbitrary killing’ (IACHR, 1997, Chapter VIII). The report further states, ‘The realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one’s physical environment. 17
The petition refers to the ACIA Overview report (2004, p. 111). The right to life is included in Article 6 of the CCPR, Article 3 of the Universal Declaration of Human Rights (1948), Article 4.1 of the American Convention on Human Rights (1969), and Article 2.1 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (1950). 18
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Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated’ (Ibid.). The petition also claims that the rights of the Inuit to residence and movement and inviolability of the home, as protected under Articles VIII and IX of the American Declaration have been violated (Inuit petition, 2005, p. 94). The petition refers to the Commission’s statement in the Yanomami case, where it found a violation of the right to residence and movement where some Yanomami people had to leave their traditional lands because of a series of adverse changes caused by government development projects (IACHR, 1985, para. 1, section: ‘The Inter-American Commission on Human Rights, resolves’). According to the petition, the United States’ acts and omissions contributing to global warming violate the right of the Inuit to residence and movement because climate change threatens their ability to reside in their communities (Inuit petition, 2005, p. 95). Additionally, the right of the Inuit to inviolability of the home is violated because the effects of climate change adversely affect private and family life. This means in practice that coastal erosion caused by increasingly severe storms threatens entire coastal communities and melting permafrost causes building foundations to shift, damaging Inuit homes and community structures, leading in the worst cases to relocation of communities and homes farther inland (Ibid.). The last right that the petition claims has been violated is the right to means of subsistence. The petition argues that the right of the Inuit to their own means of subsistence is inherent in and a necessary component of the American Declaration’s right to property, health, life, and culture in the context of indigenous peoples. The petition refers to the practice of the UN Human Rights Committee of using the words ‘means of subsistence’ when protecting the livelihoods of indigenous peoples under Article 27 of the International Covenant on Civil and Political Rights (CCPR) (Ibid., p. 92). The petition furthermore refers to other instruments such as ILO Convention No. 169 that protect the right of indigenous peoples to their own means of subsistence.19 The petition argues that Arctic climate change is making the subsistence harvest of the Inuit more dangerous and difficult and indeed gradually destroying their means of subsistence. According to the petition, the United States has an international obligation not to deprive the Inuit of their own means of subsistence. The United States’ acts and omissions with regard to climate change violate the Inuit’s human rights to their own means of subsistence (Ibid., p. 94).20
19 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, Articles 14.1 and 23.1. 20 If the admissibility criteria are fulfilled, a petition to the Inter-American Commission is opened to consider the merits of the case. The report of the decision on the merits clarifies whether or not there have been violations by a Member State. The decision is to be based both on the information provided and any other information that is a matter of public knowledge (Articles 42(1) and 43). If violations are identified, the Commission prepares a preliminary report proposing how to address the violations; the State which is alleged to have committed the violation is expected to respond to this report. The State has the opportunity to report on efforts to comply with the recommendations
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The Inter-American Commission on Human Rights has clearly recognized that environmental interference with the lands of indigenous peoples can lead to infringement of their human rights.21 So in principle it could be assumed that the consequences of climate change could be considered as an issue of human rights in the Commission. Besides that, the Commission has recognized that it also takes into account new developments in human rights law that emerge in other human rights systems than just the field of Inter-American human rights law (IACHR, 1985). Therefore, the practice of the UN Human Rights Committee, for instance, may also be relevant for decisions of the Inter-American Commission. It is, however, important to note that although there have been successful cases in the Inter-American Commission and Court where the human rights of indigenous peoples have been considered to have been violated because of interference with their lands, the crucial difference between these earlier cases and the Inuit case is that the Inuit petition is the first case involving global environmental interference, where it is certainly not easy, first of all, to find and understand all the connections between environmental impacts and human rights, on one hand, as is already evident in the original rejection of the petition by the Commission, but secondly – and perhaps more importantly – it might be extremely difficult, if not impossible, for the Commission to point to one particular state as being responsible for a clearly global environmental problem, even though it is a well-known fact that the United States has been the biggest single producer of greenhouse gases.22 Additionally, despite the fact that the petition clarifies quite convincingly the connections between the implications of climate change and each article of the American Declaration, the whole phenomenon of global climate change still has so many unknown factors that it is not easy to be totally sure that it is precisely the actions or omissions of the United States that are the main cause of each of these environmental changes, which would have to be proved in order for the United States to be before a final report of the Commission is issued. (If the violating State has accepted the jurisdiction of the Court, the Commission will provide the petitioner with an opportunity at this stage of the process to consider the response of the violating State to the recommendations of the Commission and to comment on whether the case should be referred to the Court.) In the absence of a referral to the Court, the Commission is free to publish its final report within three months of completing its preliminary report (Doelle, 2005, p. 234). 21 In the planning state of the petition, the ICC was trying to determine whether there might be other suitable bodies for the petition. In the beginning of 2003, the Executive Council of the ICC issued a resolution pondering the issue. The resolution mentions in particular two states, the Russian Federation and the United States, which had not at that time ratified the Kyoto Protocol (Inuit Circumpolar Conference [ICC], 2003). Russia, unlike the United States, has ratified the Optional Protocol to the CCPR, so in principle the Russian Inuit could have brought an individual communication to the UN Human Rights Committee. Importantly, however, the Russian Federation ratified the Kyoto Protocol before the Inuit took the legal action against the United States, so a claim against the Russian Federation was no longer so topical. (The Russian Federation ratified the Kyoto Protocol on November 5, 2004.) 22 However, according to recent news, China has overtaken the United States as the leading emitter of carbon dioxide, and its emissions are now increasing about ten times faster than those of the United States (Harris, 2008).
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regarded as responsible for the rights violation. By this token, it does not seem, at least to my mind, very realistic to expect the Inuit petition to be successful or even to be reopened by the Inter-American Commission.23 Even if it is found to be meritorious, this petition could not perhaps achieve what it aims at: the effective protection of the rights of the Inuit. It is difficult to see how the Commission could affect the climate change policy of the United States so dramatically that the major climatic changes that are already starting to take place in the Arctic would not threaten the traditional livelihoods of the Inuit. By this token, it can be seen that the traditional human rights mechanisms cannot effectively be used to protect the rights of indigenous peoples from global environmental interference such as climate change. Although it is doubtful that the human rights of indigenous peoples can be effectively protected against the impacts of climate change through traditional human rights monitoring mechanisms, cases such as the Inuit petition importantly challenge the monitoring bodies to open up new ways of thinking and interpreting the articles of the human rights instruments that were not originally created to handle the complex impacts of global climate change. The Inuit petition is certainly important, even if it is not found to be meritorious, for it exposes clearly the core deficiencies of international law in relation to indigenous peoples. The petition is, perhaps more than anything, an attempt to allow an indigenous voice to be heard. It is also a reflection of the fact that indigenous peoples have not been able to participate effectively in the global governance of climate change. It has indeed been a conscious choice of the ICC to make its intentions concerning the petition public from the very beginning. In the 9th Conference of the Parties to the Framework Convention on Climate Change, in Milan 2003, Sheila Watt-Cloutier (2003), then president of the ICC, stated to the media, NGOs and attending states:
23 Should the Commission, however, find the petition meritorious, along with the proceedings the Commission would prepare a preliminary report proposing how the United States should address the violations. If the United States had accepted the jurisdiction of the Court, the Commission would provide the petitioner an opportunity at this stage of the process to consider the response of the violating State to the recommendations of the Commission and to comment on whether the case should be referred to the Court. The United States then would have an opportunity to report on efforts to comply with the recommendations before a final report of the Commission would be issued. The Commission could then publish its final report if the recommendations had not been complied with by the United States. See Rules of Procedures of the Commission, Articles 43, 45 and 46 (See also Meinhard, 2005, p. 234). Additionally, the Commission could decide to include the petition in its annual report to the General Assembly of the OAS, in order to call attention to the case (Articles 56 and 57). The OAS General Assembly can also make a resolution if a state does not follow the recommendations of the Commission. According to Article 42, there is also an option of pursuing a friendly settlement process. It is difficult, however, to see how the parties in this case could reach a mutually satisfactory agreement.
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Our rights – our human rights that we share with all of you – to live as we do and to enjoy our unique culture – part of the globe’s cultural heritage – [are] at issue. The Arctic dimension and Inuit perspectives on global climate change need to be heard in the corridors of powers.
The Inuit want to participate in order to contribute to international climate change policy. This is evident in the following statement of Watt-Cloutier (2003), also made in the 9th Conference of the Parties: We do not suggest this route lightly, or in an adversarial spirit. The Arctic states account for 40 percent of the world’s greenhouse gas emissions, so it is appropriate for us to use our human rights to prompt a dialogue with them, particularly the United States of America. It is our intent to educate not criticize, and to inform not complain. We hope that the language of human rights will bridge perspectives, not lead to more barricades and protest. After all, if we protect the Arctic we will save the world.
The reason for bringing the action is thus not only to point to the United States as ‘guilty’ of the problem of climate change and responsible for the infringement of the rights of the Inuit, but also to convince the whole community of states to take effective action to combat climate change, and to make sure everyone understands that the problem of climate change is dramatically impacting the rights of the Inuit. In this light it can be argued that although the Inuit petition may not be able to protect the substantive rights of the Inuit, it may put pressure on states to take indigenous peoples’ views into consideration in decision-making concerning climate change. Watt-Cloutier affirmed this view by stating in 2003 in Milan that ‘we engage in the politics of influence not the politics of protest. Our fate and yours are one and the same. We hope all heed our: ‘Voice from the North’ (Climate change, 2003). Furthermore, the ICC Executive Council Resolution, which explains the purpose of the petition, states, ‘In order to protect Inuit human rights and interests in the Arctic region, focus should be necessarily directed to international forums since many related issues are increasingly regulated at this level’ (ICC, 2003). It instructs the ICC to work in partnership with Arctic and other governments and appropriate NGOs to develop global initiatives to combat climate change (Ibid.). It directs the Office of the Chair to: 1. Develop and implement a political, legal, and media climate change strategy to bring Inuit concerns about global climate change and the threat that this poses to Inuit human rights to the attention of international agencies and decision-makers with the aim of strengthening international arrangements to combat global climate change. 2. Bring Arctic/Inuit perspectives on climate change to the attention of decisionmakers in North America, western Europe, United Nations agencies, and to governments that participate in the Conferences of Parties to the UN Framework Convention on Climate Change with the aim of positioning Inuit to influence international discussions and decisions, particularly related to the post-Kyoto Protocol commitment period – after 2008. (Ibid.)
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Not only the Inuit of the Arctic, but also other indigenous peoples worldwide have been pushing for special status and recognition in international climate change governance. Several organizations of indigenous peoples have been participating in the Conference of the Parties to the UNFCCC. ‘Indigenous Peoples Organizations’ have been recognized as one of the constituencies of observers at the UNFCCC. Indigenous peoples, however, have not been satisfied with their present status in the process, but have been constantly demanding the establishment of a Working Group of Indigenous Peoples on Climate Change as a means of guaranteeing their ‘full and effective participation’ (Indigenous Caucus, 2003). The Inuit petition can be seen as an important attempt to improve the status of indigenous peoples in international climate change governance. From the viewpoint of the general status of indigenous peoples in international environmental decisionmaking, these kinds of formal openings are certainly significant. In this respect it can be seen that the Inuit petition and similar cases which may be inspired by this case can put pressure on states to truly ‘hear’ the indigenous voice and take it into account in decision-making concerning the global environment.
9.3 The Right to Participate – State Sovereignty vs. The Human Rights of Indigenous Peoples This section aims to discuss the inherent contradiction between the basic structure of international law relating to the doctrine of state sovereignty and the doctrine of subjects on one hand, and the human rights of indigenous peoples on the other hand. This contradiction arises from the basic fact that whereas the human rights of indigenous peoples, as will be shown, include the right to effective participation of indigenous peoples in all matters that affect their rights, the doctrine of subjects (or legal persons) prevents their effective participation in international norm-making concerning the environment, which, from the viewpoint of traditional livelihoods, is one of the most crucial fields of interest for indigenous peoples. The doctrine of subjects (or legal persons) determines who may bear rights and obligations. Traditionally, the doctrine has been rather clear: states are the primary subjects of international law.24 The doctrine of subjects, as described in standard modern textbooks, repeats the fact that current international law contains an extensive number of obligations and rights that pertain to entities other than states: e.g., individuals, indigenous peoples, liberation movements, and companies.25 What these textbooks often do not emphasize, however, is that while these actors may have legal rights and obligations in international law, e.g., where a treaty accords a 24 Yet, for example, organisations of states (inter-governmental organisations, IGOs) can acquire the status of a legal person in international law (International Court of Justice, 1949). 25 See generally Malanczuk (1997, Chapter 6).
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human right to an individual, they cannot participate in the making of legal norms. In this respect, not much has changed. States are still the ones who create international legal norms. It has been argued that the doctrine of state sovereignty is in decline, the argument being that nation-states cannot exercise their freedom with the host of legal obligations that constrain their actions in most policy areas (Koivurova & Hein¨am¨aki, 2006, p. 102). The basic premise of state sovereignty is, however, still valid: since states are sovereign, they can only be legally bound by norms to which they voluntarily consent, either implicitly (customary law) or explicitly (treaties). Taking the battle against climate change as an example, one barrier to the effective reduction of greenhouse gases is the fact that there is no external power that can force states – for instance, the United States, as the largest contributor to global warming – to ratify the Kyoto Protocol to the Framework Convention on Climate Change. The freedom of contract of states, which is a direct emanation of their sovereignty, can be problematic if there are states that contribute strongly to a certain environmental problem, but are not willing to commit themselves to international treaties that try to solve the problem in question. What makes the freedom of contract of states problematic, besides the fact that our common global environment is in danger, is the fact that environmental issues often have direct implications for human rights, particularly those of indigenous peoples.26 The doctrine of states’ sovereignty and legal subjectivity restricts, however, the ability of indigenous peoples to participate in the creation of international law concerning the environment. One of the earliest tensions in classical international law is that between the territorial sovereignty of governments and the status of individuals and groups as beneficiaries of human rights. As the emphasis on natural law had given way by the mid-nineteenth century to positivist law and a focus on the consent of governments, the tension tended to be resolved in favour of the state. For indigenous peoples, who did not qualify as states, this meant that they were not able to participate in the shaping of international law (Anaya, 2004, p. 150). According to Oppenheim’s well-known textbook on international Law, the basis for excluding indigenous peoples from among the subjects of international law was reduced to their subjective non-recognition by those within the ‘Family of Nations.’ Eliminating whatever ambiguity remained about the status of Indian tribes and similar indigenous peoples, Oppenheim’s treatise added expressly that the law of nations does not apply to ‘organized wandering tribes’ (Oppenheim, L.F.L. (1920).
26 It should be noted that the concept of common concern, although not implying a specific rule for the conduct of states, yet signals that states’ freedom of action may be subject to limits even where other states’ sovereign rights are not affected in the direct transboundary sense envisaged by the no-harm principle, in areas or resources beyond the limits of national jurisdiction, and even resources physically located within the territory of individual states which are of general concern. In such cases, according to Brunn´ee, the concept of common concern entitles and perhaps even requires all states to cooperate internationally to address the concern (Brunn´ee, 2007, p. 566).
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International Law. R. F. Roxburgh (Ed.), p. 134–135, as quoted in Anaya (2004 pp. 28–29)). Even though international law today continues to be concerned primarily with states and their relations with one another, under the modern rubric of human rights it is also increasingly concerned with upholding rights that are deemed to inhere in human beings individually and collectively. The right to self-determination, which is included in human rights documents, arises within the human rights framework of contemporary international law rather than the traditional context of states’ rights. The question of self-determination will be dealt with in the following section. Despite the fact that indigenous peoples are often nowadays regarded as a distinct legal category between minorities and states – some kind of quasi-state actors with special rights and status within many individual states (Barsh, 2007, p. 850)27 – this does not reflect their position in international norm-making. Indigenous peoples do not constitute states and have not, in most cases, ambitions of statehood, with most working to establish some form of self-governance within existing nation states. Without state status, however, indigenous peoples are excluded from the process of international law-making in matters that directly affect their interests and rights, such as global environmental issues. In international law-making, indigenous peoples are regularly categorised as nongovernmental organisations (NGOs) along with other groups participating in the international policy-making process; thus they have very limited rights to participate in that process. This binary structure of representation leads to a situation where indigenous peoples are put on the same footing as industrial and environmental associations. It could be argued that the intermediate position of indigenous peoples, representing peoples within states, not interest-based constituencies, should be reflected in their status in international treaty-making.28 The implications of the recognized right to self-determination and self-government will be dealt with in the following section. This section aims to show that despite their freedom of contract, states have already voluntarily committed themselves to the human rights of indigenous peoples; these rights protect their traditional way of life from environmental interference and, importantly, guarantee their effective participation in all matters that directly affect their rights and interests. This means, according to the present author, that states are not only under a legal obligation to protect the environment effectively but also to guarantee the effective participation of indigenous peoples in international environmental decision-making. The right of indigenous peoples to participate effectively indeed forms an integral part of their right to culture – perhaps the crux of indigenous rights – as recognized by several widely ratified human rights instruments such as both International
27 In fact, indigenous peoples are the only general category of people that have demanded selfdetermination and to whom certain distinct collective rights have been accorded in international law (Kingsbury, 2003; International Labour Organisation Convention No. 169, 1989). 28 I have argued this earlier with Timo Koivurova in Koivurova and Hein¨am¨aki (2006, p. 102).
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Human Rights Covenants29 and the International Convention on the Elimination of all Forms of Racial Discrimination (1965). Starting with Article 27 of the CCPR – which can be seen as perhaps the basic legal treaty recognizing the culture of members of indigenous peoples as minorities – the UN Human Rights Committee, a monitoring body of the CCPR,30 has interpreted this article as including ‘the rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong’ (Human Rights Committee [HRC], 1984a). In reaching this conclusion, the Committee recognizes that indigenous peoples’ subsistence and other traditional economic and social activities are an integral part of their culture, and interference with those activities can be detrimental to their cultural integrity and survival.31 The impacts of climate change, as illustrated by the Inuit petition, are good examples of an interference that can have devastating effects on the cultural integrity of indigenous peoples within and outside the Arctic. Even though Article 27 primarily sets out the negative obligation of states not to deny members of minorities the right to enjoy their culture, to profess and practice their religion or to use their own language, in the legal literature and in the work of the UN Human Rights Committee, positive obligations have been derived from the provision (Hanski & Scheinin, 2003, p. 375). The Committee’s famous General Comment No. 23 (50) (HRC, 1994a, pp. 147–150), adopted in 1994, explicitly states that a State party has an obligation to ensure that the existence and the exercise of this right are protected against denial or violation, and that positive measures of protection are required against the acts of the State party or other persons within the State party.32 The Committee furthermore importantly maintained that in the case of indigenous peoples, the right to culture under Article 27 may consist of ‘a way of life which is closely associated with territory and use of its resources. [...] That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law’ (HRC, 1994a, p. 3). The Committee then emphasized, ‘The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.’ The 29
The International Covenant on Civil and Political Rights ([CCPR], 1966) and the International Covenant on Economic, Social and Cultural Rights ([CESCR], 1966). 30 The HRC was established under Article 28 of the CCPR. It is composed of 18 independent experts in the field of human rights, elected by the state parties to the CCPR (CCPR, 1996, arts. 28–34). Although they are nominated and elected by the states parties to the CCPR, the members of the HRC ‘serve in their personal capacity’, meaning that they are independent and do not represent the states that nominated them (CCPR, 1996, art. 28(3),). 31 See also Kitok v. Sweden, Report of the Human Rights Committee (HRC, p. 221). 32 The UN Secretary-General has also stated, in discussing Article 27 of the CCPR, that ‘the protection of minorities [. . .] requires a positive action: a concrete service is offered to a minority group, such as the establishment of schools in which education is given in the native language of the members of the group. The protection of minorities, therefore, requires affirmative action to safeguard the rights of minorities whenever the people in question [. . .] wish to maintain their distinction of language and culture’ (United Nations Secretary-General, 1949, paras. 6–7).
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Committee concluded that ‘article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole’ (Ibid., emphasis added). The Committee recognizes requirements for positive legal measures of protection and effective participation separately, but in the case of global environmental issues such as climate change, it can be seen that the effective participation of indigenous peoples in international environmental processes would be an important part of the positive legal measures of protection. In the case I. L¨ansman et al v. Finland (HRC, 1994b), the UN Human Rights Committee referred to its General Comment on Article 27, according to which measures must be taken to ensure the effective participation of members of minority communities in decisions that affect them (HRC, 1994a, para. 7; 1994b, para. 9.6).33 The Committee noted that the members of the Saami people had been consulted during the proceedings and that the quarrying that had taken place thus far had had only ‘a certain limited impact’; thus it had not adversely affected reindeer herding in the area too much (HRC, 1994b, paras. 9.5, 9.6).34 In later cases – for example in the J. L¨ansman case (HRC, 1995), as well as in the case of Apirana Mahuika et al v. New Zealand (HRC, 1993/2000, para. 9.5) – the Committee has come to similar conclusions with regard to the criteria of the combined test of consultation and sustainability (HRC, 1993/2000, paras. 7.8, 7.9, 8.3, 9.3 and 10.5).35 Even though these cases concern local environmental issues, it can be argued that indigenous peoples should also be consulted in global environmental matters that may affect their right to traditional livelihoods in dramatic ways. The right to
33
The Committee thus applies a two-part test of consultation and economic sustainability. The Committee noted that the local Saami had been consulted during the proceedings and that the quarrying that had so far occurred did not appear to have adversely affected reindeer herding in the area (HRC, 1994b, para. 9.6). The test of effective participation is also reflected in para. 7 of the Committee’s General Comment (HRC, 1994a). 34 For the analysis of the two-part test, see Scheinin (2000a, p. 168). In the I. L¨ ansman case, the Committee emphasized that Article 27 does not protect only the traditional means of livelihood of minorities, and the fact that the Saami have ‘adapted their methods of reindeer herding over the years and practice it with the help of modern technology does not prevent them from invoking Article 27 of the Covenant’ (para. 9.3). 35 For the ’test’ see footnotes 33 and 34. In any case, no violation was found in J. L¨ ansman. A similar case concerning environmental issues and the right to culture of the Saami people of ¨ arel¨a and J. N¨akk¨al¨aj¨arvi v. Finland (HRC, 1997), where the Committee found that Finland is A. A¨ the requirements of consultation and sustainability had been met, thus finding no violation (paras. 7.5 and 7.6). In this case, however, the Committee did find a violation of Article 14.1 (the right to be equal before the court) in conjunction with Article 2 (the right to effective remedies) because of the failure of the Finnish Court of Appeal to allow the authors the opportunity to challenge one of the submissions of the state during the proceedings therein (para.7.4) and because Finnish law requires the loser in court proceedings to pay the costs of the winner without allowing the judge any discretion to lower the amount of costs awarded (para. 7.2). J. and E. L¨ansman et al. v. Finland (HRC, 2001) is another case in which no violation was found.
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be consulted must necessarily entail a more influential status than that of regular NGO participation. As the Inuit petition shows, the impacts of climate change can in many places certainly go beyond ‘a certain limited impact’, adversely affecting the traditional livelihoods of indigenous peoples, which are protected in Article 27. The Committee supported this view by stating in the I. L¨ansman case (HRC, 1994b) that if mining activities in the Angeli area were to be significantly expanded, this might constitute a violation of the authors’ rights under Article 27. The committee noted that economic activities, in order to comply with Article 27, had to be carried out in such a way that the authors could continue to benefit from reindeer husbandry (Ibid., para. 9.8). Based on the jurisprudence and General Comments of the Human Rights Committee, it can be concluded that the right to culture under Article 27 entails positive obligations for states in two important ways. First, states are under an obligation to make sure that their actions do not harm the sustainability of the traditional livelihoods of indigenous peoples. With regard to environmental issues this is a very relevant obligation meaning that states have a duty to protect the culture of indigenous peoples from environmental interference falling within their responsibility. Therefore, states are under an obligation to protect the environment of indigenous peoples. When it comes to global environmental problems such as climate change, however, it is not enough that states protect the lands of indigenous peoples locally, since, as has become obvious, the lands and traditional livelihoods of indigenous peoples are affected by global environmental changes. This should indicate that states have a legal obligation to engage in effective measures and international cooperation to protect the global environment. Additionally, the second requirement of the UN Human Rights Committee is of importance where it states that Article 27 requires the ‘effective participation’ or ‘meaningful consultation’ with indigenous peoples in cases related to the enjoyment of their culture. Whereas the impact of climate change can dramatically threaten the traditional livelihoods of indigenous peoples, the Arctic Inuit being but one example, states are under an obligation to guarantee the effective participation of indigenous peoples in global climate change governance. The Committee on the Elimination of Racial Discrimination of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) has recognized in a General Recommendation adopted in 1997 that the situation of indigenous peoples has always been a matter of close attention and concern for it (Committee on the Elimination, 1997).36 The CERD urged states to ensure freedom
36 Article 1(1) of the Convention on the Elimination of Racial Discrimination (1965) defines racial discrimination as ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’ (emphasis added). Articles 1(4) and 2(2) contemplate affirmative action, or a state’s taking ‘special and concrete measure’ to redress current or historical inequities, particularly in the social, economic and cultural realms. Article 5(e)(vi) guarantees the right to ‘equal participation in cultural activities.’
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from discrimination, to provide conditions ‘allowing for a sustainable economic and social development compatible with [indigenous peoples’] cultural characteristics’ (Ibid., para. 4(c)). The CERD also highlighted the effective participation of indigenous peoples by requiring of states that ‘no decisions directly relating to their rights and interests are taken without their informed consent’ (Ibid., para. 4(d), emphasis added). The right to culture of indigenous peoples is also recognized by the International Covenant on Economic, Social and Cultural Rights ([CESCR], 2000).37 With regard to cultural protection, the CESCR provides that states must take steps to achieve the full realization of the right to culture (CESCR, 1966, art. 15(2)). The Committee on Economic, Social and Cultural Rights has recognized the right of indigenous peoples to culture, lands and resources on many occasions.38 Interestingly and importantly, the Committee has also started to address the rights of indigenous peoples in the light of Article 1 (self-determination) of the Covenant, which will be discussed in the following section. The Inter-American Human Rights system also guarantees effective participatory rights for indigenous peoples concerning the use of their lands. These rights are included particularly within the right to property (American Declaration, 1948, art. XXIII),39 as the two following cases show. The Inter-American Commission on Human Rights has taken this approach in the Belize Maya case, in requiring the informed consent of the Maya people in relation to the use of their lands, which were seen as property (IACHR, 2004, para.194).
37
Article 15(1) recognizes the right of everyone ‘to take part in cultural life’ and to benefit from the ‘moral and material interests of any scientific, literary or artistic production’ authored by them. The CESCR held a Day of Discussion on 27 November 2000, during which members stated that traditional knowledge and intellectual and cultural heritage, both as individual and collective rights, could be addressed in relation to Article 15(1)(c) (ComESCR, 2000b, paras. 578–635). See also MacKay (2005, p. 83). Very similar to the CESCR in language, the Universal Declaration on Human Rights (1948) recognizes that everyone has the right ‘to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and benefits and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’ (Article. 27, paras. 1 and 2). 38 Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities Forty-fourth session, Item 8 of the provisional agenda, 3 July 1992, The Realization of Economic, Social and Cultural Rights, Final Report submitted by Mr. Danilo T¨urk, Special Rapporteur (ComESCR, 1992, para. 198). See also Concluding Observations of the Committee on Economic, Social and Cultural Rights on Finland (ComESCR, 2000a, para. 25). The CESCR has recognized the importance of cultural rights for individual and collective identity, the relationship between cultural rights and other rights such as land and resource rights in other Concluding Observations as well. See for instance CESCR Concluding Observations on Panama (ComESCR, 2001b, para. 12); Colombia (ComESCR, 2001a, para. 12); Ecuador (ComESCR, 2004, para. 58). 39 The Inter-American Commission on Human Rights acknowledges the fundamental nature of this right by stating that ‘various international human rights instruments, both universal and regional in nature, have recognized the right to property as featuring among the fundamental rights of man’ (IACHR, 1994, Chapter 6, p. 464; American Convention, 1969, art. 21).
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In a similar vein, in the Awas Tingni case (IACtHR, 2001), the Inter-American Court concluded that Nicaragua had violated the rights of the Mayagna community of Awas Tingni by granting a logging concession within the community’s traditional territory without its consent and by ignoring the consistent complaints and requests of the Awas Tingni community urging demarcation of the territory. In ruling on the delimitation, demarcation, and titling of the corresponding lands of the members of the Awas Tingni Community, the Inter-American Court of Human Rights importantly stated that this had to be done ‘with full participation by the Community and taking into account its customary law, values, customs and mores’ (Ibid., para. 164, emphasis added).40 In a recent Saramaka case, (IACtHR, 2007), the Inter-American Court explained more closely what it means by ‘consultation’ and ‘prior consent’. In relation to logging and mining activities that took place in the territory of the Saramaka community,41 the Court made a special reference to Article 32 of the UN Declaration on the Rights of Indigenous Peoples, which requires from states consultation and cooperation with indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources (Ibid., para. 131, emphasis added). The Court stated that the right to property (Article 21) of the American Convention has to be understood in the light of the rights recognized under the common Article 1 of CCPR and CESCR (self-determination), and Article 27 of the CCPR to the effect of calling for the right of members of indigenous and tribal communities to freely determine and enjoy their own social, cultural and economic development, which includes the right to enjoy their particular spiritual relationship with the territory they have traditionally used and occupied (Ibid., para. 95). The Court explained then what the duty of the State to consult indigenous and tribal peoples mean. According to the Court, the consultations must be carried out ‘in good faith’, through culturally appropriate procedures and with the objective of reaching an agreement. Furthermore, the Court continued that the Saramakas must be consulted in accordance with their own traditions, at the early stages of a development or investment plan, not only when the need arises to obtain approval from the community. This is because the early notice provides time for internal discussion 40 The Court also stated that Nicaragua must adopt ‘the legislative, administrative, and any other measures necessary to create an effective mechanism for delimitation, demarcation, and titling of the property of indigenous communities, in accordance with their common law, values, customs and mores’, and that until the delimitation, demarcation, and titling of the lands of the members of the community had been carried out, Nicaragua ‘must abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to “impair the existence, value, use or enjoyment of the property located in the geographic area where the members of the Awas Tingni Community live”’ (IACtHR, 2001). 41 As observed by the Inter-American Court, Saramaka people are not indigenous to the region they inhabit; they were instead brought to what is now known as Suriname during the colonization period (para.79–80). The Court recognized Saramaka people as a tribal community and held that its jurisprudence regarding indigenous peoples’ right to property is also applicable to tribal peoples because both share distinct social, cultural and economic characteristics (paras 84 and 86).
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within communities and for proper feedback to the State. The Court further stated that the state must also ensure that members of the Saramaka people are aware of possible risks, including environmental and health risks, in order that the proposed development or investment plan is accepted knowingly and voluntarily (Ibid., para.133). Finally, the Court considered that, regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent, according to their customs and traditions (Ibid., para 134).42 The Court ruled that the State shall adopt legislative, administrative and other measures necessary to recognize and ensure the right of the Saramaka people to be effectively consulted (Ibid, para 8 of the Operative Paragraphs). The Saramaka case sets an important legal precedent in relation to participatory rights of indigenous peoples. Although it does not recognize the right of indigenous peoples to have absolute control over their natural resources, the Court in Saramaka acknowledges that the collective right to property has to be understood in the light of the right to self-determination, taking into account also Article 32 of the UN Declaration, which requires the commitment of the State to obtain free and informed prior to the approval of any project affecting their lands or territories and other resources. Again, even though these cases concern the local use of the traditional lands of indigenous peoples, there is no reason why the requirements of positive protection and effective participation could not and should not be applied in relation to global environmental management. ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, which is – besides the former ILO Convention (International Labour Organization [ILO] Convention No. 107, 1957)43 – the only legally binding international instrument concerning the rights of indigenous peoples, guarantees the right to effective participation in matters which affect them. Article 6.1 42
The Court referred to the notion of the UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, according to which ‘free, prior and informed consent is essential for the [protection of] human rights of indigenous peoples in relation to major development projects’ (Para. 135 of the Saramaka Case). See UN Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2001/65 (Fifty ninth session), U.N. Doc. E/CN.4/2003/90, January 21, 2003, para 66. The Court also referred to UNCERD that has observed that ‘[a]s to the exploitation of the subsoil resources of the traditional lands of indigenous communities, the Committee observes that merely consulting these communities prior to exploiting the resources fall short of meeting the requirements set out in the Committee’s general recommendation XXIII on the rights of indigenous peoples. The Committee therefore recommends that the prior informed consent of these communities be sought’. UNCERD, Consideration of Reports submitted by States Parties under Article 9 of the Convention, Concluding Observations on Ecuador (62nd session, 2003), U.N. Doc. CERD/C/62/CO/2, June 2, 2003, para 16. 43 ILO Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 5 June 1957. This Convention is still in force for those countries that have ratified it but have not ratified Convention No. 169.
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states: ‘Governments shall [...] consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly’ (ILO Convention No. 169, 1989, art. 6.1(a), emphasis added).’ Furthermore, states must ‘establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them’ (Ibid., art. 6.1(b)). Additionally, states must ‘establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose’ (Ibid., art. 6.1(c)). Importantly, Paragraph 2 of Article 6 maintains that the consultations ‘shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures’ (emphasis added). Paragraph 2 strengthens the right of indigenous people to participate in issues that concern them. Even though it does not give indigenous peoples a right of veto, it certainly requires discussions in good faith (Swepston, 1998, p. 42). In this respect, according to the Guide to ILO Convention No. 169, consultation is a fundamental principle of the convention, as it offers indigenous and tribal peoples ‘the opportunity to participate in decision-making processes and to influence their outcome. It provides the space for indigenous and tribal peoples to negotiate to protect their rights’ (ILO, 1993, p. 17). Article 6.1 addresses the obligation of states to consult indigenous peoples in matters which affect them. Global environmental matters, such as climate change, can easily be seen as fitting into this category. According to Article 6.1, states must establish means for indigenous peoples to participate ‘at all levels of decisionmaking in bodies responsible for policies concerning them’ (emphasis added). This statement can be interpreted as including international environmental decisionmaking. ‘The bodies responsible for policies concerning them’ can be interpreted to mean the organizations representing indigenous peoples. The wording ‘at least to the same extent as other sectors of the population’ indicates an opening for special treatment, where merited, in brief affirmative action (Swepston, 1998, p. 42). When it comes to dramatic environmental consequences such as the impact of climate change, it can be argued that since indigenous peoples are particularly vulnerable to environmental interference and represent such a small percentage of the population of states, representation through ordinary democratic means does not allow them to achieve the level of effective participation suggested by the phrase ‘to the same extent as other sectors of the population’. The ILO Guide to Convention No. 169 affirms that equality can require special treatment for groups who are at a disadvantage (Tomei & Swepston, 2000, p. 11). Support for this idea may be found in Article 4, which says that states must adopt special measures as appropriate to safeguard the persons, institutions, property, labour, culture and environment of indigenous peoples. Extended participatory rights in international processes which directly affect indigenous peoples’ rights could be one important special measure.
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Additionally, Article 7 gives extra weight to the applicability of Article 6 to participation in international environmental processes. It guarantees indigenous peoples ‘the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural developments.’ Additionally, indigenous peoples ‘shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly’ (ILO Convention No. 169, 1989, art. 7.2, emphasis added). Furthermore, governments ‘shall ensure that [...] studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities’ and that the results of these studies ‘shall be considered as fundamental criteria for the implementation of these activities’ (Ibid., art. 7, emphasis added). Even though the ILO Convention does not recognize the right of indigenous peoples to self-determination, Article 7 has been formulated using a similar kind of language to self-determination, asserting that indigenous peoples have a right ‘to decide their own priorities.’ When indigenous peoples have no say in international environmental policies, they certainly lack the possibility to decide their own priorities concerning their lands and traditional livelihoods. Land rights provisions are often regarded as the crux of ILO Convention No. 169.44 Importantly, the rights of indigenous peoples with respect to the natural resources of their lands must be specially safeguarded. According to Article 15, these rights include the right of these peoples to participate in the use, management and conservation of these resources and the right to be consulted when these natural resources are being used by the State or third parties. Here again, environmental protection and the effective participation of indigenous peoples in international environmental processes can be seen as a means of safeguarding their rights to natural resources. Even though the ILO Convention does not explicitly guarantee the right to self-determination, it clearly recognizes de facto at least an internal aspect of this right: the right to self-government.45 As has been shown, the right of indigenous peoples to participate effectively in matters that directly affect their lives and rights are guaranteed in present human rights law. The right to participate effectively should also be reflected in international environmental decision-making, such as climate change governance. This view seems to be shared by Tahvanainen, who concludes that the right to effective
44
Land rights are set down in Articles 14–19 (ILO Convention No. 169, 1989). Article 14 recognizes the ownership, possession and usufruct of the traditional lands of indigenous peoples. 45 In the context of the ILO Convention, Myntti talks about the ‘ethno political self-government’ of indigenous peoples. In his view, particularly Articles 14 and 15, when read together with Article 6, include the right of indigenous peoples to govern their traditional lands (Myntti, 1996, p. 24). Regarding the right to participation under the ILO Convention No. 169, see Ulfstein (2005, pp. 13–31). For the rights of Arctic Saami people under the ILO Convention 169, see generally Joona (2005).
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participation opens up some avenues that can affect indigenous peoples’ treatymaking capacity (Tahvanainen, 2005a, p. 415). Recent developments concerning the right of indigenous peoples to selfdetermination, such as the recent adoption of the UN Declaration on the Rights of Indigenous Peoples, bring additional weight to the question of participation. Before this matter is investigated more closely in the following section, it should be mentioned that in the field of international environmental law as well, indigenous peoples’ participatory rights have been developed particularly since the Rio Conference on Environment and Development in 1992. Principle 22 of the Rio Declaration on Environment and Development states: Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. (Rio Declaration, 1992, principle 22, emphasis added)
The Convention on Biological Diversity ([CBD], 1992), which was also adopted in the Rio Conference, sets legally binding rights for indigenous peoples and requirements for the state in that respect. Article 8(j) states: [States shall] Subject to [their] national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations, and practices. (CBD, 1992, art. 8(j), emphasis added)
The consensus of the Rio Conference concerning indigenous peoples reflects the idea that indigenous peoples should not be protected only for their own sake, but that indigenous peoples can make a valuable contribution to environmental protection and sustainable development.46 In the case of climate change, when able to participate more profoundly, indigenous peoples could put significant pressure on states to commit themselves to the reduction of greenhouse gas emissions. Finally, it should be mentioned that the Vienna Declaration and Programme of Action, adopted in the World Conference on Human Rights in 1993 (Vienna Declaration, 1993), also highlights ‘the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them’ (Ibid., Principle 20). Furthermore, according to the Declaration, states should take concerted positive 46 This idea is repeated in the Vienna Declaration and Programme of Action adopted in 1993, Paragraph 20 of Part I, in which the Conference ‘recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development. States should ensure the full and free participation of indigenous people in all aspects of society, in particular matters of concern to them’ (Vienna Declaration, 1993).
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steps to ensure the human rights of indigenous peoples, on the basis of equality and non-discrimination, and recognize the value of their distinct identities and cultures (Ibid.).
9.3.1 The Right to Self-Determination of Indigenous Peoples: Recent Developments The aim of this section is to examine recent developments concerning the right of indigenous peoples to self-determination and to consider what this right means or should mean from the viewpoint of the effective participation of indigenous peoples in international environmental decision-making. Self-determination is defined as the right and ability of a people or a group of peoples to choose their own destiny without external compulsion (Cassidy, 1991, p. 1).47 It has been stressed that in order to protect their human rights, indigenous peoples need to exercise fully their right to self-determination and their collective rights to have control over their territories and natural resources, as well as over their environmental security and their own development (Sands & Fabra, 2002, p. 11). Developments which recognize the right of indigenous peoples to selfdetermination are emerging in international law. Besides the fact that the UN Declaration on the Rights of Indigenous Peoples, which was adopted by the Human Rights Council in June 2006 and by the UN General Assembly in September 2007,48 recognizes the right of indigenous peoples to self-determination, the UN Human Rights Committee has issued interesting and important views to the effect that Article 1 of the CCPR (right to self-determination) can be applied to indigenous peoples. The right to self-determination is included in the common Article 1 of the widely ratified international human rights covenants (CCPR and CESCR),49 and it is also featured in the African Charter on Human and Peoples’ Rights (1981, art. 20). These human rights covenants and other international instruments declare that it is
47
The principle of self-determination of peoples has been recognized since 1919, when the League of Nations, the precursor to the United Nations, was established. Following the creation of the United Nations in 1945, the ‘principle’ of peoples’ self-determination evolved into an erga omnes right under international law. The International Court of Justice (ICJ) has recognized that the right to self-determination has an erga omnes character (Case Concerning East Timor, 1995; Case Concerning the Barcelona Traction, 1970). See also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request for Advisory Opinion) (2003). Some scholars argue that the right to self-determination is even jus cogens – a peremptory norm. See, e.g., Hannikainen (1998, pp. 421–424). 48 The Declaration on the Rights of Indigenous Peoples was adopted with 143 states voting in favour, 4 against (New Zealand, Australia, the USA and Canada), and 11 abstaining (including Russia) (United Nations General Assembly [UNGA], 2006). 49 CCPR, Status of ratification: 161; CESCR, Status of ratification: 157 (6 May 2008).
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‘peoples’ that have the right to self-determination.50 This phraseology has led to fierce and endless debate about what constitutes a ‘people’.51 The general assumption among those engaging in this debate has been that a ‘people’ is an entity that a priori has actual or putative attributes of sovereignty of statehood and has a legal existence distinct from that of human beings, who otherwise enjoy human rights.52 One emerging trend among legal experts has been to distinguish between an internal and an external aspect of the right to self-determination,53 with ‘peoples within states,’ such as indigenous peoples, having the internal right to selfdetermination in matters relating to their internal affairs and the protection of their cultural integrity (see, e.g., Tahvanainen, 2005a, p. 412; Crawford, 1997, para. 67(e)). According to the Supreme Court of Canada in the Reference Re Secession of Quebec (1998), for instance, internal self-determination means ‘a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state’ (Ibid., para. 126).54
50 See CESCR (1966, art. 1(1)); CCPR (1966, art. 1); African Charter on Human and Peoples’ Rights (1981, art. 20). See also UN Charter, Article 1(2); Final Act of the Conference on Security and Cooperation in Europe (1975, Principle VIII); and Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (1970, Principle V). 51 Although there is no accepted definition of what a ‘people’ is – i.e., who are the ones who exercise the rights – there are some working definitions available: for instance, the so-called Kirby definition, which was used by the UNESCO International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, UNESCO HQ, Paris, November 27–30, 1989. According to the Kirby definition, a people is ‘(1) a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; (g) common economic life; (2). the group must be of a certain number which need not be large but which must be more than a mere association of individuals within a State; (3) the group as a whole must have the will to be identified as a people or the consciousness of being a people – allowing that group or some members of such groups, though sharing the forgoing characteristics, may not have that will or consciousness; and possibly; (4) the group must have institutions or other means of expressing its common characteristics and will for identity.’ 52 See generally Jones (1999, pp. 90, 97–101), who distinguishes between the conception of ‘peoples’ as corporate entities that hold rights as such and can assert those rights even against the groups’ members, and the more flexible conception of ‘peoples’ under which rights are held collectively by the group’s members themselves, 53 Cassese was one of the first authors in international law to introduce the concepts of external and internal self-determination, albeit not in particular relation to indigenous peoples (Cassese, 1995). 54 SCC continues in the same paragraph, ‘the right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External selfdetermination can be defined as in the following statement from the Declaration on Friendly Relations as ‘[t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute models of implementing the right of self-determination by that people.’ Similarly to the SCC, the Committee on the Elimination of Racial Discrimination ([CERD], 1996, para. 4), states, concerning the right to internal self-determination: ‘The right to self-determination of peoples has an internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference.’
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Different self-government arrangements which many countries have established together with indigenous peoples and which guarantee specific rights for indigenous peoples concerning their local affairs fall within the category of ‘internal’ selfdetermination. To the right to freely pursue their economic, social and cultural development is connected the prohibition that a people must not be deprived of its own means of subsistence. As far as indigenous peoples are concerned, this dimension of self-determination is strongly connected to questions related to land and territories which they traditionally occupy or otherwise use and to the natural resources in these areas (Tahvanainen, 2005a, p. 412). 9.3.1.1 The UN Declaration on the Rights of Indigenous Peoples After a decade of work, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights) adopted the Draft Declaration prepared by the Working Group on Indigenous Populations (WGIP) in 1994,55 and sent it to the Commission on Human Rights (now called the Human Rights Council) for its consideration. The Draft Declaration stated, leaning on the wording of Article 1 of both International Human Rights Covenants:56 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. (Draft United Nations Declaration, 1994)
Additionally, Article 31 of the Draft declared that the right to self-government is ‘a specific form of exercising the right to self-determination’ in matters relating to the internal and local affairs of indigenous peoples. The culture, land and resource management, and the environment are among the ‘internal and local affairs’ listed in this article. In 1995, the Commission on Human Rights considered the Draft and established an Inter-Sessional Working Group (Commission on Human Rights, 1995) with the mandate to consider the text and draw up a draft Declaration for the consideration of the Commission and eventually for adoption by the UN General Assembly. The process was supposed to be finished during the International Decade of the World’s Indigenous People (1995–2004). Even though this goal was not quite achieved, the new UN Human Rights Council adopted the Declaration in June 2006,57 recommending that the UN General Assembly adopt it. The same wording as in the earlier Draft was used in Article 3 regarding the right to self-determination. However, the text dealing with self-government was moved
55 The WGIP is a subsidiary organ to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, established with the endorsement of ECOSOC on May 7, 1982. UN Doc. E/Res/1982/34. 56 The CCPR (1966) and the CESCR (1966). 57 The Declaration was not adopted without opposition. There were 30 votes in favour, 2 against, and 12 abstentions. See the version adopted by the Human Rights Council: A/HRC/1/L.10, 30 June 2006 (Draft United Nations Declaration, 2006).
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to Article 4. Additionally, the formulation in Article 31 ‘as a specific form of exercising their right to self-determination’ was replaced by ‘in exercising their right to self-determination.’ After these changes, it has been argued that Articles 3 and 4 were intended to be read together, meaning that indigenous peoples’ right to selfdetermination is limited to internal self-determination: the right to autonomy or selfgovernment (Koivurova, 2008, p. 10). In September 2007, the Declaration was adopted with some important changes regarding the right to self-determination from the version adopted by the Human Rights Council. The final version adopted by the UN General Assembly states in Article 46(1): Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.58
This statement reflects a common view among international lawyers that in noncolonial territories the right to self-determination does not amount to the right for a part of the population to secede from existing states.59 In relation to this view, an additional argument has been raised, as expressed by the Supreme Court of Canada in proceedings arising from the secession of Quebec (Reference Re, 1998), according to which there might be exceptional circumstances in which a group may have a legally and politically tenable right to secession due to their demonstrable inability to achieve the established rights of self-determination guaranteed by law.60 What does the right to self-determination of indigenous peoples then comprise according to the UN Declaration? It seems clear that, the statements in Article 58
The latest version adopted by the UN General Assembly (United Nations Declaration, 2007). The earlier Article 46(1) adopted by the Human Rights Council was much more modest in formulation: ‘Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations’ (Human Rights Council, 2006. 59 See generally Crawford (1997; 2005). 60 In relation to the question of the unilateral secession of Quebec, the Supreme Court of Canada stated: ‘In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions. Accordingly, neither the population of the province of Quebec, even if characterized in terms of “people” or “peoples”, nor its representative institutions, the National Assembly, the legislature or government of Quebec, possess a right, under international law, to secede unilaterally from Canada’ (Ibid., para. 138). According to Professor Wildhaber, there may be developments that point to a broadening of the principle of self-determination to allow for a right to unilateral secession not only for colonies but also where there are flagrant violations of human rights or undemocratic, discriminatory regimes (Department of Justice Canada, 1997).
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3 notwithstanding, indigenous peoples are not, at least in normal circumstances, totally free to determine their political status. Article 3, however, continues by saying that indigenous peoples are free to pursue their economic, social and cultural development. Additionally, Article 4 guarantees the right to autonomy or selfgovernment in matters relating to their internal and local affairs, as well as ways and means of financing their autonomous functions. Article 4 does not specify ‘local or internal affairs’ as did the Draft of 1994. Environmental matters are not thus explicitly mentioned as falling in this category. Article 29 of the UN Declaration, however, explicitly states that indigenous peoples have the right to protect the environment and the productive capacity of their lands or territories and resources and to get assistance for that from states. Whereas the given articles of the Declaration are meant to be read together, this should indicate that environmental protection falls within the scope of Article 4. Whereas, according to the UN Declaration, it seems to be clear that indigenous peoples have a right to self-determination concerning their local affairs, for the purposes of this study one needs to consider the participation of indigenous peoples in international inter-state affairs in matters that directly affect their internal affairs such as culture and the environment. The Declaration does not make a direct connection between the right to self-determination and the international representation of indigenous peoples. Interestingly and importantly, this issue has been taken into account in the Draft Nordic Saami Convention,61 which states in Article 19 that ‘the Saami parliament shall represent the Saami in intergovernmental matters. The states shall promote Saami representation in international institutions and Saami participation in international meetings.’ The Expert Committee of the Draft Nordic Saami Convention sees indigenous peoples as being entitled to exercise their external self-determination via representation in inter-state affairs in international relations (Henriksen, Scheinin, & ˚ Ahren, 2005).62 In the Draft Nordic Saami Convention, it is affirmed that Saami is an indigenous people of Finland, Norway and Sweden that, according to Article 3, as a people, has the right of self-determination ‘in accordance with the rules and provisions of international law and of this Convention.’ Article 3 continues by stating that ‘[i]n so far as it follows from these rules and provisions, the Saami people has the right to determine its own economic, social and cultural development and to dispose, to their own benefit, over its own natural resources.’ Article 19 of the Draft Nordic Saami Convention is significant, since many important environmental questions are managed by global or regional governance
61 The expert group was set up in November 2002 with a mandate extending until the end of 2005. It is composed of six members, three of whom represent the Governments of Finland, Sweden and Norway and three of whom represent the national Saami Parliaments. The Nordic Draft Saami Convention was released in 27 October 2005. The treaty negotiations are expected to begin in November 2008. 62 Henriksen argued already in 2001 that the participation of indigenous peoples in international negotiations between states can be seen as an external element of self-determination as it relates to inter-state relations (Henriksen, 2001, p. 10).
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regimes. Environmental problems such as climate change, even though governed globally, have direct implications for the lands of indigenous peoples locally. What is important here is not whether the representation of indigenous peoples in interstate affairs is considered to be an internal or external element of the right to selfdetermination. If this question needs to be asked, however, it can be construed that if indigenous peoples are participating as part of national delegations, they are exercising their internal self-determination. On the contrary, if indigenous peoples have a formal position outside national delegations, the participation could be viewed as an external dimension of self-determination. What is more important than considering this division, however, is that the question of international representation seems to be almost forgotten in the discussion concerning self-government in internal and local affairs.63 In the Arctic states, there is a strong movement towards internal selfdetermination: indigenous peoples in the region are primarily striving for some sort of self-governance within existing states rather than attempting to secede from them (Koivurova & Hein¨am¨aki, 2006, p. 103). The only self-governance arrangement in which an indigenous people has occasionally expressed a desire for independence is that of the Inuit in Greenland. Two basic internal self-governance models that have been used in the Arctic are public government models, which give all the residents of the region in question a degree of self-government (for example, Nunavut and Greenland, where indigenous peoples form a majority), and self-government based on indigenous membership only (for example, native tribal governments in Alaska) (Arctic Human Development Report [AHDR], 2004, Chapters 5 and 6). However, even the most ambitious internal self-governance structures in the Arctic – for example, Nunavut in Canada – cannot overcome the threat posed by global climate change: while an Arctic indigenous people may control local policy, it does not have competence in international affairs, as illustrated by the example of the Inuit petition. With regard to Nunavut, it should be noted, however, that the Nunavut Agreement contains a provision giving the Inuit at least a limited role in international environmental issues. It prescribes: ‘The Government of Canada shall include Inuit representation in discussions leading to the formulation of government position in relation to an international agreement relating to Inuit wildlife harvesting rights in the Nunavut Settlement Area, which discussions shall extend beyond those discussions generally available to non-governmental organizations’ (Nunavut Land Claims Final, 1993).64
63
See Hein¨am¨aki (2004). Nunavut Agreement, 1992, Part 9: 54–55 (5.9.2), from http://npc.nunavut.ca/eng/nunavut/ nlca.pdf (visited 9 March 2008). The Tlicho Land Claims and Self-Government Agreement also provides that ‘Prior to consenting to be bound by an international treaty that may affect a right of the Tlicho First Nation or a Tlicho Citizen, flowing from the Agreement, the Government of Canada shall provide an opportunity for the Tlicho Government to make its views known with respect to the international treaty either separately or through a forum.’ Para. 7.13.2, from http://www.aincinac.gr.ca/pr/arg/nwts/tliagr2 e.pdf (visited 9 March 2008). 64
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It can be argued that the internal right to self-determination within an existing state should reflect the international personality question and representation of indigenous peoples in international norm-making. The right to self-government or autonomy is an inherent part of sovereignty, and self-government means that the holder of that right has discretion to act in a certain field in accordance with its own needs and will and without interference by another entity. Or, in terms of gradation, as argued by Meijknecht, the extent to which an entity is sovereign, autonomous, or self-governing is relative to the extent of its capacity to make decisions and take actions concerning its own existence. This, in turn, is an indication of the probability of the existence of legal capacity (Meijknecht, 2001, pp. 36–37). According to Tahvanainen, even though indigenous peoples do not have an international treaty-making capacity equal with that of states, based on the right to selfdetermination of indigenous peoples, they should be granted a possibility to effectively participate in actual treaty-making, by being given a more suitable position than a ‘party’ (Tahvanainen, 2005b, Annex 1).65 To give one interesting national example, the Finnish Government Bill states that the Finnish Parliament has an obligation to negotiate with the Saami parliament in all far-reaching and important measures which may directly and in a specific way affect the status of the Saami as an indigenous people, including the participation of Saami people in drafting international agreements.66 Even though the UN Declaration on the Rights of Indigenous Peoples does not directly spell out the right of indigenous peoples to participate in international environmental decision-making, besides the articles concerning self-determination and self-governance, the participation of indigenous peoples has been guaranteed in ‘matters which would affect their rights.’ Article 18 states: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Interpreted in the international decision-making context, this should mean that indigenous peoples have the right to choose their representatives in forums where important decisions are made. Article 19 continues in a similar vein: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. (emphasis added).
Environmental matters certainly fall within this category, as decisions concerning environmental matters often directly affect the land and rights to land and traditional 65 Tahvanainen sees the international participation of indigenous peoples as an external element of the right to self-determination (Tahvanainen, 2005, p. 416). 66 Government Bill No 248/1994 on the inclusion of the provisions on Sami cultural autonomy in the Finnish Constitution and other domestic legislation.
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livelihoods of indigenous peoples, as pointed out, for instance, in the Inuit petition against the United States. Concerning land rights, Article 26 of the UN Declaration guarantees the right of indigenous peoples to their lands, territories and resources, confirming that indigenous peoples have the right to own, use, develop and control their lands, territories and resources. Additionally, the preamble of the Declaration confirms that the UN General Assembly is ‘convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs.’ Article 32 continues in a similar vein, maintaining that indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. According to this article, as noted before, states must again consult and cooperate in good faith with indigenous peoples through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources (emphasis added). Even though Article 32 refers specifically to ‘projects’ affecting the lands of indigenous peoples, the consequences of global environmental interference such as climate change, for which states are responsible, should be seen in a similar vein, and the full representation of indigenous peoples in international environmental decision-making should be guaranteed. Articles 19, 26 and 32 complete Articles 3 and 4 of the UN Declaration (the right to self-determination and self-governance), in which the right to natural resources is not explicitly mentioned. This is contrary to the common Article 1 of the International Human Rights Covenants,67 which states that the right to natural resources and means of subsistence is an essential part of the right to self-determination.68 The International Indian Treaty Council stated in the seventh session of the Permanent Forum on Indigenous Issues: ‘For indigenous Peoples, the Right of Free, Prior and Informed Consent (FPIC) is a requirement, prerequisite and manifestation of the exercise of their fundamental right to Self-determination as defined in international law’ (United Nations Permanent Forum on Indigenous Issues [UNPFII], 2008c). The significance of the language of Articles 19 and 32 (the requirement of consent) led Canada, which was one of the states voting against the Declaration, to cite these articles as the most objectionable (Ibid., p. 7). New Zealand interpreted Articles 19 and 32(2) regarding free, prior and informed consent as implying that ‘indigenous peoples have a right of veto over the democratic legislature and natural resource management’ and concluded that New Zealand ‘must disassociate itself from this text’(Oldham & Frank, 2008).69
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CCPR (1966) and CESCR (1966). See the further section of this article. 69 New Zealand’s view can be heard on the webcast of the 61st session of the General Assembly dated 13 September 2007 (UNGA, 2007). 68
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Even though it is not clear whether Article 19 does necessarily indicate a right of veto, it certainly sets a strict duty for states to make every effort to obtain the free, prior and informed consent of indigenous peoples for legislative and administrative measures that may affect them. In international norm-making processes concerning the environment, this should indicate a more profound status for indigenous peoples than that of an NGO. 9.3.1.2 The UN Human Rights Committee Even though Article 27 of the CCPR has been the main legal basis for the considerations of the UN Human Rights Committee in relation to indigenous peoples, as already discussed, the Committee has made important statements concerning the right to self-determination (Article 1 of the CCPR) and its application to indigenous peoples. Interestingly, a rather consistent development can be seen in the approach of the Committee, particularly during recent years, wherein it has started to recognize that the right to self-determination applies to indigenous peoples. In 1984, in the case of Bernard Omiayak & The Lubicon Lake Band v. Canada (HRC, 1984a), the claimants based their claim on the argument that their right to self-determination had been violated by the acts of the state party. The Committee considered the matter and dismissed the applicability of Article 1 of the claim, stating: While all peoples have the right of self-determination and the right freely to determine their political status, pursue their economic, social and cultural development and dispose of their natural wealth and resources, as stipulated in article 1 of the Covenant, the question whether the Lubicon Lake Band constitutes a ‘people’ is not an issue for the Committee to address under the Optional Protocol to the Covenant. The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. There is, however, no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights (HRC, 1984a, para. 32.1.).70
During the next decade, however, in Apirana Mahuika et al v. New Zealand, (HRC, 1993/2000) the Committee made important statements concerning the possible application of the right to self-determination. For instance, it stated: ‘When declaring the authors’ remaining claims admissible in so far as they might raise issues under articles 14(1) and 27 in conjunction with article 1 [(self-determination)], the Committee noted that only the consideration of the merits of the case would enable the Committee to determine the relevance of article 1 to the authors’ claims under 70 The Committee’s position, according to which an individual cannot be a victim of a violation of a people’s collective right to self-determination, meaning that in individual complaints the HRC is ready to examine only individual rights, has been criticized as formalistic, and there are cautious estimations and strong hopes that one day the Human Rights Committee will develop its position concerning the procedural issue of whether the Optional Protocol can be used to submit communications related to Article 1 of the CCPR (Scheinin, 2000b, p. 180). The right to self-determination is secured to ‘all peoples’ in identical terms in Article 1 of both the International Covenant on Civil and Political Rights (CCPR) and the International Covenant on Economic, Social and Cultural Rights (CESCR).
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article 27’ (Ibid., para. 3). The Committee then stated that the provisions of Article 1 might be relevant in the interpretation of other rights protected by the Covenant, in particular that set out in Article 27 (Ibid., para. 9.2). This is a very important comment reflecting the Committee’s change from an earlier ‘distinction approach’ to an ‘interdependence approach’.71 Significantly, in state reporting procedure from 1999 on, the Committee has started to apply Article 1 (self-determination) to indigenous peoples.72 Its first Concluding Observations applying the right to self-determination to indigenous peoples were issued in response to Canada’s state report (HRC, 1999a). The Committee regretted that Canada had not given any explanation of the elements making up the concept of self-determination that applies to its Aboriginal peoples. In addition, the Committee urged Canada to report adequately on the implementation of Article 1 of the Covenant (peoples’ right to self-determination) in its next periodic report (Ibid., para. 7). The Committee emphasized that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (Article 1.2) (Ibid., para. 8). Much as it did in individual complaints relating to Article 27 (the right to culture), the Committee emphasized the right of indigenous peoples to participate in decision-making concerning issues which are relevant to them, including matters concerning their environment. In its Concluding Observations on Australia, the Committee stated: ‘The State Party should take the necessary steps in order to secure
71
According to the distinction approach, if something is covered by provision A, then it can be logically inferred that the same thing or right cannot be covered by another provision B. In general, the distinction approach emphasizes the separate and even exclusive nature of rights, legal concepts or provisions in laws or international treaties. On the contrary, the interdependence approach holds that all provisions in law or in an international treaty must be read and interpreted in their context, as being informed and enriched by every other provision in the same legal instrument and possibly by other instruments as well, at least when a common origin or common system of values can be identified behind the two instruments. Under the interdependence approach, the fact that a certain issue or right is explicitly covered by a specific provision does not mean that other provisions cannot be relevant to the same right (Scheinin, 2000b, p. 181). The language of General Comment No. 23 (50) of the HRC (1994a), relied on the distinction approach by stating that the right recognized in Article 27 ‘is distinct from, and additional to, all other rights’ in the CCPR’ (para. 1). ‘The Covenant draws a distinction between the right to self-determination and the rights protected under article 27’ (para. 3.1). The Committee has, in its General Comment No. 12 (1984), stated that the right of self-determination ‘is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights’ (para. 1) (HRC, 1984b). 72 Article 40 of the CCPR requires states parties to submit reports on measures taken to give effect to the rights defined therein. An initial report is required, which is submitted one year after the state ratifies the CCPR, as well as periodic reports (normally every five years) thereafter. State reports and Concluding Observations of the HRC, from http://www.unhchr.ch/html/menu2/6/hrc/hrcs.htm. Retrieved March 5, 2007.
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for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources’ (Article 1.2) (HRC, 2000a, para. 9). In the Concluding Observations on Sweden (HRC, 2002), the Committee expressed its concern at the limited role of the Saami Parliament in the decisionmaking process in issues affecting the traditional lands and economic activities of the indigenous Saami people, explicitly mentioning projects in the fields of hydroelectricity, mining and forestry, as well as the privatization of land (Ibid., para. 15.).73 The Committee required the State party to ‘take steps to involve the Saami by giving them greater influence in decision-making affecting their natural environment and their means of subsistence’ (Ibid.). Furthermore, in its recent Concluding Observation on the United States (HRC, 2006b), the Committee required that the State party ‘take further steps to secure the rights of all indigenous peoples, under Articles 1 and 27 of the Covenant, so as to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture’ (Ibid., para. 37.).74 In the Concluding Observations of the Committee, the resource dimension75 is emphasized strongly,76 even though it is important to note that the Committee does not confine itself to the recognition of this particular dimension of the right to self-determination. In the environmental context, Paragraph 2 contains two significant elements: the right of all peoples to freely dispose of their natural wealth and resources, and the prohibition against depriving a people in any case of its own means of subsistence.77 In the context of climate change, Paragraph 2 is significant, since the consequences of climate change can dramatically affect natural resources and means of subsistence. Therefore, effective participation in matters concerning natural resources is of great importance. The participatory aspect is much emphasized not only in the Concluding Observations, but also in individual communications, as noted above. In environmental issues the right to effective participation of indigenous peoples, as already mentioned, is perhaps the most important aspect in the application of either Article 27 or Article 1.
73
The Committee referred to Articles 1, 25 (the right to political participation), and 27. Explicit references to either Article 1 or to the notion of self-determination have also been made in the Committee’s Concluding Observations on Mexico (HRC, 1999d), Norway (HRC, 1999e), Australia (HRC, 2000a), Denmark (HRC, 2000b), Finland (HRC, 2004), and Canada again (HRC, 2006a). 75 For the division of the right to self-determination into different dimensions see Scheinin (2000b, pp. 188–189). 76 See also, for instance, Concluding Observations on Norway (HRC, 1999e), where the Committee stated: ‘the Committee expects Norway to report on the Sami people’s right to selfdetermination under article 1 of the Covenant, including Paragraph 2 of that article’ (para. 17). 77 Paragraph 1.2. (HRC, 2006a) states: ‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived its own means of subsistence.’ 74
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In Concluding Observations where the right to self-determination is not explicitly mentioned, besides the sustainability requirement, which was discussed in the previous section, the right to participate is also highlighted. The Committee’s 1999 Concluding Observations on Chile (HRC, 1999b), for instance, stated: The Committee is concerned by hydroelectric and other development projects that might affect the way of life and the rights of persons belonging to the Mapuche and other indigenous communities. Relocation and compensation may not be appropriate in order to comply with article 27 of the Covenant. Therefore: When planning actions that affect members of indigenous communities, the State party must pay primary attention to the sustainability of the indigenous culture and way of life and to the participation of members of indigenous communities in decisions that affect them. (Ibid., para. 22.)
In reading the comments of the Human Rights Committee, it can be seen that Articles 27 and 1 indeed contain very similar elements that are relevant in the environmental context. Concerning individual communications, the protection of cultural integrity consists of two significant factors: protection of the sustainability of the particular livelihood on one hand, and consultation or effective participation of members of a minority on the other. The same elements can be found in Article 1: cultural protection – the right to freely pursue economic, social, spiritual and cultural development (CCPR, 1966, art. 1.1), the right to natural resources, the protection of the means of subsistence, and the right to participate in decision-making concerning the lands, natural resources and traditional livelihoods of indigenous peoples.78 One can ask what the recognition of Article 1 adds to Article 27 in relation to international environmental decision-making. It has become clear that Article 27, although expressed in negative terms, does not merely provide the right to be protected against unlawful interference by a state; rather positive measures of protection are required not only against the acts of the state party itself, but also against the acts of other persons within the state party. Furthermore, the Committee has stated clearly that the economic well-being of the majority is not a legitimate justification for interfering in the right to culture of minorities, even though it has also stated that not every interference amounts to a violation of this right; certain limited impacts on the traditional way of life of indigenous peoples are allowed as long as the livelihood remains sustainable. So far there has been only one environmental case – Lubicon Lake Band – brought by members of an indigenous community where the Committee has found a violation of Article 27. This is not, however, to say that when impacts to the culture are serious, such as they might be in the case of climate change, a violation of Article 27 may be found. As regards the requirement of meaningful consultations – another prerequisite for the fulfilment of Article 27 – the Committee has found that it is met when 78 Scheinin also acknowledges this fact, although not in the environmental context, by noting that the requirements of consultation and sustainability (see the earlier section concerning individual communications) in relation to Article 27 can be seen as constitutive elements of the right to self-determination, whereas the criterion of meaningful consultation can be linked to the political dimension of self-determination, and the sustainability test to the economic or resource dimension (Scheinin, 2000b, p. 193).
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indigenous peoples are directly consulted about projects that might affect their culture, and when they have had the possibility to express their concerns. When it comes to international environmental decision-making, this means that indigenous peoples – through bodies representing them – should be involved in the actual decision-making, with a more profound status than that of an NGO. In this light it can be argued that the right to self-determination under Article 1 strengthens a legal justification for the right to participate. If it is additionally recognized that indigenous peoples have the right to determine the issues that are the most significant to them, such as land and natural resources,79 it should give a strong legal basis for the extended participatory rights of indigenous peoples in international environmental decision-making in matters that involve their interests directly. In analysing the pronouncements of the Human Rights Committee in relation to individual communications and concluding observations within state reports, the question concerning the legal status of the case practice of the Committee with respect to the interpretation of Articles 27 and 1 of the CCPR emerges. In this regard, some guidance may be found in the Vienna Convention on the Law of Treaties (1969). According to Paragraph 1(b) of Article 31 of the Vienna Convention, in the application of the treaty, any subsequent practice which establishes the agreement of the parties regarding its interpretation is important. Even though the paragraph discusses the practice of states parties, thus not expressly mentioning monitoring bodies of treaties, some experts on international law have argued that the practice of monitoring bodies should be regarded similarly, particularly in cases where the states have not opposed the pronouncements of the monitoring body (Henriksen et al., 2005, p, 289). According to the Committee of the International Law Association, treaty interpretations by monitoring bodies become authoritative only if states do not oppose them.80 If one embraces this view, the interpretations of the Human Rights Committee regarding Articles 27 and 1 in relation to indigenous peoples have legal relevance, at least when not opposed by states.81 At a minimum, some kind of authoritative position must be given to the body of the treaty, which has been ratified by the majority of states and which was established particularly for the purpose of monitoring 79
As argued by Scheinin, the Lubicon Lake Band case stands as a demonstration of the fact that allowing the exploitation of the natural resources in a territory traditionally used by an indigenous community may constitute a violation of a State Party’s obligations under Article 27. Furthermore, Scheinin maintains that the case in question demonstrates how the cumulative effect of a step-bystep development with adverse consequences for the life of the indigenous inhabitants ultimately constitutes a violation of Article 27(Scheinin, 2000b, p. 194). 80 For an analysis of this issue, see the International Human Rights Law and Practice – Committee of the International Law Association (ILA) (2004), and their study ‘Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies’. 81 In addition, when interpreting Article 1 of the CCPR, according to Article 31.1 of the Vienna Convention, the general rule of treaty interpretation is that ordinary meaning should be given to the term ‘people’. According to the Kirby definition, it could be argued that indigenous peoples often fit well within this definition, thus constituting a people also in the meaning of Article 1 of the CCPR.
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whether state parties are fulfilling their obligations, and has the task of interpreting the given articles when applying them to individual cases. Moreover, as mentioned earlier, the Committee on Economic, Social and Cultural Rights, has also recently started to apply the right to self-determination to indigenous peoples in its state reporting system. For instance in its Concluding Observations on the Russian Federation, the Committee expressed its concern about ‘the precarious situation of indigenous communities in the State party, affecting their right to self-determination under article 1 of the Covenant’ (Committee on Economic, Social and Cultural Rights (ComESCR), 2002, para. 7; 2003, paras. 11 and 39). The Committee furthermore urges the implementation of national legislation providing for the demarcation of indigenous territories and the protection of indigenous land rights (ComESCR, 2003, paras. 11 and 39). Additionally, the Committee, recalling the right to self-determination, requests the State party to intensify its efforts to improve the situation of the indigenous peoples and to ensure that they are not deprived of their means of subsistence (Ibid., para. 39). Taking into account also the recent adoption of the UN Declaration on the Rights of Indigenous Peoples, added with the Draft Nordic Saami Convention, as well as the views of the Committee on Economic, Social and Cultural Rights and the InterAmerican Court of Human Rights, according to which the common Article 1 of CCPR and CESCR is applicable to indigenous peoples, it can be argued that strong developments are emerging in international law towards the recognition of the right to self-determination of indigenous peoples. In the view of the present author, this should be reflected in the position of indigenous peoples in international normmaking concerning the issues that are crucial to them, environmental issues, such as climate change, being one important example.
9.4 Considerations of the Arctic Council Participatory Model and the Possibilities of the Permanent Forum on Indigenous Issues The Arctic-wide co-operation process that started with the signing in 1991 of the Declaration on the Protection of the Arctic Environment and the Arctic Environmental Protection Strategy (AEPS) (Declaration, 1991) by the eight states of the region (the five Nordic states, Canada, the United States and the Russian Federation)82 is an interesting example of international environmental decision-making in which Arctic indigenous peoples have a stronger influence in decisions concerning the Arctic environment and sustainable development than in regular international regimes, where indigenous peoples can participate only as NGOs.
82 The Strategy (AEPS, 1991), as well as all the other founding documents of both AEPS co-operation and the Arctic Council, can be found on the Arctic Council home page, from http://www.arctic-council.org/ (visited 26 November 2007). For Arctic environmental co-operation see generally Rothwell (1996, pp. 221–257) and Koivurova (2002, pp. 69–94).
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In this first phase of co-operation – generally referred to as AEPS co-operation – the framework organisations of the Arctic indigenous peoples were entitled to the position of observers, as provided in the Arctic Environmental Protection Strategy: In order to facilitate the participation of Arctic indigenous peoples the following organizations will be invited as observers: the Inuit Circumpolar Conference, the Nordic Saami Council and the U.S.S.R. Association of Small Peoples of the North (AEPS, 1991, p. 42).83
Yet, it was the establishment of the Arctic Council in 1996 that enhanced the status of Arctic indigenous peoples. The first paragraph of the founding declaration of the Council, which was created to continue AEPS co-operation, provides: The Arctic Council is established as a high level forum to: provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.
In contrast to earlier policy, in which indigenous peoples’ organisations participated as observers, the Declaration created the new category of permanent participant. Paragraph 2 provides: The Inuit Circumpolar Conference, the Saami Council and the Association of Indigenous Minorities in the Far North, Siberia, the Far East of the Russian Federation are Permanent Participants in the Arctic Council. Permanent participation is equally open to other Arctic organizations of indigenous peoples with majority Arctic indigenous constituency.84
It was also very important that the category of permanent participant was distinguished from that of observer,85 as defined in Paragraph 3 of the Declaration, and that it was created ‘to provide for active participation and full consultation with the Arctic indigenous representatives within the Arctic Council’.86
83 Three organisations in addition to the ones mentioned in this paragraph have since been accepted as permanent participants in the work of the Arctic Council: the Aleut International Association, the Gwich’ in Council International and the Arctic Athabaskan Council. 84 More specific rules are laid out that define the selection criteria for the indigenous peoples’ organisations referred to in Paragraph 2. In order to be eligible to become a permanent participant, an organisation must be ‘representing: (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’. In addition, according to the same paragraph, the determination that such an organisation has met this criterion is to be made by a decision of the Council. At any given time, the number of permanent participants must be fewer than the number of members of the Council, that is, eight. Currently, there are six framework organisations of Arctic indigenous peoples that have the status of permanent participant. 85 Paragraph 3 of the Declaration states: ‘Observer status in the Arctic Council is open to: (a) Nonarctic states; (b) inter-governmental and inter-parliamentary organizations, global and regional; and (c) non-governmental organizations’. 86 Paragraph 2 of the Declaration. In a footnote to the Declaration, the concerns of some Arctic states found expression in the following phrase: ‘The use of the term “peoples” in this declaration shall not be construed as having any implications as regard the rights which may attach to the term under international law’.
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Hence, even though the eight Arctic states are the members proper of the Council, framework organisations of Arctic indigenous peoples have been given an unprecedented status in its work: they are permanent participants who negotiate at the same table with the Arctic states and may table proposals for decision (Arctic Council, 1998, part II). Even though final decisions are made by the Arctic states in consensus, the permanent participants must, according to the Declaration, be fully consulted, which is close to a de facto power of veto should they all reject a particular proposal (Koivurova & Hein¨am¨aki, 2006, p. 104). Even though they became permanent participants in the Arctic Council only from 1996 on, indigenous peoples’ organizations were involved in Arctic environmental co-operation from the very beginning (Tennberg, 1996). In the first consultative meeting of the eight Arctic states in Rovaniemi in 1989, it was considered that ‘indigenous peoples should be involved in future work, since they bear the burdens of environmental degradation directly’ (Consultative meeting, 1989). In the preparatory meeting in Yellowknife the following year, the Inuit Circumpolar Conference (ICC)87 proclaimed the importance of direct participation of indigenous peoples in Arctic environmental co-operation ‘so that indigenous perspectives, values and practices can be fully accommodated’ (Simon, 1990, p. 183). Already from the beginning, indigenous peoples were not satisfied with being only representatives, but wanted to contribute to the environmental process. This led to the development of the idea of using ‘indigenous knowledge’ in the development of the AEPS and its programmes (Tennberg, 1996, p. 2).88 Importantly, indigenous peoples’ traditional knowledge is now included in most of the programmes and working groups that operate under the Arctic Council (Arctic Council website). From its inception, Arctic-wide co-operation has not formalized its operation through an international treaty. AEPS co-operation began with the signing of the Declaration and Strategy, and the Arctic Council was established through a signed declaration. Various views have been presented concerning the legal status of the Arctic Council, the most common being that it is a soft-law organisation which cannot create a legally binding outcome (e.g., Bloom, 1999).89 Most probably, if a treaty had been concluded, indigenous peoples could not have gained as influential a status as they now have in the Arctic Council.90 It 87
Now called the Inuit Circumpolar Council. Indigenous peoples’ traditional knowledge has been largely developed within the individual Arctic states as well. See one Canadian example, from Indian and Northern Affairs Canada (2000). 89 Even though no one seems to be able to determine what it means in practical terms that the Council is a soft-law organisation, it appears that the current consensus among both scholars and the participants in the co-operation is to treat the Council as such an organisation. For an account of the various views, see Koivurova (2002, pp. 69–94). 90 Well into the final moments of the negotiations on the future form of the Arctic Council, the status of indigenous peoples as permanent participants was threatened, particularly by the United States. As Scrivener (1999, p. 54) observes, ‘Concern about the potential emasculation of the permanent participant category was heightened by the request of the Northern Forum and SCPAR that their future observer roles in the Council be given an element of “permanency”. It was also fuelled by a US suggestion that a special category of observers might be appropriate for certain non-Arctic 88
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should be emphasised, however, that this is not due to constraints laid down by the customary law of treaties. According to that body of law, the states would have been perfectly free to create a treaty permitting the participation of indigenous peoples as permanent participants who must be consulted before actual decision-making by the member states.91 Actually, even if indigenous peoples were accorded the status of permanent participants in a legally binding regime, states would still retain their full legal personality and the final decision-making power. The Arctic Council, with its unique model of participation, could well serve as a new model enabling indigenous peoples to find a more reasonable status than that of an NGO. This would reflect the current commitment of states to the human rights of indigenous peoples that guarantee their effective participation in matters that directly affect them. The indigenous peoples’ movement has, in fact, explicitly referred to the Arctic Council as a model that could be used in other regions of the world. In preparation for the 2002 World Summit on Sustainable Development (WSSD), the Indigenous Peoples’ Caucus Statement for the Multi-Stakeholder Dialogue on Governance, Partnership and Capacity-Building promoted sustainable development governance at all levels, in particular: Models for Environmental and Sustainable Development Governance, such as the Arctic Council, which incorporate principles of genuine partnership between States and Indigenous Peoples, ecosystem approaches, collaboration between scientific and traditional knowledge, and local, national and regional implementation plans (Indigenous Peoples’ Caucus Statement, 2002, para. 4).
Should indigenous peoples be given a stronger position in international environmental decision-making, using for instance a ‘permanent participant’ model, the question then necessarily arises of who would represent indigenous peoples. It seems impossible that, since they are so numerous, all indigenous peoples of the world could represent themselves. One interesting possibility would be for the United
states active in the region – for example, the UK – distinct from other observers, such as international organisations and nongovernmental groups. The permanent participant issue was partially resolved in the Council Declaration by confirming the status of the three existing IPO’s. However, during the subsequent debate over the Council’s rules of procedure there were signs that the US still preferred to equate the permanent participants with observers.’ He continues at 56 (Scrivener, 1999): ‘Canada and the ICC were quick to notice the extent to which the early US drafts of the rules of procedure, while correctly emphasising the intergovernmental nature of the Council, intentionally clawed back the advantages of the permanent participants relative to the status in the Council of Observers, in essence equating the former with the latter. With the exception of Russia, the other Arctic states supported Canada in re-asserting the “specialness” of the permanent participants and their right to be fully consulted before the member governments reach collective decisions’. 91 The biggest obstacle to establishing participatory rights for indigenous peoples in a treaty would have arisen from the factual setting. When an international treaty is concluded, different officials are involved than when a soft-law instrument is created. Foreign ministries and their legal offices would have been involved, and their views would in all likelihood have resulted in indigenous peoples’ being given the status they normally have in international treaties, that of NGOs. Another possible obstacle would have been the involvement of national parliaments, which might also have challenged the position of indigenous peoples (Koivurova and Hein¨am¨aki, 2006, endnote 14).
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Nations Permanent Forum on Indigenous Issues92 to act as this representative body, bringing ‘the indigenous voice’ to decision-making. This task would be suitable for the Permanent Forum, which is an advisory body to the Economic and Social Council with a mandate to discuss indigenous issues related to economic and social development, culture, the environment, education, health and human rights (UNPFII n.d.a). The Permanent Forum is comprised of 16 independent experts, functioning in their personal capacity, who serve for a term of three years as Members and may be re-elected or re-appointed for one additional term. Eight of the Members are nominated by governments, and eight are nominated directly by indigenous organizations in their regions (UNPFII n.d.b). The Members nominated by governments are elected by ECOSOC based on the five regional groupings of States normally used in the United Nations (Africa, Asia, Eastern Europe, Latin America and the Caribbean, and Western Europe and Other States). The Members nominated by indigenous organizations are appointed by the President of ECOSOC and represent the seven socio-cultural regions determined to give broad representation to the world’s indigenous peoples. The regions are Africa; Asia; Central and South America and the Caribbean; the Arctic; Central and Eastern Europe, the Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific – with one additional rotating seat among the first three listed above. The rotating seat was taken by Asia during the 2005–2007 term (Ibid.). One possibility would be for the Members of the Permanent Forum to have a seat in a certain environmental regime, using the model of the ‘permanent participant’. Or the Forum itself could make proposals and statements concerning certain environmental issues in its official meetings, and then choose its representatives for the meetings of the parties to the environmental regime in question. Importantly, it should be noted that climate change was a special theme of the seventh session of the Permanent Forum in 2008 (UNPFII, 2008a). Already a year earlier, at its sixth session, the Permanent Forum appointed special rapporteurs to prepare a report on the impact of climate change mitigation measures on indigenous peoples. The recommendations of the Report highlight the importance of the meaningful participation of indigenous peoples, making a special reference to the Arctic, stating that due to the special vulnerability of the Arctic, United Nations Member States and agencies should designate the Arctic region as a special climate change focal point (Tauli-Corpuz & Lynge, 2008). Arctic indigenous peoples’ organizations, especially the ICC and Saami Council, have participated actively in the work of the Permanent Forum (Lindroth, 2006, p. 246). The visibility and active participation of Arctic indigenous peoples, particularly the Saami, were enhanced by the fact that the first chair of the Permanent Forum was a Saami, Ole-Henrik Magga (Ibid.). The ICC and Saami Council together form the Arctic Caucus, which made important statements concerning cli-
92 The Permanent Forum was established by United Nations Economic and Social Council (ECOSOC) Resolution 2000/22 on 28 July 2000.
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mate change in the Seventh Session of the Permanent Forum (UNPFII, 2008b). The Arctic Caucus recommended that the UNFCCC should develop a seat at the negotiating table specifically reserved for indigenous people, through which they would have direct access to decision-makers and would be able to offer their knowledge in constructive ways (Ibid. Item 1). This suggestion comes close to the idea of permanent participation, where representatives of indigenous peoples could participate at the level at which the decisions are made. Whereas the Permanent Forum has already actively engaged itself in environmental issues such as climate change, formal participatory status in international environmental negotiations dealing with such issues that directly concern indigenous peoples would seem to fall naturally within the mandate of the Forum and could strengthen the rights and status of indigenous peoples around the world in a meaningful way. So far, besides participation through NGOs, indigenous peoples have been able to participate through national delegations in some states that have voluntarily allowed it. For instance, in the negotiation process on the Stockholm Convention on Persistent Organic Pollutants (2001), representatives of some Arctic indigenous peoples participated in the national delegations of Canada and the United States (Fl¨ojt, 2003).93 The Stockholm Convention importantly recognizes in its preamble that ‘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’ (The Stockholm Convention, 2001, Preamble). In the climate change regime, however, Arctic indigenous peoples have not been able to organize themselves in the same way as in the Stockholm process on persistent organic pollutants to get their message across.94 All in all, compared to the participation of indigenous peoples in environmental decision-making through national delegations, the ‘permanent participation’ model would seem to offer a more transparent mechanism, since it would not be up to individual governments how deeply their indigenous peoples could truly be involved in the actual decision-making. In that way, it could be expected that the message of indigenous peoples would not so easily be drowned in the extensive climate change agenda. The UN Permanent Forum, as a high level UN organ at the same level as the UN Human Rights Council, could have the necessary credibility to represent indigenous peoples in the environmental processes in order to protect their interests in matters that are crucial for them – climate change being one major example.
93 One reason for Arctic indigenous peoples not being effectively involved in the climate change regime, as they had been in the POPs process, was that the Arctic Climate Impact Assessment (ACIA), which produced essential information on Arctic climate change and its impact on indigenous peoples, was published only in 2004, whereas the Framework Convention on Climate Change was signed already in 2002 and the Kyoto Protocol in 1997. 94 For the Stockholm process on persistent organic pollutants, see generally Downey and Fenge (2003).
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Although the Arctic Caucus, in its Statement established in the Seventh Session of the Permanent Forum, requires special attention to Arctic indigenous peoples in relation to climate change, it also highlights its solidarity with other indigenous peoples and reminds us that what we see more visibly in the Arctic today will be experienced by other peoples around the world (UNPFII, 2008b). Therefore, the effective participation of indigenous peoples should not be limited to Arctic indigenous peoples, although they are the ones who are experiencing the strongest consequences of climate change at present (Tauli-Corpuz & Lynge, 2008).
9.5 Concluding Remarks Global environmental problems such as climate change can have dramatic implications for the human rights of indigenous peoples, as illustrated by the Inuit petition against the United States. Since, on one hand, the traditional human rights monitoring mechanisms are not necessarily useful tools to deal with global environmental interference, and whereas, on the other hand, the consequences of global environmental problems such as the impacts of climate change are often irreversible, the most important issue from the viewpoint of indigenous peoples is the possibility to influence the shaping of international environmental policies and law. The human rights of indigenous peoples guarantee their effective participation in all matters that directly concern their rights and interests as indigenous peoples. Additionally, at present, indigenous peoples are increasingly seen as the only distinct category of peoples other than nation-states that are entitled to selfdetermination. However, as mentioned above, this right does not extend to a full right to secede from existing states; rather, indigenous peoples are entitled to govern their own affairs within states. The right to self-determination, however, cannot be limited to participation in local affairs since perhaps the most crucial issues for indigenous peoples are being governed globally. Self-determination should be interpreted as what it truly is: the ability and the right of a people to choose its own destiny. Even though in the case of indigenous peoples this must be done within the framework of existing states, self-determination should grant indigenous peoples a better status in international policy-making, given that they have no control over global problems via national and local self-governance structures. Climate change poses challenges to state-controlled international governance in many ways. The dramatic and global implications of climate change necessarily reveal the inherent limitations of the present structures and means of international law to cope with these new kinds of environmental problems that do not affect only individual states or neighbouring states but the whole international community of states.95 (Taylor,1998, p. 2), Taylor, in discussing the deficiencies of international law regarding the problem of climate change, argues that it has been clear from the outset that the challenge of climate change cannot be met without changes in the 95
See generally Taylor (1998).
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design of international law. She refers to the 1989 Hague Declaration on the environment, which called for ‘a new approach, through the development of new principles of international law, including new and more effective decision-making and enforcement mechanisms’ (Hague Declaration on Environment, 1989). Indigenous peoples’ participation in environmental decision-making concerning global environmental problems would be beneficial not only for indigenous peoples but for the global environment as well. This would give weight to the rights-based approach and broaden the scope of the present state-controlled global governance.96 Even though international law typically develops only slowly, relying on the consensus of states, the adaptation of old principles to new situations and the slow emergence of new principles (Taylor, 1998, p. 3), a strengthened position of indigenous peoples in environmental decision-making would not require too much of the states, since it would not destroy the basic principles of state sovereignty and legal subjectivity. Here, the soft law model of the Arctic Council might lead the way, as it does not equate indigenous peoples with NGOs or states but gives them a kind of intermediate position with permanent participant status but no formal decision-making power. In the permanent participant model, it would still be the states, as parties to a certain treaty, who would make the final decisions. Yet indigenous peoples would not be merely ‘objects’ of protection either, but could be actively involved in decision-making that is significantly related to their own lives and their future development as individuals and as peoples. Should the permanent participation model be used, the UN Permanent Forum on Indigenous Issues seems like a suitable body to represent indigenous peoples in international environmental regimes. Arctic indigenous peoples should have a strong representation in the Permanent Forum in relation to climate change issues, since, at present, the impact of climate change is most visible and most severe in the Arctic areas. With such participation, Arctic indigenous peoples would be in a better position to contribute to the mitigation of climate change and adaptation to it.
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52/D/511/1992. Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ 7e86ee6323192d2f802566e30034e775?Opendocument and www1.umn.edu/humanrts/undocs/ html/vws511.htm. Human Rights Committee (HRC). (1995). J. L¨ansman et al v. Finland. Communication No. 671/1995). UN Doc. CCPR/C/58/D/671/1995. Retrieved November 21, 2007, Retrieved January 21, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/67b455218 cbd622d80256714005cfdad?Opendocument. ¨ arel¨a and J. N¨akk¨al¨aj¨arvi v. Finland CommunicaHuman Rights Committee (HRC). (1997). A. A¨ tion No. 779/1997. UN Doc. CCPR/C/73/D/779/1997. Human Rights Committee (HRC). (1999a). Concluding observations of the Human Rights Committee: Canada 07/04/99, UN. HRC, 65th session, at para. 8, UN Doc. CCPR/C/79/Add. 105 (1999). Retrieved January 21, from http://www.unhchr.ch/tbs/doc.nsf/0/ e656258ac70f9bbb802567630046f2f2?Opendocument. Human Rights Committee (HRC). (1999b). Concluding observations of the Human Rights Committee: Chile. 30/03/99, CCPR/C/79/Add.104. Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.104.En?Opendocument. Human Rights Committee (HRC). (1999c).Concluding observations of the Human Rights Committee: Finland. UN Doc. CCPR/CO/82/FIN (2004). Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.82.FIN.En?Opendocument. Human Rights Committee (HRC). (1999d). Concluding observations of the Human Rights Committee: Mexico. UN Doc. CCPR/C/79/Add.109 (1999). Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.1.Add.41.En?Opendocument. Human Rights Committee (HRC). (1999e). Concluding observations of the Human Rights Committee: Norway. 01/11/99, CCRP/C/79/Add. 112. Retrieved March 5, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.112.En?Opendocument. Human Rights Committee (HRC). (1999f). Kitok v. Sweden, Report of the Human Rights Committee, 43 UN GAOR Supp. (No. 40), at 221, UN Doc. A/43/40. Human Rights Committee (HRC). (2000a). Concluding observations of the Human Rights Committee: Australia. 28/07/2000, CCPR/CO/69/AUS. Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.40,paras.498-528.En?Opendocument. Human Rights Committee (HRC). (2000b). Concluding observations of the Human Rights Committee: Denmark. UN Doc. CCPR/CO/70/DNK (2000). Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.CO.70.DNK.En?Opendocument. Human Rights Committee (HRC). (2001). J. and E. L¨ansman et al. v. Finland. Communication No. 1023/2001. UN Doc. CCPR/C/83/D/1023/2001 (2005). Retrieved January 21, 2007 from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/fa24fc7cd513751bc1256fe900525608? Opendocument (visited 21 January 2007). Human Rights Committee (HRC). (2002). Concluding observations of the Human Rights Committee: Sweden. 20/04/2002, U.N. HRC, 74th session, at para. 15, UN Doc. CCPR/CO/74/SWE (2002). Retrieved January 21, 2007, from http://www.unhchr.ch/tbs/ doc.nsf/(Symbol)/CCPR.CO.74.SWE.En?Opendocument. Human Rights Committee (HRC). (2006a). Concluding Observations of the Human Rights Committee: Canada. UN Doc. CCPR/C/CAN/CO/5. Retrieved January 21, 2007, from http:// www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.CAN.CO.5.En?Opendocument. Human Rights Committee (HRC). (2006b). Concluding Observation of the Human Rights Committee: United States. UN Doc. CCPR/C/USA/CO/3. 15 September 2006. Retrieved March 5, 2007, from http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ CCPR.C.USA.CO.3.En?Opendocument. Human Rights Council. (2006, June 30). Human Rights Council Report 2006. A/HRC/1/L.10. Retrieved November 19, 2007, from http://www.iwgia.org/graphics/SynkronLibrary/Documents/InternationalProcesses/HR%20Council/HRCouncil1streport2006.pdf. Indian and Northern Affairs Canada. (2000). Indigenous peoples and sustainable development in the Canadian Arctic. A Canadian contribution to the land use dialogue at the 8th Session of the
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International Court of Justice. (1949). Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, International Court of Justice Reports, Report No. 174. The International Covenant on Civil and Political Rights (CCPR), New York, 16 December 1966, UN General Assembly resolution 2200A (XXI). Entry into force 23 March 1976. Retrieved August 10, 2008, from http://www.unhchr.ch/html/menu3/b/a ccpr.htm. The International Covenant on Economic, Social and Cultural Rights (CESCR). UN General Assembly Resolution 2200A (XXI) of 16 December 1966. Entry into force 3 January 1976. Retrieved August 10, 2008, from http://www.unhchr.ch/html/menu3/b/a cescr.htm. International Human Rights Law and Practice – Committee of the International Law Association (ILA). (2004). Final report on the impact of findings of the United Nations human rights treaty bodies. Retrieved November 19, 2007, from http://www.ila-hq.org/html/layout committee.htm. International Labour Organization (ILO) Convention No. 107 concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, 5 June 1957, 328 U.N.T.S. 247. International Labour Organization (ILO) Convention No. 169 on indigenous and Tribal Peoples, 27 June 1989. Entry into force 5 September 1991. ILM 28:1382. 72 ILO Official Bull. 59. International Labour Organization (ILO). (1993). ILO convention on indigenous and Tribal Peoples, 1989 (No. 169): A manual. Retrieved March 13, 2008, from http://www.oit.org/public/english/standards/egalite/itpp/convention/index.htm. Inuit Circumpolar Converence (ICC). (2003). ICC executive council resolution 2003-1. Retrieved December 5, 2007, from http://www.inuit.org/index.asp?lang=eng&num=244. Jones, P. (1999). Human rights, group rights, and peoples’ rights. Human Rights Quarterly, 21(1), 80–107. Joona, T. (2005). The political recognition and ratification of ILO Convention No. 169 in Finland, with Some Comparison to Sweden and Norway. Nordic Journal of Human Rights, 23(3), 245– 372, 305–320. Kingsbury, B. (2003). Indigenous peoples in international law: A constructivist approach to the Asian controversy. In J. Anaya (Ed.), International law and indigenous peoples (pp. 211–254). Aldershot: Dartmouth Publishing Company; Burlington: Ashgate Publishing Company. Koivurova, T. (2002). Environmental impact assessment in the Arctic: A study of international legal norms. Aldershot: Ashgate Publishing, Ltd. Koivurova, T. (2008). From high hopes to disillusionment: Indigenous peoples’ struggle to (re)gain their right to self-determination. International Journal on Minority and Group Rights, 15, 1–26. Koivurova, T., & Hein¨am¨aki, L. (2006). The participation of indigenous peoples in international norm-making in the Arctic. Polar Record, 42(221), 101–109. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. (2003). International Court of Justice. Requested for Advisory Opinion, 2003 I.C.J. 428, 155. Lindroth, M. (2006). Indigenous-state relations in the UN: establishing the indigenous forum. Polar Record, 42(222), 239–248. MacKay, F. (2005). Cultural rights. In M. E. Salomon (Ed.), Economic, social and cultural rights: A guide for minorities and indigenous peoples (pp. 83–93). Minority Rights Group International. Retrieved January 18, 2007, from http://www.minorityrights.org/admin/Download/pdf/MRGECOSOC.pdf. Malanczuk, P. (1997). Akehurst’s modern introduction to international law. London: Routledge. Meijknecht, A. (2001). Towards international personality: The position of minorities and indigenous peoples in international law. Antwerpen: Intersentia–Hart. Metcalf, C. (2004, Winter). Indigenous rights and the environment: Evolving international law. Ottawa Law Review, 35(1), 103–140. Myntti, K. (1996). National minorities, indigenous peoples and various models of political participation. In F. Horn (Ed.), Minorities and their right of political participation (pp. 1–26). Juridica Lapponica No. 16. Rovaniemi, Finland: University of Lapland, The Northern Institute for Environmental and Minority Law.
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Nunavut Land Claims Agreement (Agreement between the Inuit of the Nunavut settlement area and her majesty the Queen in the right of Canada). Iqualuit, 25 May 1993. Retrieved March 9, 2008, from http://npc.nunavut.ca/eng/nunavut/nlca.pdf. Oldham, P., & Frank, M. A. (2008). We ´ the peoples. . .’: The United Nations declaration on the rights of indigenous peoples. Anthropology Today, 24(2), 5–9. Retrieved May 23, 2008, from http://www.blackwell-synergy.com/action/showPdf?submitPDF=Full+Text+PDF+ %285%2C273+KB%29&doi=10.1111%2Fj.1467-8322.2008.00569.x&cookieSet=1. Petition to the Inter-American Commission on Human Rights, Violations Resulting from Global Warming Caused by the United States (Inuit petition), December 7, 2005 by Sheila WattCloutier et al. with support of Inuit Circumpolar Council. Retrieved June 23, 2008, from http://www.inuitcircumpolar.com/files/uploads/icc-files/FINALPetitionICC.pdf. Reference Re Secession of Quebec. (1998, August 20). Supreme Court of Canada. 2 S.C.R. 217, Reprinted in 37 I.L.M. 1340, 1373 (1998). Retrieved March 7, 2008, from http://scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html. Request for a hearing on the relationship between global warming and human rights. (2007, January 15). Letter from Sheila Watt-Cloutier, Martin Wagner and Daniel Magraw to Santiago Canton, Executive Secretary, Inter-American Commission on Human Rights. Retrieved January 13, 2008, from http://www.ciel.org/Publications/IACHR Letter 15Jan07.pdf. The response of the Inter-American Commission on Human Rights. (2007, February 1). Letter from Ariel E. Dulitzky, Assistant Executive Secretary, Inter-American Commission on Human Rights to Sheila Watt-Cloutier, Martin Wagner and Daniel Magraw. Retrieved January 13, 2008, from http://www.ciel.org/Publications/IACHR Response 1Feb07.pdf. Rio Declaration on the Environment and Development, United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992. UN Doc. A/Conf.151/26/Rev.1 (Vol. 1) (1993), I.L.M 876. Rothwell, D. R. (1996). The polar regions and the development of international law. Cambridge: Cambridge University Press. Salick, J., & Byg, A. (Eds.) (2007). Indigenous peoples and climate change. Oxford: A Tyndall Centre Publication, Tyndall Centre for Climate Change Research. Sands, P., & Fabra, A. (2002). Report of the Joint OHCHR – UNEP Meeting of Experts on Human Rights and the Environment, 14–15 January 2002. Scheinin, M. (2000a). The Right to enjoy a distinct culture: Indigenous land and competing uses of land. In T.S. Orlin, A. Rosas, & M. Scheinin (Eds.), The jurisprudence of human rights law ˚ ˚ Akademi University. (pp. 159–222). Turku/Abo: Institute for Human Rights, Abo Scheinin, M. (2000b). The right to self-determination under the covenant on civil and political rights. In P. Aikio & M. Scheinin (Eds.), Operationalizing the right of indigenous peoples ˚ ˚ to self-determination (pp. 179–199). Turku/Abo: Institute for Human Rights, Abo Akademi University. Scrivener, D. (1999). Arctic environmental cooperation in transition. Polar Record, 35(192),51–58. Shelton, D. (2001). Environmental rights. In P. Alston (Ed.), Peoples’ rights (pp. 185–258). Oxford: Oxford University Press. Shelton, D. (2002). Environmental rights in multilateral treaties adopted between 1991 and 2001. Environmental Policy and Law, 32, 70–77. Simon, M. (1990). Proposed objectives for an Arctic sustainable and equitable development strategy. In Protecting the Arctic environment [Report on the Yellowknife Preparatory Meeting, Yellowknife NWT, Canada, April 18–23,1990]. Annex II: 15. Ottawa. The Stockholm Convention on Persistent Organic Pollutants. 23 May 2001. UN Doc. UNEP/POPS/COMF/4, App II (2001). 40 I.L.M. 532 (2001). Swepston, L. (1998). Economic, social and cultural rights under the 1989 ILO Convention. In F. Horn (Ed.), Economic, social and cultural rights of the Sami, international and national aspects (pp. 38–46). Rovaniemi: University of Lapland, Northern Institute for Environmental and Minority Law. Tahvanainen, A. (2005a). The treaty-making capacity of indigenous peoples. International Journal on Minority and Group Rights, 12, 397–419.
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Wagner, M., & Goldberg, D. M. (2004, December 14). An Inuit Petition to the InterAmerican Commission on Human Rights for parties to the framework convention on climate change. Buenos Aires. Retrieved October 30, 2007, from http://www.ciel.org/Publications/ COP10 Handout EJCIEL.pdf. Watt-Cloutier, S. (2003, December 10). Speech Notes for Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference. 9th Conference of Parties to the United Nations Framework Convention on Climate Change, Milan. Inuit in Global Issues, 17. ICC. Retrieved December 11, 2007, from http://www.inuitcircumpolar.com/index.php?ID=253&Lang=En. Willis D. (2004, July 30). Sea engulfing Alaskan village. BBC News. Retrieved October 23, 2007, from http://news.bbc.co.uk/1/hi/world/europe/3940399.stm.
Chapter 10
The Potential of the Convention on Biological Diversity to Address the Effects of Climate Change in the Arctic Thilo Marauhn1
Abstract By way of introduction, this chapter briefly illustrates the effects of climate change on biological diversity in the Arctic, taking into account the findings of the Biodiversity Working Group of the Arctic Council (CAFF). Focusing on the Arctic’s particular vulnerability, the chapter raises the question whether and how the Convention on Biological Diversity (CBD) is able to address the interface between climate change and biodiversity. On the basis of a textual analysis of the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the CBD, the author demonstrates that the CBD has recognised the “biodiversity – climate change” interface much better than the other two agreements have done. The chapter goes on to explain some of the steps taken by the CBD’s organisational backbone towards further developing this interface. Eventually, the chapter concludes that the CBD is not in a position to strongly contribute to mitigation efforts under the UNFCCC. Rather, the CBD regime will have to develop instruments strengthening the adaptive capacity of the Arctic. Supporting the role of secretariats in improving coordination between the CBD and the UNFCCC, the author finally argues in favour of a coherent management of environmental regimes in the Arctic.
10.1 The Effects of Climate Change on Biological Diversity in the Arctic It is widely recognised today that the polar regions are among the most vulnerable to climate change (Huebert & Yeager, 2008, p. 6). More specifically, polar regions are expected to experience the greatest rates of warming compared to other regions
T. Marauhn (B) Justus Liebig University Giessen, Licher Str 76, 35394 Giessen, Germany e-mail:
[email protected] 1
I want to express my particular gratitude to Ayse Martina B¨ohringer for her excellent research assistance.
T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 10,
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of the world.2 It is noteworthy, that in some projections, late-summer sea ice in the Arctic disappears almost entirely by the latter part of the 21st century (Intergovernmental Panel on Climate Change [IPCC], p. 46 with references). In light of these developments, the Arctic Council3 commissioned two of its Working Groups to study extensively the impact of climate change on the Arctic in 2000.4 With regard to effects of climate change on biological diversity in the Arctic, the Working Group on the Conservation of Arctic Fauna and Flora ([CAFF], n.d.) is particularly relevant. Its programme is based upon the CAFF Strategic Plan for the Conservation of Arctic Biological Diversity (CAFF, 1998)5 and biennial CAFF Work Plans.6 CAFF’s objectives include monitoring of Arctic biodiversity, conservation of Arctic species and their habitats, considering the establishment of protected areas, conservation of nature outside protected areas, and integration of conservation objectives and measures for economic sectors of the society. On the basis of the Arctic Climate Impact Assessment (ACIA, 2004) and the findings of CAFF, taking into account the Fourth Assessment Report of the IPCC and additional publications, it is possible to summarise the effects of climate change on biological diversity in the Arctic.7 These effects may be more significant than in other regions, first, because of the expected rates of warming and the resulting decrease of ice cover in the Arctic, and, second, because of the particular characteristics of the polar environment. Limited daylight in winter, low temperatures, and low levels of precipitation have only allowed very special species to survive in the Arctic environment. Those species are typically long-lived, they are slow-growing, and there are low rates of reproduction (ACIA, 2005, p. 543). Since those species are highly specialised, minimal effects on their environment may have dramatic consequences. While species living continuously in the Arctic must be specifically equipped to survive, the brief Arctic summer attracts migratory species of birds and mammals from elsewhere (Ibid., p. 543). Apart from the direct effects of climate change upon individual species, the
2
According to recent reports and documentation, average Arctic temperatures have increased at almost twice the global average rate in the past 100 years; see IPCC, Climate Change 2007. Synthesis Report, at p. 30. 3 For a critical account of the environmental strategies and policies of the Arctic Council towards the marine environment cf. VanderZwaag, Huebert, and Ferrara (2002). 4 The Arctic Climate Impact Assessment ([ACIA], 2004) is an international project of the Arctic Council and the International Arctic Science Committee (IASC), a non-governmental organization that facilitates cooperation in all aspects of Arctic research. Scope and mandate can be taken from a report of a meeting and workshop to plan a study of the impacts of climate change on Arctic regions which was held on February 28, and March 1, 2000, at Washington, DC, USA (ACIA, 2000). 5 The Strategic Plan for the Conservation of Arctic Biological Diversity was adopted in September 1998, it is available at http://arcticportal.org/uploads/RX/zN/RXzNc4KU8QKfhN KDw oQQ/ TheStrategicPlanforTheConservofArcticBiolDiv.pdf. Retrieved on August 30, 2008. 6 The biennial work plans are available at CAFF’s website at http://arcticportal.org/arctic-council/ working-groups/caff-document-library/caff-organizational-documents. Retrieved on August 30, 2008. 7 See, among others, the contributions collected in Iken (2003).
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habitat as such will be affected. To name but a few of those effects, the decrease of Arctic ice will affect freshwater habitats (Ibid., p. 547), fragmentation of habitats will impose limitations upon movement with consequences for fauna in particular (decline in nutrient supply) (Ibid., p. 555), invasive species may lead traditional Arctic species to move northward or to disappear,8 etc. Finally, in light of natural resources, including Arctic minerals, there will be increased human activity; the same will result from shipping as a consequence of changes in sea ice.9 This will seriously affect the Arctic habitat and eventually Arctic biological diversity. The 2005 ACIA Scientific Report groups the effects of climate change into six categories (ACIA, 2005, p. 567): potential changes in the ranges of species and habitats, changes in their amounts, possible genetic effects, changes in migratory habits, likely problems from non-native species, and implications for the designation and management of protected areas. It has recently been argued that there will be significant alterations in the ecology of the marine environment as a consequence of climate change, which, taken together with increased commercial uses of the Arctic Ocean, may eventually exacerbate the direct ecological damage caused by climate change itself (Huebert & Yeager, 2008, p. 8). Irrespective of the degree and the extent of any such effects, it is obvious that there will be significant consequences for Arctic biological diversity resulting from climate change. From the perspective of public international law the question arises whether these consequences are adequately addressed by any of the available multilateral environmental agreements. In the following, after illustrating the lack of inter-linkages emerging from the UNFCCC, this paper will describe how climate change figures in the CBD regime (2). Thereafter, this chapter will critically analyse the strengths and weaknesses of the CBD regime whether with regard to vulnerability or adaptive capacity (3). Subsequently, this chapter will look into ways to improve the system to better meet the challenges. To this end, it is necessary to distinguish between explicit references to climate change, treaty-law based approaches to interlinking climate change and biological diversity, and procedural steps towards regime coordination (4). The concluding part will focus on the need for a coherent management of regimes in the Arctic (5).
10.2 The CBD’s Recognition of the “Biodiversity – Climate Change” Interface Prima facie, international environmental law has developed far beyond other areas of law, taking into account the number of multilateral environmental agreements
8
The legal regime for invasive species, whether as a consequence of global transport or resulting from climate change, is subject to debate; cf. Bright (1999) and Kusek (2007). 9 The political and legal consequences of climate change in the Arctic with regard to human activities such as shipping and resource exploitation are the subject of an emerging vivid academic and political debate; see, among others, Newman (2004), Byers (2007), Pharand (2007), K¨onig and Neumann (2008) and Koivurova (2008).
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concluded, the number of institutions set up, and the amount of literature that has been published. However, as all reports about the state of the environment, in particular, the state of the international and global environment, indicate, the situation has improved, if at all, only at the margins. This discrepancy between normative development and factual improvement occurs for a number of reasons which can only be hinted at here. Still predominant is the so-called implementation deficit,10 which points to the fact that numerous environmental treaties have been agreed upon in the past, but their national (Redgwell, 2007) and international implementation has been modest. Another reason for the above-mentioned discrepancy (one might perhaps also name this a dilemma) is the fragmentation of international (environmental) law.11 The extent to which specific regimes overlap, the number of potential conflicts between such regimes, and the lack of coordination between such regimes is sizeable. It is partly the success of global normative developments and the rise of public international law which has given rise to such fragmentation, not only in the field of international environmental law but far beyond. Thus, it is no surprise that academia and politics are increasingly concerned about this. Many are exploring solutions to this problem,12 including the work of the International Law Commission (Koskenniemi, 2007; Conforti, 2007). Recently, the International Law Association ([ILA], 2008) has adopted a resolution in the field of international human rights law which underlines the need for a reconciliation approach, bringing back specialized areas of international law into the general framework of public international law. Such a reconciliation approach (one might also refer to “integration” instead) may also be required in the context of international environmental law. As has been illustrated in the introductory part of this paper, climate change has and will have numerous effects on biological diversity. This is true in general, but it is particularly relevant for the Arctic environment. Given this interrelationship between climate change and biodiversity, the question arises whether the two multilateral treaties which were adopted at the Earth Summit in Rio de Janeiro, Brazil, properly named the United Nations Conference on Environment and Development (UNCED), in June 1992,13 namely the United Nations Framework Convention on Climate Change ([UNFCCC], 1992) and the Convention on Biological Diversity ([CBD], 1992), take into account such linkages, either from the outset or in the course of treaty evolution.14 In other words, the question is whether factual interlinkages have led to a normative interrelationship, in particular, in light of the fact that the two treaties were partly negotiated and concluded in parallel. While a degree of interrelationship seems to be plausible, a word of caution may be voiced: the UNFCCC follows a dual strategy, aiming at mitigation of climate change and also
10
For a discussion of the implementation deficit cf. Bothe (2002). See generally Doelle (2004). 12 It may suffice to refer to the fairly balanced account of the debate provided by Hafner (2004). 13 For a discussion of the impact of UNCED on international environmental law see Malanczuk (1995). 14 On treaty evolution see Gehring (2007). 11
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at adaptation to the consequences of climate change; the CBD is concerned with the preservation of biodiversity. In a sense, the best approach towards the latter objective would be to prevent climate change at all; however, scientific evidence informs us that changes will occur and thus adaptation policies are increasingly important. As a consequence, there will be no easy answers, no “black and white” approach to the interface between the two regimes. The difficulty will be that none of the measures adopted in the processes of implementation should be at the expense of the objectives pursued by the other agreement. With respect to the Arctic environment it is noteworthy in this context that the Arctic is much more concerned with the consequences of climate change than with its causes. Thus, the primary question of this chapter is whether the CBD can provide additional normative guidance on mitigating, if not preventing, certain effects of climate change on the Arctic.
10.2.1 A Textual Analysis of the UNFCCC, the Kyoto Protocol and the CBD We will now first turn to the text of the two treaties, looking for explicit or implicit references to one another. Perhaps the most important reference of the UNFCCC to issues of biodiversity can be taken from Article 2 UNFCCC which includes the objective to stabilise concentrations of greenhouse gases “within a timeframe sufficient” to “allow ecosystems to adjust naturally to climate change”. As is well known, the Kyoto Protocol (Report of the Conference, 1998) moves beyond the Convention. Under the provisions of the Protocol,15 developed countries have pledged to reduce their emissions of greenhouse gases by an average of 5% below 1990 levels or about 20–30% below current business as usual projections by the year 2012. Three categories of measures are envisaged under the Protocol: first, the reduction of emissions; second, the use of sinks and other measures to help take greenhouse gases back out of the atmosphere; third, measures to achieve reductions outside the country to offset emissions within that country (the so-called flexibility mechanisms) (cf. Saura, 2004). The latter includes emissions trading, joint implementation and the Clean Development Mechanism. It is noteworthy that the Kyoto Protocol does not provide any guidance as to which measures may be preferable. In particular, the Kyoto Protocol ignores whether the measures adopted to meet its targets minimise negative impacts, contribute to addressing biodiversity challenges, or contribute to the problem. In terms of its text, therefore, the UNFCCC and the Kyoto Protocol are reluctant (both, in substance and procedure) to actively take into account other multilateral environmental agreements (Doelle, 2004, pp. 81–84). Apart from accepting (and assuming) that mitigation will allow ecosystems to adjust to climate change, there is no recognition of the inherent tension in some of the measures aiming at a
15
For an analysis of the Kyoto Protocol see Oberth¨ur and Ott (1999, passim).
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stabilisation and reduction of greenhouse gas emissions with the objectives of the CBD (or other multilateral environmental agreements). The CBD, while not a framework convention, nevertheless, may be described as an agreement “to mutually support national efforts to protect biodiversity” rather than an international consensus as to the actions to be taken (Ibid., p. 84). While the CBD, in linking environmental and developmental perspectives, makes use of sovereign rights as an instrument to preserve (global) biodiversity (e.g., with a preference for in-situ conservation),16 it, nevertheless, requires states parties to respect certain obligations in respect of their activities. Apart from the precautionary approach, this is primarily the obligation to cooperate in efforts to pursue the objectives of the Convention (Article 5).17 The CBD specifies the integration of biodiversity issues into pertinent plans, programmes and policies (Article 6(b)), in particular, in the context of the interface between climate change and the protection of biodiversity. It can be taken from Article 8(l) of the CBD that states are committed to manage relevant processes “as far as possible and appropriate” if there is a “significant adverse effect” on biodiversity. Article 10 of the CBD commits states to find ways to minimise adverse impacts from the use of biological resources, which includes use of biological resources for biological sequestration (Caparr´os Gass & Jacquemont, 2005). In a more technical way, Article 22 of the CBD is relevant.18 This Article is directly relevant with regard to the UNFCCC and its Kyoto Protocol. It holds that rights and obligations of existing conventions are not affected (by the CBD), unless the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. However, due to the fact that the UNFCCC does not include a matching link and that the Kyoto Protocol was not in existence at the time of the conclusion of the CBD, “this protection against climate change mitigation measures harmful to biodiversity is legally minimal and practically nonexistent” (Doelle, 2004, p. 86). At the same time, the obligation under the CBD to prevent “serious damage or threat to biological diversity” makes it clear that states parties to the CBD cannot read the Kyoto Protocol as an implied right of states to emit greenhouse gases up to the levels allowed under the Protocol; rather, Kyoto – from the perspective of the CBD – can only be a starting point since climate change as such poses a risk to biodiversity and to the objectives of the CBD. The CBD, hence, is basically suited to address matters related to climate change. One might argue that it has its own potential to protect biological resources from the effects of climate change. This, however, is not only a somewhat generous reading
16
For an analysis of this approach see Wolfrum (1996, pp. 378–383). Article 5 reads in full: “Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity”. 18 Article 22(1) of the CBD reads in full: “The provisions of this Convention shall not affect the rights and obligations of any Contracting Party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity”. For a close discussion of Article 22 see Matz (2005, pp. 188–193). 17
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of the CBD; it furthermore raises the question of how such a broadly construed obligation which lacks the specificity normally required for effective implementation of international agreements can be put into practice. As will be shown, this can be only done on the basis of a cooperative approach both at the international and at the national level between those involved in the implementation of the UNFCCC with the Kyoto Protocol and of the CBD. So far, we have demonstrated that the objectives of the CBD and of the UNFCCC with the Kyoto Protocol are closely inter-related. Climate change is the major cause of biodiversity loss and one of the obligations under the CBD is to identify and address such threats. This is matched by the objective of the UNFCCC to stabilise greenhouse gas concentrations within a timeframe sufficient to allow ecosystems to adapt to climate change (Article 2 UNFCCC). With regard to the Arctic it is important to note that the Arctic environment is relevant in so far as plant life, soils, and the oceans have a role to play in the management of the carbon cycle. The conservation and enhancement of terrestrial, coastal, and marine ecosystems may also be important with regard to providing sinks for greenhouse gases (Ad hoc technical expert group, 2003, part “Foreword”). Identifying some of the measures envisaged by the UNFCCC and the Kyoto Protocol with regard to their effects on biological diversity, it may be argued that mitigation options for climate change such as energy conservation and improved efficiency are biodiversity neutral. The use of biomass as well as the use of hydropower, however, may lead to competing land use and perhaps even to pollution. Nuclear power may have a negative effect on biodiversity due to the problem of nuclear waste as well as the possibility of accidents. Carbon storage in living organisms may contribute to biodiversity but it should not be pursued in isolation (cf. Doelle, 2004, pp. 88–91).
10.2.2 CBD Activities Relevant for the Development of the Climate Change Interface While the CBD, so far, has hardly ever addressed the specific problems of the Arctic environment, there are several CBD COP decisions which indicate that the CBD regime is prepared to move in this direction. It may even be argued that, should the Arctic states initiate such a process, the CBD will take up the effects of climate change on the Arctic as part of its treaty and regime development. A good example is COP decision V/3 of 2000 (Convention on Biological Diversity. Conference of the Parties [CBD COP], 2000, pp. 74–80), endorsing the results of the Expert Consultation on Coral Bleaching, held in Manila in October 1999. The decision requests the Executive Secretary to integrate the issue of coral bleaching into the programme of work on the conservation and sustainable use of marine and coastal biological diversity and to develop and implement a work plan on coral bleaching in cooperation with the UNFCCC (Ibid., paras. 2 and 4). The Annex provides interesting insights. It promotes the investigation of the tolerance limits and adaptation capacity of coral reef species to acute and chronic increases
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in sea-surface temperature and the investigation of the relationship among largescale coral-bleaching events, global warming and the more localised threats. Similar approaches may be relevant in the Arctic context. Apart from coral bleaching, the protection of forests was taken up as an issue at the interface between climate change and biodiversity protection. COP decision V/4 of 2000 (CBD COP, 2000, pp. 81–84, para. 11), requests the Subsidiary Body on Scientific, Technical, and Technological Advice (SBSTTA) to consider in collaboration with the appropriate bodies of the UNFCCC and the IPCC the impact of climate change on forest biological diversity.19 Going beyond this, para. 18,20 of the same decision requests the SBSTTA to prepare scientific advice in collaboration with the appropriate bodies of the UNFCCC in order to integrate biodiversity considerations in the implementation of the UNFCCC and the Kyoto Protocol. Following from this, COP decision VII/15 of 2004 (CBD COP, 2004a, pp. 250–252) welcomes the report of the Ad Hoc Technical Expert Group on Biodiversity and Climate Change (AHTEG) as scientific advice. According to para. 2 of the decision, the COP invites parties and bodies to make use of the report on climate change and biodiversity prepared by the AHTEG in order to promote synergies. Furthermore, para. 8 of the decision notes that the ecosystem approach provides a framework for the integrated management of land, water, and living resources and that its application could facilitate the formulation of climate change mitigation and adaptation projects. Indeed, the ecosystem approach is decisive in integrating global environmental regimes. In order to make use of this approach for the benefit of the Arctic environment, however, it will be necessary to further specify the concept within international environmental law.21 An important step towards making use of the interface between climate change and biodiversity and towards integrating pertinent regimes is COP decision VIII/30 (CBD COP, 2006b, pp. 270–272). The parties, according to para. 8 of this decision, request the SBSTTA to develop draft guidance on how to integrate relevant climate change impacts and response activities into the programmes of work of the CBD, building on the findings of the reports on biodiversity and climate change (see also Ad hoc technical expert group, 2003), especially taking into account vulnerable 19
Paragraph 11 reads in full: “Requests the Subsidiary Body on Scientific, Technical and Technological Advice to consider before the sixth meeting of the Conference of the Parties, where appropriate and feasible in collaboration with the appropriate bodies of the United Nations Framework Convention on Climate Change and the Intergovernmental Panel on Climate Change, the impact of climate change on forest biological diversity;” (UNEP, 2000). 20 Paragraph 18 reads as follows: “Requests the Subsidiary Body on Scientific, Technical and Technological Advice, prior to the sixth meeting of the Conference of Parties, to prepare scientific advice, where appropriate and feasible in collaboration with the appropriate bodies of the United Nations Framework Convention on Climate Change and the Intergovernmental Panel on Climate Change, in order to integrate biodiversity considerations, including biodiversity conservation, in the implementation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol;” (CBD COP, 2000). 21 So far, the ecosystem approach has been primarily relevant in the context of international water law and the law of the sea (MacIntyre, 2004).
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regions, the characterisation of tools and methods in terms of effectiveness, costs, and ecosystem vulnerability, and best practices. Several studies have been commissioned to address the interface. They have contributed to the development of cooperation between the Secretariats of the three multilateral agreements, namely the UNFCCC, the Kyoto Protocol, and the CBD. In October 2003, the already mentioned paper on “Interlinkages between Biological Diversity and Climate Change” was published (Ibid.); as has explained above, the AHTEG contributed to the preparation of this report. In May 2006, another study was published, aiming at translating objectives into practice: “Guidance for Promoting Synergy among Activities Addressing Biological Diversity, Desertification, Land Degradation and Climate Change” (Guidance for promoting, 2006). In addition, the IPCC prepared a paper on “Climate Change and Biodiversity” (IPCC, 2002). Finally, the three secretariats of United Nations Convention to Combat Desertification (UNCCD), UNFCCC and CBD have identified options for enhancing cooperation.22 These options include (1) the facilitation of exchange of information and experience, including improving inter-accessibility of available web-based data, (2) cooperation in communication, education and public awareness programmes, and (3) the promotion of complementarity among the national biodiversity strategies and action plans (NBSAPs) under the CBD, the national action programmes (NAPs) of the UNCCD, and the national adaptation programmes of action (NAPAs) for least developed countries of the UNFCCC (“Joint liaison group”, n.d.). A positive example of such pragmatic cooperation, taken in response to para. 8 of COP decision VIII/30, is the establishment of the Adaptation Planning Database.23 This provides web-based guidance on the integration of biodiversity within adaptation planning and includes examples of case-studies of biodiversity integration within adaptation planning.24
10.2.3 Institutional Re-Organization While the treaties as such do not provide much guidance with regard to the integration of pertinent multilateral environmental agreements, there are at least two institutional developments which deserve particular attention in the context of our topic. In 2001, an Ad Hoc Technical Expert Group on biodiversity and climate change was established by the SBSTTA to carry out an assessment of the interlinkages 22
The so-called Joint Liaison Group was established in August 2001. The COPs of each of the conventions have encouraged the secretariats to go along these lines, cf. CBD decision VI/20, CCD decision 12/COP.6, UNFCCC decision 13/CP.8. 23 Web-based information is available from Adaptation Planning Database at http://adaptation. cbd.int/. Retrieved August 30, 2008. 24 The case studies include the National Climate Change Adaptation Framework for Canada of April 5, 2007 (Intergovernmental Climate Change, 2005).
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between biodiversity and climate change.25 A first technical report was issued in 2003, based on expertise and knowledge provided by the IPCC. The mandate of AHTEG is to analyse possible adverse effects on biological diversity of measures that might be taken or are being considered under the UNFCCC and its Kyoto Protocol, to identify factors that influence biodiversity’s capacity to mitigate climate change and contribute to adaptation and the likely effects of climate change on that capacity, and to identify options for future work on climate change that also contribute to the conservation and sustainable use of biological diversity. The AHTEG is equipped with scientists involved in the IPCC process and experts from the UNFCCC process as well as its secretariat. It meets on a regular basis. As a second step, taken again in 2001, a Joint Liaison Group (JLG) between the CBD, UNFCCC, and UNCCD was established. It is an informal forum for exchanging information, exploring opportunities for synergistic activities and increasing coordination and it is composed of the officers of the conventions’ scientific subsidiary bodies and secretariats (“Joint liaison group”, n.d.). The COPs of the three multilateral environmental agreements adopted at Rio have encouraged the JLG to facilitate cooperation between the three agreements. The JLG concentrates on developing cooperative activities that promote synergy at the national and local levels. At the time of writing, the JLG has held eight meetings.26
10.3 Strengths and Weaknesses of the CBD Regime with Regard to Climate Change So far, this chapter has briefly described the CBD’s approach towards climate change. There are three different levels which have proved to be relevant: first, primary obligations included in the text of the CBD itself (see above Section 10.2.1); second, decisions taken by the organs established under the CBD on matters of substance and procedure (see above Section 10.2.2); third, institutional re-arrangements and innovations (see above Section 10.2.3). It is against this background that weaknesses and strengths of the CBD regime with regard to climate change may be addressed. While the CBD is the analytical
25
The Ad Hoc Technical Expert Group was established on the basis of paragraph 5 of Recommendation VI/7 of the SBSTTA (Biological diversity and climate change, including cooperation with the United Nations Framework Convention on Climate Change), which reads as follows: “5. Initiates, as a first step in the wider assessment referred to in paragraph 4 above, a pilot assessment to prepare scientific advice to integrate biodiversity considerations into the implementation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol, and, for this purpose, establishes an ad hoc technical expert group in accordance with the modus operandi of the Subsidiary Body on Scientific, Technical and Technological Advice and the terms of reference provided in the annex to the present recommendation, to report on progress to the Subsidiary Body at its seventh meeting;” (Recommendation VI/7, 2002, pp. 83–86). 26 The eighth meeting was held in Madrid on September 12, 2007; for the report see http://www.cbd.int/doc/reports/jlg-08-report-en.pdf (visited on August 30, 2008).
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focal point, the ability of the CBD regime to address the effects of climate change on biological diversity must be discussed in the broader context of the quest for an integration of global environmental regimes (Doelle, 2008). While the following considerations will not take up the fragmentation of global climate change governance (which has been recognised as a problem with respect to existing agreements dealing with air, ozone and climate change) as a separate issue, we will discuss whether it is possible to move from conflicts to synergies27 in the broader context related to the governance of global environmental change.28
10.3.1 Weaknesses of the CBD’s Approach to Climate Change To begin with, it is possible to identify four major weaknesses which are relevant not only for the CBD’s relationship to the climate change regime but also for the interrelationship between various multilateral environmental agreements. • First, differences in membership potentially weaken any move towards increased coherence in the interpretation and application of multilateral environmental agreements. It takes only one country, not being a party to a particular agreement, to prevent the establishment of formal links between two regimes (whether based on a memorandum of understanding or on any other related instrument which might provide a legal basis for cooperation between the applicable regimes). • Second, there is no mechanism which allows the development of global priorities. Notwithstanding UNEP and other possible forums, there is neither an institutional framework for global environmental governance nor a framework laying down substantive or procedural obligations. In the absence of normative hierarchy, each multilateral environmental agreement is equally relevant for states parties.29 Whether it is possible to harmonise obligations arising under various environmental agreements by way of interpretation depends on the actual wording, the context, and the object and purpose of the environmental agreements concerned.30 • Third, due to the international community’s approach to environmental issues, namely, to tackle them on an issue by issue basis, individual treaty provisions of different multilateral environmental agreements are hardly coordinated among themselves. To give but one example, some substitute substances envisaged by the Montreal Ozone Protocol contribute to the greenhouse gas effect which the UNFCCC and the Kyoto Protocol want to stabilise or even reduce. Thus, even
27
See, among others, Oberth¨ur and Gehring (2006, passim). Valuable insights are provided by Winter (2006, passim). 29 The question to be addressed first is whether there is a conflict at all or whether overlap does not necessarily lead to conflicts (Matz, 2005, pp. 8–18). 30 On interpretation as a mechanism to manage potential and existing conflicts between treaties (Matz, 2005, pp. 274–311). 28
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within one particular field of environmental regulation, namely climate change governance, there are conflicting obligations which stem from the issue by issue approach adopted by the international community. Nevertheless, it has been pointed out that this approach at least enables states parties to implement their issue specific commitments in an integrated manner consistent with their vision for a sustainable future. • Fourth, as a consequence of the above, there is little coordination of treaties at the international level. Rather, it is up to individual states to explore linkages and to accommodate their various obligations (Doelle, 2004, pp. 96–97). This may have the effect of even more fragmentation should states parties come to different conclusions on how to accommodate potentially conflicting obligations. It would go beyond the scope of this chapter to discuss in detail the approaches of treaty law towards overlapping or even conflicting obligations. However, some aspects may be taken up here. To begin with, it is important to point out that the weaker the institutional framework of a multilateral environmental agreement the more diverse may be the interpretation and application by individual states parties. Given that public international law is still a largely decentralised system of law, with little hierarchy and a lot of horizontal relations, this conclusion only states the obvious. Basically, there are three options to address this problem and to avoid the centrifugal forces thereof. The first option is to include references to existing multilateral environmental agreements in each new agreement, either in a general way (such as Article 22 CBD), or in a specific way, referring to particular obligations. Given the complexity of negotiations, the success of such an approach is not very likely.31 A second option is to leave everything as it is and wait for the issue to be submitted for dispute settlement. The risk is that either the matter will never be settled (leaving numerous grey areas) or if settled might be so at the expense of cooperative relations between the states that are party to the various environmental regimes.32 The third option is to find pragmatic ways of coordinating multilateral environmental agreements by formal (memoranda of understanding) or informal means (cooperation between organs established by multilateral environmental agreements).33 We will come back to the third approach towards the end of this chapter. The question remains whether there are particular weaknesses of the CBD regime with regard to its ability to address the effects of climate change. Comparing the CBD to the UNFCCC, the climate change regime as based on the Convention and on the Kyoto Protocol seems to be weaker than the biodiversity regime. The UNFCCC 31
Matz (2005, pp. 191–194) points to difficulties in the interpretation of Article 22 CBD. She also refers to Wolfrum and Matz (2000, pp. 475–476). 32 As has recently been pointed out dispute settlement procedures in international environmental law are rarely used, and multilateral environmental agreements do not provide much creativity when it comes to dispute settlement procedures (Ulfstein, 2007, p. 131). 33 This is also discussed by Matz (2005, pp. 340 et seq.). She places the institutional coordination of treaties within global governance structures. She also discusses cooperative mechanisms between existing multilateral environmental agreements (Ibid., pp. 194–209).
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fails to refer to other multilateral environmental agreements. It is thus limited to the general rules on treaty interpretation and application. In contrast, there are various provisions of the CBD which take into account the causes, the effects and the management of climate change. However, what might be considered a regime-specific weakness of the CBD in addressing the effects of climate change is the very essence of the CBD’s approach to the management of biodiversity, namely its use of state jurisdiction as a means of ensuring compliance.34 This approach is indeed suitable for other than global environmental problems; and while biodiversity loss in general is of global concern, its effects and measures to redress such loss are essentially local, at most regional. Thus, there is an inherent logic in the approach of the CBD; however, this inherent logic is only of limited relevance for climate change which is an essentially global problem, even though the effects in some regions are more severe than in others. Unfortunately, the effects of climate change on the Arctic environment seem to be more serious than elsewhere. If this is so, then the CBD may serve as a tool to demand “more” in terms of mitigation and adaptation with regard to the Arctic.35
10.3.2 “Adaptive Capacity” of the CBD with Regard to Climate Change While the CBD is far from being an optimum instrument for preventing biodiversity loss, it enjoys a certain “adaptive capacity” with regard to climate change. “Adaptive capacity” as used here, refers to the “learning aptitude” of the CBD regime. Article 22 of the CBD may be read as a door opener in terms of “learning aptitude” since it takes into account other environmental agreements from the very beginning. While the CBD does not alter the substance of such agreements, it clarifies that whenever there is room for (interpretative and other) alternatives, whenever there is an element of discretion, a margin of appreciation in the implementation of such other environmental agreements, allowing for taking into account the concerns of the CBD, the objectives of the CBD regime should prevail. Furthermore, as has been pointed out above, the CBD implicitly refers to climate change and its consequence, not least because it cannot be disputed that climate change has a negative effect on biodiversity. It may thus be argued, that the CBD as such already includes elements promoting its “learning aptitude”. What is, however, more important than the substance of the CBD’s text is the interpretation and application of the Convention by the organs established thereunder and by its states parties. As has been pointed out elsewhere, the CBD has the potential to influence individual state’s behaviour with regard to climate change in terms of acceptance of the Kyoto commitments, in terms of increased mitigation 34
See, among others, Marauhn (2003). This also means to consider the Arctic as a region for the purpose of international governance (Keskitalo, 2004).
35
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efforts, in terms of negotiating incentives and power, and in terms of accommodating overlapping concerns at the national level (Doelle, 2004, p. 103). At the international level the creation of new subsidiary organs (in particular, the Ad Hoc Technical Expert Group on Biodiversity and Climate Change) and the push for new arrangements as between environmental regimes illustrates that meaningful treaty organs with meaningful powers are an essential prerequisite for the development of integrative approaches towards environmental governance. What is particularly noteworthy is that the CBD has developed a working cross-cutting initiative on climate change and biodiversity. A very practical example of the impact of CBD discussions on the implementation of the UNFCCC and the Kyoto Protocol is UNFCCC COP (2001, pp. 54–55) decision 11/CP.7 on land use, land-use change and forestry. Being part of the so-called Marrakesh Accords,36 it requests the SBSTTA to develop definitions and modalities for including afforestation and reforestation project activities, taking into account “impacts on biodiversity and natural ecosystems”. Furthermore, the decision affirms that “the implementation of land use, land-use change and forestry activities contributes to the conservation of biodiversity and sustainable use of natural resources”. In effect, this may prevent implementing measures under the UNFCCC and the Kyoto Protocol being taken at the expense of biological diversity.37 Finally, the CBD organs have been rather successful in awareness-raising among stakeholders and communities. To give but one example, the 2007 International Day for Biological Diversity focused on “Biodiversity and Climate Change” (The international day, 2007). Taken together, the adaptive capacity of the CBD regime is fairly good, though far from perfect. Nevertheless, it provides an example of how to integrate other environmental concerns into an existing multilateral environmental regime.
10.4 Improving the CBD Regime with Regard to Climate Change Effects in the Arctic Without discussing the conclusions already at this point it may be argued that the UNFCCC and the CBD regimes should not be merged but that more cooperative mechanisms should be enhanced. In order to distinguish two levels of argument, the following part distinguishes short-term pragmatic improvements (“on the ground”) and mid-term conceptual issues.
36
For an interesting account of the socio-economic and environmental implications of the Marrakech Accord after US repudiation of the Kyoto Protocol see L¨oschel and ZhongXiang (2002). 37 A valuable toolkit on the integration of biodiversity considerations into climate change mitigation measures has been published by the German Federal Environment Agency (Choudhury, 2004).
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10.4.1 Short-Term Pragmatic Improvements The CBD is not in a position to strongly contribute to mitigation efforts under the UNFCCC. Rather, the CBD regime – and this is of particular importance with regard to the Arctic environment – will have to develop instruments strengthening the adaptive capacity of particular regions. In order to conserve biodiversity it is necessary to preserve habitats so as to facilitate long-term adaptation of biodiversity. This necessitates an improved understanding of linkages between climate change and biodiversity in order to fully integrate biodiversity considerations into adaptation plans (Ibid.). Indeed, numerous adaptation activities have been designed or planned, but only few have been implemented (Guidance for promoting, 2006, p. 30). A new implementation deficit must be avoided if the CBD really wants to contribute to the mitigation of climate change effects on biodiversity. Apart from scientific and technological knowledge, this necessitates the inclusion of local know-how, as has been incorporated into the design of the Arctic Vulnerability Study.38 Some major gaps and challenges have been identified and should be addressed in the near future, such as data collection, an analysis of likely future changes in ecosystems, research into adaptive capacities of particular biological resources (Ibid., p. 35), and increased participation of local (including indigenous) actors. Information about adaptation activities should also be made available in order to get a better idea of best practice; the clearing-house mechanism of the CBD is suitable to this end. To take up a particular example, the red knot, which is a medium sized shorebird breeding in tundra and in the Arctic Cordillera in the far north of Canada, Europe, and Russia, could be particularly affected by global climate change, since its effects, as explained above, may be greatest at the latitudes where this species breeds and winters. The red knot is listed in Annex 2 of the African-Eurasian Waterbird Agreement ([AEWA], 1995)39 as well as in Appendix I of the Convention on Migratory Species.40 Under both agreements conservation measures are required. However, it will not be sufficient to preserve certain habitats as part of such conservation measures but there must be a linkage between biodiversity protection and adaptation strategies in order to preserve a minimum of habitat for the red knot. This may contribute to making even more use of Arctic biodiversity and ecosystems as an ideal test case for measuring progress towards the CBD’s 2010 target to significantly reduce the rate of biodiversity loss (UNEP, n.d.). What is helpful towards this end is the monitoring of Arctic biodiversity through the Circumpolar Biodiversity Monitoring Program (CBMP) which is a valuable contribution to the CBD
38
References taken from the CBD Technical Series no. 25 (Guidance for promoting, 2006, p. 30). The AEWA was developed under the CMS (see infra the next note); it was concluded on 16 June 1995 in the Hague, the Netherlands and entered into force on 1 November 1999 (AEWA, 1995). 40 The Convention on the Conservation of Migratory Species of Wild Animals ([CMS], 1979) is also known as CMS or Bonn Convention. It was opened for signature on June 23, 1979, and it entered into force on November 1, 1983. 39
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2010 target and to the implementation of the Convention as a whole.41 Similarly, the Arctic, as the origin of major flyways, has become the focus of the portfolio of UNEP World Conservation Monitoring Centre (UNEP-WCMC) and UNEP/GRIDArendal jointly with the Convention on Migratory Species and the African-Eurasian Waterbird Agreement (AEWA). As can be seen from this example, it is important that the CBD expands its interface with other multilateral environmental agreements. Those of particular relevance to the Arctic environment have recently been taken up in a study on the subject matter (Huebert & Yeager, 2008, p. 37). Further improvements relate to the need for a documentation of the current state of the Arctic’s biodiversity, building upon the ACIA report of 2004. All three levels of biodiversity (genes, species, and ecosystems) must be included in any study on the effects of climate change on Arctic biodiversity (ACIA, 2005, p. 540). Also, as indicated by the 2003 report of the CBD Secretariat on interlinkages between biological diversity and climate change (Ad hoc technical expert group, 2003), traditional knowledge and the people’s observations of climate change as well as its impacts on their communities are important in order to provide future adaptation options. The above-mentioned CBMP, as based on a 2002 CAFF decision, must be developed further (Z¨ockler & Harrison, 2004, p. 2). The CBMP is strategically linked to other international conservation programmes, such as the Arctic Monitoring and Assessment Programme (AMAP), International Polar Year, the International Arctic Science Committee (IASC) and the CBD.42 Another relevant programme is the CircumArctic Rangifer Monitoring and Assessment Network (CARMA) which is a second initiative endorsed by the Arctic Council to create a monitoring network of all wild Rangifer subspecies (ESSA Technologies, 2007, p. 1). CBD COP-7 provides the framework for integrating those programmes with the adoption of the Global Indicators to Assess Progress to the 2010 Targets. They are particularly relevant to Arctic conservation and they are consistent with the CBMP (Petersen et al., 2004, p. 12).43 It is hard to say whether or not all these measures are more or less adequate to address the effects of climate change on the Arctic biological diversity from the perspective of the CBD. Some conclusions may be drawn, however, from a nonconclusive list of activities related to the interface between climate change and biodiversity with regard to the Arctic. In January 2006, a regional report on the Arctic was included in the agenda of a meeting of the Ad Hoc Open-Ended Inter-Sessional Working Group on Article 41
The implementation of the CBMP can best be understood as a response of the CAFF Working Group to the ACIA findings; the CBMP was formally launched in September 2005 in cooperation with the United Nations Environment Programme – World Conservation Monitoring Centre (UNEP-WCMC) in Cambridge, England. It is the primary vehicle through which CAFF will follow up on ACIA. For further information see CAFF (n.d.). For the framework document see Petersen, Z¨ockler, and Gunnarsd´ottir (2004). 42 For further details see Circumpolar Biodiversity Monitoring Program (n.d.). 43 The CBMP also is consistent with the Ramsar Convention.
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8j and related provisions of the CBD, dealing with indigenous peoples (CBD COP, 2006a).44 The CBD Secretariat was involved in the Fifth Trondheim Conference on Biodiversity in 2007.45 In 2007, the subject matter was included in the UNFCCC SBSTA agenda (item 3) (UNFCCC, 2007). Already in 2005, Canada’s Climate Change Impacts and Adaptation Program funded six projects to develop tools for communities that simplify the process of assessing risks and planning adaptation to climate change (Natural Resources Canada, n.d.). Recently, in March 2008, the government of Finland hosted an international expert meeting on responses to climate change for indigenous and local communities and the impact on their traditional knowledge related to biological diversity (Secretariat of the CBD, 2008). In February 2008, the CBD Secretariat published a fact sheet on climate change and COP decision VIII/30 also takes up the issue of adaptation and mitigation (Fact sheet, 2008; CBD COP, 2006b). All this illustrates that the CBD’s contribution to address the effects of climate change is an ongoing issue under consideration. Most of the measures taken are, however, of a pragmatic nature, and there are no signals of a dramatic change.
10.4.2 A Conceptual Note on the Role of Secretariats in Improving Coordination Between the CBD and the UNFCCC Having had a closer look at the CBD’s approach to climate change, and in particular to potential contributions to deal with the effects of climate change in the Arctic environment, it seems to be important to go beyond the pragmatic approach discussed above. The establishment of the Joint Liaison Group between the secretariats indicates that cooperation between organs of multilateral environmental agreements may be a way to overcome fragmented regimes and to integrate environmental concerns into a comprehensive policy approach. This paper has shown that the interrelationship between climate change and biodiversity in light of the Arctic’s particular vulnerability should not only be an issue of analysis but also an incentive for action, in other words: it should be a matter of concern also from the legal and administrative 44
As can be taken from paragraph 1 of the decision related to the composite report, the Conference of the Parties “Takes note with appreciation of the information prepared for the fourth meeting of the Ad Hoc Open-ended Inter-Sessional Working Group on Article 8(j) and Related Provisions and in particular, the completion of phase one of the composite report, which includes the report on traditional-knowledge registers and the regional Arctic report;”. According to paragraph 6, the Conference of the Parties “6. Notes with concern the specific vulnerabilities of indigenous and local communities, inter alia, of the Arctic, small island States and high altitudes, concerning the impacts of climate change and accelerated threats, such as pollution, drought and desertification, to traditional knowledge, innovations and practices, and requests further research be conducted, subject to the availability of resources, into highly vulnerable indigenous and local communities, with a focus on causes and solutions, with the outcomes of the research to be made available to the Working Group on Article 8(j) and Related Provisions for attention at its fifth meeting;”. 45 Please consult the website http://www.trondheimconference.org/. Retrieved August 30, 2008.
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point of view. The need to develop synergies between multilateral environmental agreements seems to be generally accepted today, in particular, with a view to adaptation and mitigation. However, traditional approaches of international law towards developing regime coherence seem to provide useful tools only to a limited extent. It is thus important to consider new modes of governance which should be integrated into the existing regimes. Traditionally, the integration of multilateral environmental agreements occurred at the national level in the context of national implementation. States parties to various agreements with overlapping and sometimes conflicting obligations were eager to find ways to meet all obligations imposed upon them. To this end pragmatic approaches were developed and national policy priorities gained influence upon the balancing and integration of multilateral environmental agreements at the international level. Given that traditional treaty law does not provide comprehensive rules on overlaps and conflicts (neither by way of interpretation nor by comprehensive dispute settlement), the better way out seems to be a strengthening of treaty coordination through cooperation between treaty organs, in particular, through cooperation between secretariats of multilateral environmental agreements. Indeed, numerous measures have been developed in this field. A broad variety of memoranda of understanding have been concluded. The CBD Secretariat has been particularly active in this regard. Thus, biodiversity governance has been improved by the establishment of the Biodiversity Liaison Group in 2004 (CBD COP, 2004b, p. 329) and by the conclusion of memoranda of cooperation with the secretariats of the Ramsar Convention on Wetlands (1996, 2005), (CBD COP, 1996, para. 2, pp. 112–114) Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1996) (Ibid.)46 and the CMS (1996) (Ibid.). Joint Work Plans and Joint Work Programs have also been developed at this level. As among the Rio Conventions (UNFCCC, CBD and UNCCD) the Joint Liaison Group was established in 2001.47 A memorandum of cooperation, however, has only been concluded so far between the secretariats of UNCCD and CBD (1998) (CBD COP, 1998, paras. 2 and 3). Cooperation between the secretariats of UNFCCC and CBD is much less formal and more pragmatic; one might also argue that it is less intense. Whenever relations between secretariats of multilateral environmental agreements are formalised questions concerning their legal status arise. First of all, the competence of the secretariat to conclude memoranda of cooperation must be discussed. As far as the CBD is concerned, Article 24(1)(d), enables the secretariat to “coordinate with other relevant international bodies and, in particular to enter into
46
The pertinent paragraph of the decision reads as follows: “Endorses the memoranda of cooperation entered into by the Executive Secretary with the secretariats of the Convention on Wetlands of International Importance, especially as Waterfowl Habitat, the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Convention on the Conservation of Migratory Species of Wild Animals, and encourages the development of further such arrangements with relevant international biological diversity-related bodies, including regional conventions;”. 47 The so-called Joint Liaison Group was established in August 2001. The COPs of each of the conventions have encouraged the secretariats to go along these lines, cf. CBD decision VI/20, CCD decision 12/COP.6, UNFCCC decision 13/CP.8.
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such administrative and contractual arrangements as may be required for the effective discharge of its functions”. Whether this provision is read narrowly or broadly may be decisive as to how far coordination may go. The reference to “administrative and contractual arrangements” may indicate limitations, whereas the reference to the “effective discharge of its functions” is much broader. Second, the question arises whether or not a particular memorandum of cooperation entails legally binding obligations – and even more, whether there are any legal implications for the states parties to the Convention. It would go beyond the scope of this chapter to address all those matters in detail. However, it is worthwhile to closely consider developments in this field. In light of the above discussion of CBD activities in the field of climate change, there are reasons to believe that this approach – which may be considered to form part of international or global administrative law48 – will eventually facilitate coherent treaty implementation. This may be a necessity in view of the de facto interrelationship between biodiversity loss and climate change.
10.5 The Need for a Coherent Management of Environmental Regimes in the Arctic By way of conclusion, it is more than obvious that there is a need for a coherent management of environmental regimes globally, but in particular with regard to such a sensitive environment as can be found in the Arctic. While climate change will occur, it can, nevertheless, be mitigated and ecosystems can be supported in their adaptive capacity. This necessitates many more efforts than hitherto. Among the most important is the need to develop a coherent approach to climate change not only on the basis of the UNFCCC and the Kyoto Protocol (both of which are relatively weak). There is an urgent need to explore and make use of the potential of other agreements for addressing the effects of climate change on the Arctic. As has been shown, the CBD is relatively well equipped to move in this direction. However, this will only be successful if states move beyond traditional ways of treaty coordination such as treaty interpretation and dispute settlement. What is necessary is the development of modern approaches towards treaty administration, one might argue, towards administrative law within multilateral regimes. The pragmatic approaches of the secretariat of the CBD have proven to be successful on the ground. They have actually opened a door for the CBD to address climate change issues – and they have had a policy impact. Whether it is possible to move beyond such pragmatism and to develop a more coherent approach, perhaps even a conceptual one, remains to be seen. Academic analysis and pertinent discussions may contribute to this process, thus also providing a modest contribution to the management of the effects of climate change on the Arctic and other sensitive regions.
48
Whether the notion of “global administrative law” as employed by Kingsbury, Kirsch, and Stewart (2005, pp. 15 et seq.), really fits here is debatable. However, the doctrinal approach is comparable.
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Part III
Looking Inwards
Chapter 11
Is Adaptation Governable in the Arctic? National and Regional Approaches to Arctic Adaptation Governance Monica Tennberg
Abstract The aim of this chapter is introduce adaptation to impacts of climate change as part of international climate governance in the Arctic. In the Arctic, there is a clash of two discourses – scientific discourse on concern for the impacts of climate change and neoliberal discourse of new opportunities for resource exploitation made possible by the climate change. The chapter studies the national communications of eight Arctic states to the secretariat of the UN Framework Convention on Climate Change since the early 1990s to analyze three related questions (1) how the concern for the climate change and its impacts are articulated as “governable problems” in the national communications, (2) how the regional concern for the Arctic is manifested nationally and (3) how the agency in developing preparedness, and responses to climate change impacts are constructed in these communications. The analysis of the concern for the climate change impacts in the Arctic countries show that the national concerns are constructed by using different discursive strategies. Most of the Arctic countries have found their “arcticness” after the publication of the ACIA report in 2004. The main reason for these national approaches to differ so much in their approach to the Arctic region is largely explained by the simple fact that these reports are written from the perspective of national economic interest. In this national economic interest arctic region offer natural resources and climate change in many cases promises to help the exploitation of these resources. Although, the issue of climate change has emerged on the Arctic political agenda, adaptation plans and measures have not been developed as an area for Arctic political cooperation.
11.1 Introduction The aim of this chapter is to introduce adaptation to impacts of climate change as part of international climate governance in the Arctic. In the Arctic, there is a
M. Tennberg (B) Arctic Centre, University of Lapland, 96101 Rovaniemi, Finland e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 11,
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clash of two discourses – scientific discourse on concern for the impacts of climate change and neoliberal discourse on new opportunities for resource exploitation made possible by climate change. The Arctic states balance these two discourses in their approaches to Arctic climate governmentality. The perspective of governmentality views adaptation to climate change as “a thing to be governed”, a potential space for purposeful governmental interventions in preparation for future changes. Knowledge about vulnerabilities, adaptive capacities and measures forms the basis for these interventions. The states have submitted four communications since the early 1990s to the secretariat of the UN Climate Change Convention which include assessment of vulnerabilities and plans for measures to adapt to climate change impacts as part of their commitment to international climate governance. The latest communications studied for this chapter were delivered in 2006. These national discourses provide, as John Dryzek (1997, pp. 74–75) points out, “a shared way of apprehending the world”. In Dryzek’s method of analytic discourse, ontological, hierarchical and agent-related assumptions are studied. My application of Dryzek’s method studies first the ontology of climate concern: how do states construct their concern for climate change impacts as a governable issue? Second, what is the place of the Arctic in this concern, especially how is concern for the Arctic peoples and nature constructed? Finally, how is the agency for adaptation developed through national communications? – who has the responsibility to take action, if any?
11.2 Adaptation as State Action International climate governance is based on the assumption that climate change and its impacts are governable (see Okereke & Bulkeley, 2007). Adaptation is seen as an area of governmental interventions in international climate governance. The idea of the UN Framework Convention on Climate Change (1992) is to make sure that the ecosystems may adapt to climate change and to its impacts. The convention defines adaptation as an issue of state action to foresee and prevent harmful impacts of climate change, therefore making it a space for governmental intervention. States committed themselves to take measures to ensure “adequate adaptation to climate change”. The Kyoto protocol to the framework convention (1997) requires all parties to take measures to facilitate “adequate adaptation to climate change”. The post-Kyoto, Bali Action Plan (2007) calls for “enhanced action on adaptation, including international cooperation to support urgent implementation of adaptation actions”. Especially, in the context of the Intergovernmental Panel of Climate Change (IPCC), adaptation is seen as an area of governmental intervention. According to the Intergovernmental Panel on Climate Change ([IPCC], 2007a, p. 720), adaptation to climate change includes adjustments in practices, processes, or structures to take account of changing environmental conditions. Adaptation as a planned process requires a policy consisting of vulnerability assessments and adaptation plans.
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In the Arctic, climate change and its impacts have already been observed and the region has been defined as vulnerable to the impacts of these changes (IPCC, 1997; IPCC, 2001; ACIA, 2004; IPCC, 2007b). However, within the widely spread neoliberal discourses, the region is constructed in terms of increased opportunities for exploitation of the regions’ resources due to climate change. The region around the North Pole is currently divided between Canada, USA, Russia, Norway and Denmark, but there are many unsettled issues and disagreements about borders and boundaries (see the map). “In the new race to the North Pole” Russia, Denmark and Canada have become active in taking action to make claims or strengthen existing claims on the area. In August 2007, A Russian mini-submarine dropped a Russian flag on the ocean floor at the North Pole as a symbolic claim of the polar region’s oil and minerals. On the other hand, Denmark is making a claim that the Lomonosov ridge is an extension of the Danish territory, not Russian. Lately, the Canadian government has released its plans to establish a new research station in its Arctic region thereby strengthening its territorial claim and sovereignty in the area. (Russia plants, 2007; Denmark maps, 2007; Arctic research station, 2008) (Fig. 11.1). The clash of these two discourses on Arctic climate change – scientific and neoliberal – can be studied through the concept of governmentality. For Foucault (1991, p. 97), government is not only a question of political affairs, it is a question of “how to govern oneself, how to be governed, how to govern others, by whom the people will accept being governed, how to become the best possible governor”. Governmentality takes the form of political rationalities and technologies, including more or less systemized modes of thoughts embodied in mentalities and practices by which political rationalities are translated into action. Governmentality treats politics and economics as closely connected, not separate fields. Economics, for Foucault, is based on the correct manner of managing individuals (Lemke, 2000; Merlingen, 2006; Jessop, 2007). The current mode of governmentality is neoliberalism which stands for a complex set of discourses and institutional practices that have spread worldwide. Neoliberalism as a mode of governing is based on “concern for the population and its optimization (in terms of wealth, health, happiness, prosperity, efficiency)” and the forms of knowledge and technical means appropriate to it (Dean, 1999, p. 20). In terms of states, their territories and populations and their security, Arctic countries are concerned about the impacts of climate change, but in very different ways. The greatest and broadest concern can be found in Canadian communications on the impacts of climate change. Canadian reports (Canada’s National, 1994, p. 53) define climate change and call its impacts on Canada “a cause for serious concern”. In the 2001 Canadian report this concern is further developed: climate change could have “serious repercussions on Canada’s natural resources, wildlife habitat, social and economic systems, and infrastructure, as well as on the health and general well-being of Canadians” (Canada’s Third National, 2001, p. 3). The 2006 Canadian report confirms its concern with recent examples of extreme weather events: “Canada’s vulnerability to climate variability and change have been clearly demonstrated by a number of extreme events in the past few years, including flooding and landslides triggered by extreme rainfall and snowmelt, storm surges,
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Fig. 11.1 Territorial disputes in the Arctic (Rekacewicz, 2007)
drought, heat waves and associated forest fires” (Canada’s Fourth National, 2007, p. 153). Canada is also the most prepared among the Arctic states to take action to adapt. Recognising the growing need for domestic action on adaptation, Canada has taken steps in the national climate change process to develop a policy framework for adaptation. The 2001 report notes that “Over the last few years, a consensus has been building in Canada that the climate is changing and that measures will need to be taken to adapt to these changes” (Canada’s Third National, 2001, p. 96).
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A rather broad concern for the impacts of climate change can be found in Russian communications based on economic considerations: the consequence of climate change could have “serious effect on climate-dependent branches of the economy, first of all, agriculture, forestry and water resources” (First National, 1995, p. 13). Also Russia seems to be prepared to make plans for climate change adaptation. In its first report, the country states that developing of adaptation measures connected with human settlements, correspondent infrastructure and economy in permafrost zones has a great practical importance in Russia. Recommendations for adaptation to climate changes are developed under the state’s scientific technological program “Global changes of environment and climate”. There is also a federal program “Prevention of dangerous climate changes and their negative consequences” in Russia (First National, 1995, p. 53). In comparison the U.S. (2002, p. 82) concern is restricted to nature only: “Natural ecosystems appear to be the most vulnerable to climate change because generally little can be done to help them adapt to the projected rate and amount of change.” However, also the U.S. national communication concludes that adapting to a changing climate is “inevitable.” The U.S. approach (U.S., 2006, p. 67) is not based on making plans and strategies for adaptation, but instead its report lists various “adaptation options” for different sectors in society, including forestry, water resources etc. It is difficult to assess on the basis of the report how many and to what extent these options have actually been put into practice. The U.S. focus seems to be on communication of scientific analyses to the decision-makers and to a public whose awareness of climate change they have developed. The Swedes have a societal basis for their concern, including impacts on infrastructure of the climate change in their region in the 2001 report: “Swedish nature and the various parts of Swedish society, including its infrastructure, are vulnerable under current variability in climatic conditions” (Sweden’s Third National, 2001, p. 20). In Sweden, a state inquiry committee was established in the summer of 2005 to identify how Swedish society can prepare for future climate change (Sweden’s Fourth National, 2005, p. 13). Among those prepared to adapt are Finland and Norway. In Finland, the need to draft a program for adaptation to climate change was also identified early. Work on the national strategy started in 2003. The objective of the Finnish adaptation strategy is “to reinforce and increase the capacity of society to adapt to climate change” (Finland’s Fourth National, 2006, p. 167). The fourth Norwegian report states that Norway is in the process of developing a national strategy for adaptation to climate change. The Ministry of the Environment has started a national follow-up program of the ACIA-report for the period 2005–2009 in order to improve knowledge about adaptation strategies for the most vulnerable sectors in society (Norway’s Fourth National, 2005, p. 73). Much less prepared seem to be Denmark and Iceland. The Danish approach (2005, p. 28) emphasises that the impacts will be modest and no special measures are needed. The general conclusion for Denmark has been that the direct impacts in moderate climate scenarios would be modest and could be countered by suitable ongoing adaptation. In Iceland, most adopted climate change measures aim at curbing emissions of greenhouse gases, and emphasis on adaptation measures has
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been minimal. The main reason for this is their high degree of uncertainty about the impacts of climate change (Iceland’s Fourth National, 2006, p. 25). From the point of view of governmentality, “Arctic climate change” is an issue of identifying objects (“peoples”, “the nature” or their relations, for example, in managing the climate “problem”) to be governed and arranging relations and responsibilities of action between various actors involved (see Darier, 1999). Governmentality focuses on how government agencies, with different producers of knowledge about environmental concerns, construct the problem to be governed, for example, “the climate change and its impacts.” The environmental problem is at the same time an object of knowledge, often contested by producers of knowledge and forms of knowledges. But it is also an object for governmental interventions in government’s efforts to manage the lives of its constituents. Knowledge about impacts, vulnerabilities, and adaptive capacities establish a space for governmental interventions. Analyses of the concern for climate change impacts in the Arctic countries show that the national concerns are articulated by using different discursive tactics and strategies as a governable problem. The countries also differ in their preparedness to make plans and strategies for adaptation: at least Canada, Finland, Sweden and Norway seem to be the most prepared by their basis of national communications. Clearly, Denmark and Iceland are less prepared.
11.3 The Arctic Concern Concern for the Arctic did not arise in many of the Arctic states’ reports before the Arctic Climate Impact Assessment (ACIA, 2004) was published. The report was prepared and published under the umbrella of the Arctic Council, a discussion forum for common concerns among Arctic states, indigenous peoples and other Arctic actors since 1996. Only Canada and Sweden had a clearly articulated Arctic or Subarctic concern expressed in their communications before publication of the ACIA report. Norway, USA and Finland seem to have found their “Arcticness” after publication of the ACIA report. For example, in the Norwegian case, concern over the Arctic emerges in the Fourth Report of 2005 (p. 62): “The Arctic is an area of particular concern, as climate changes are expected to be more pronounced and occur at a faster rate in this area than on lower latitudes”. Also the Arctic concern can be found in the latest Finnish National Communication of 2006 (p. 178): “Based on present knowledge, the nature of northern Finland and its inhabitants will be particularly sensitive to the effects of climate change”. Denmark, Iceland and Russia do not make any reference to the results of the ACIA report nor take them into consideration. Geography is used differently in articulating a concern for the impacts of climate change by the Arctic states. Iceland has expressed its concern over the impacts of climate change: “Of utmost concern to Iceland is the possible effect of climate change on the thermohaline circulation of the oceans and the Gulf stream, which is responsible for the climate in Iceland being considerably milder than can be expected
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considering its latitude” (Status Report, 1997, p. 29). Norwegian concern is also based on geographic location: “In addition to climate change caused by increases in mean temperature, Norway may, because of its geography and long coastline, be particularly vulnerable to changes in the frequency of weather patterns and extreme events such as storms, floods and spring tides” (Norway’s National, 1994, p. 10). The concern in spatial terms can be from “somewhere else”, outside the national territory, and outside the Arctic. The first Danish report considers that “the change of climate and the rise of sea level could lead to global economic and political instability” (Climate Protection, 1994, p. 11). The Danish general conclusion about its vulnerability is that “the direct impacts in moderate climate scenarios will be moderate for Denmark and can be countered by suitable, ongoing adaptation” (Denmark’s Fourth National, 2005, p. 28). The Finns have the same approach to climate change impacts as the Danish. Their concern is not based on the impacts of climate change in Finland but repercussions elsewhere. In general the Finnish 2006 assessment concludes: “Like in many other industrialized countries, vulnerability to the impacts of climate change is fairly low in Finland... Of all the consequences involved with climate change in Finland, those caused by detrimental changes elsewhere in the world may be the most serious ones. Soaring food prices, malnutrition and other health hazards could require immense international efforts with high costs to all wealthy economies” (Finland’s Fourth National, 2006, p. 30) The reason for the non-existence of an overall Arctic concern has been that the reports are made in the capitals of Arctic countries and from a national economic point of view. The national concern for the impacts of climate change is established from the point of view of national economic interest in most cases. For example, the Swedish view is that “If climate change were to lead in the long run to a change in the heat transported by the ocean currents, the consequences of a subsequent drastic warming or cooling could be disastrous for all climate-dependent ecosystems and economic sectors in Scandinavia” (Sweden’s National, 1994, p. 34). Particular areas of economic concern can be found in national communications. For the Finns, “the greatest risk is how the forests would adapt to the change, as the national economy is so dependent on the well-being of the forests” (Finland’s National, 1994, p. 100). Also in Canada, rising temperatures, reduced sea ice and permafrost changes could have “a major impact” on energy exploration, development and maintenance in northern Canada. In particular in the Arctic, the non-renewable energy industry is considered “vulnerable to changes in climate” (Canada’s National, 1994, pp. 57–58). In the Arctic, the promises of access to natural resources is a discourse typical to the current neoliberal mode of governmentality in which nature is owned, commodified and commercialised. Previously untapped areas, such as the Arctic, are being opened in the interests of national economies (see Lemke, 2000). Because of a neoliberal mode of governmentality, nature is no longer defined and treated as an external, exploitable domain. Through neoliberal processes of capitalisation, effected primarily by a shift in representation, previously “uncapitalised” aspects of nature and society become capitalised (McCarty & Prudham, 2004). From this point of view, for many countries climate change is a mixed bag of good and bad news. In
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the Danish report, for Greenland, the change in ice conditions could make communications easier. The period of open water would be longer, making it easier for boats to call at many towns and villages. There would be far less field ice, but on the other hand, a reduced possibility of using the ice to get from place to place. In terms of the economic interest: “Retraction of glaciers and the icecap, together with less ‘Arctic wilderness’ could adversely affect the tourist industry, but the improved communication – including a longer summer season – could have a beneficial effect” (Denmark’s Third National, 2003, p. 124). The Icelandic view is that “at present it appears most likely that there will be some, even fairly considerable, warming of the country in the next century, which is expected to have in most respects positive effects on the land itself, for agriculture, for instance, although the effects on the nation’s most important economic sector, i.e., fisheries, is shrouded in uncertainty” (Status Report, 1994, p. 62). Also in the case of Alaska, according to the U.S. report (U.S., 2002, p. 110), melting of sea ice and thawing of permafrost could further disrupt ecosystems, infrastructure and communication. However, a longer warm season could also increase opportunities for shipping commerce and tourism.
11.4 Agency-Related Commitments The neoliberal discourse of international climate governmentality produces a particular kind of discourse of environmental agency and responsibility. Neoliberalism is characterised by antagonism towards state interference and regulation. Governmentality shifts the responsibility for the environment onto the population and citizens are called on to take measures to protect the climate. The people are treated as a population that must be managed by using knowledge and by the interests of political economy (Rutherford, 2007). In terms of governmentality, the national approaches differ also in terms of interaction with stakeholders. The climate agency in these national communications is very state-centred and top-down based, the only exception in this respect being the Canadian approach. The Canadian approach is based on broad participation by various stakeholders: “Provincial, regional, and municipal governments as well as nongovernmental organizations (NGOs) are working with the Government of Canada to include climate change as part of their long-term planning processes”. The 2007 report (Canada’s Fourth, 2007, p. 98) emphasises the importance of national cooperation. Several provinces, territories and even municipalities have begun to develop their own action plans, which support action on adaptation. A more state-centred, top-down approach is used in the Nordic countries. The Norwegian process is lead by the Ministry of Environment but it involves almost all other ministries, but “the government recognizes that a number of organizations in both the public and the private sectors should take part in this process”. According to the Norwegian report, “The national strategy will see all the measures in relation to each other and point out sectors where more work has to be done” (Norway’s Fourth National, 2005, p. 62). In Finland, the preparation of Finnish adaptation strategy was
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coordinated by the Ministry of Agriculture and Forestry, with contributions from various ministries and expert organisations. Finnish stakeholders and citizens were able to contribute through the internet (Finland’s Fourth National, 2006, p. 167). The people are treated as a population that must be managed according to policies defined largely by the interests of political economy. It is important to note that certain people are called upon to fulfil the role of those who care about the environment and its protection, as it is remade into a new space of governmentality (Rutherford, 2007, p. 301). In this case, the Arctic populations, especially indigenous communities are identified as those bearing the impacts and the costs of adaptation to climate change impacts in the region. In the Arctic case, indigenous peoples are the object of governing. In the scientific discourse, the IPCC report stresses that “as with other vulnerable regions of the world, human adaptation is critical, particularly for those living in closest relationship with the local environment”. In terms of international climate governmentality, there has been a particular group who has become authorised to speak on behalf of the environment: the Arctic indigenous peoples. Arctic indigenous peoples’ subjectivity in environmentalism, and especially within the climate change discourse, is limited to indigenous peoples whose identity is linked to their understanding of nature (Rutherford, 2007, p. 301). The vulnerability of Arctic communities, and particularly indigenous peoples, to climate change “arises from their close relationship with the land, geographical location, reliance on the local environment for aspects of everyday life such as diet and economy and the current state of social, cultural, economic and political change taking place in these regions” (IPCC, 2007b, p. 661). In this the scientific and political discourses treat the local and indigenous peoples the same way. In the political discourses, the Finns and the Canadians separate the indigenous peoples as vulnerable to climate change impacts. As is stated by the Canadian Third National Communication (2001, p. 105) Canada’s indigenous communities are also vulnerable to climate change: “While adapting to environmental change is integral to the daily lives of northern peoples and a capacity to adapt is part of their livelihood systems, extreme events and unusual fluctuations in temperature can hinder their ability to maintain a subsistence lifestyle and can also create safety hazards”. The Finnish report also identifies the Finnish Sami working with reindeer as vulnerable to impacts of climate change based on the information provided by the ACIA report on the impacts of climate change on the reindeer. However, in the end the Finnish conclusion is that “based on present knowledge, the nature of northern Finland and its inhabitants will be particularly sensitive to the effects of climate change.” The concern for the rather small group of Finnish Sami reindeer herders is generalised to a threat to the whole population of Northern Finland (Finland’s Fourth National, 2006, p. 178). In the Arctic case, the neoliberal mode of governmentality in the Arctic has also manifested itself in establishment of the Arctic council which is a forum for states, indigenous peoples and other Arctic actors to discuss common concerns. The Arctic council is a particular practice of international cooperation, mainly it provides a forum for discussion and collection of information around the region. From the point of view of governmentality, establishment of the Arctic council made the region
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an area of cooperation for environmental protection and sustainable development (Tennberg, 2000). Climate change and its impacts have been discussed in the Arctic council. The role of the Arctic council in terms of climate change has been to collect data on climate change in the Arctic as in regard to many other environmental problems in the region. The issue of adaptation has entered the political agenda of the Arctic council. In a joint statement by the Arctic states to the UN Climate Convention conference of parties in Montreal 2005, the states acknowledge that “adaptation to climate change and its impacts in the Artic must take into account the especially sensitive and vulnerable natural and human systems of the region. Special attention needs to be paid to strengthening the adaptive capacities of Arctic residents” (Statement on Climate, 2005). Because of the variety of national approaches to adaptation in the Arctic, it is unlikely that a common regional concern or policy for Arctic adaptation will be developed soon. In the light of these national differences it is hard to imagine a pan-Arctic policy of adaptation being developed for the Arctic region jointly for example, by the Arctic council.
11.5 The National Approaches to Arctic Climate Governmentality This chapter has studies national communications of eight Arctic states to the secretariat of the UN Framework Convention on Climate Change since early 1990s to analyse three related questions (1) how the concern for the climate change and its impacts are articulated as “governable problems” in the national communications, (2) how the regional concern for the Arctic is manifested nationally and (3) how the agency in developing preparedness, and responses to climate change impacts are constructed in these communications. It has been an exercise in using the concept of governmentality to analyse the states approaches to adaptation to impacts of climate change in the Arctic. From the point of view of governmentality, the construction of climate change as a governable problem defines the actors and their responsibilities as well as produces understanding of the problem to be governed itself. The analysis of concern about climate change impacts in the Arctic countries show that the national concerns are constructed by using different discursive strategies: most concern about the impacts of climate change can be found in the Canadian national communications. For different reasons, Sweden, Iceland, Norway and USA are also concerned about impacts of climate change. Finally, the least direct concern for the impacts of climate change can be found in the Danish and Finnish national communications in which their concern is based on the cumulative impacts of changes taking place somewhere else, outside their national area. In terms of adaptation as action, Finland and Canada are most progressive in the sense of making plans for adaptation and taking a role in developing an active policy of adaptation. Norway and Sweden
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follow these two countries but seem not to be as advanced, at least in the light of these national communications. Iceland and Denmark have no plans for adaptation. Most of the Arctic countries have found their “Arcticness” after publication of the ACIA report in 2004. Only Canada and Sweden had a clear Arctic or Subarctic concern in their national communications before 2004. The main reason that these national approaches differ so much in their approach to the Arctic region is largely explained by the simple fact that these reports are written from the perspective of national economic interest. In this national economic interest, the Artic region offers natural resources, and climate change in many cases promises to help the exploitation of these resources. Climate change in the Arctic from the perspective of neoliberal governmentality offers new opportunities for communication and transportation making the Arctic region easier to access and resources of the region more attractive to be exploited. In the end, the responsibility of adaptation is left to the indigenous and local populations in the region. This is typical of a neoliberal mode of governmentality making the population an object of governmental intervention. Although, the issue of climate change has emerged on the Arctic political agenda, adaptation plans and measures have not been developed as an area for Arctic cooperation. The analysis shows that first of all, there is no common regional concern emerging for adapting to impacts of climate change in the Arctic. Second, Arctic countries vary greatly in their approaches to planning and implementation of adaptation strategies. Therefore, even though climate change as a topic has emerged on the political agenda of the Arctic council, the development of any common regional approach to support adaptation to climate change impacts in the region is not likely in the near future. In the current neoliberal mode of governmentality of Arctic states, climate change is understood mainly as providing new opportunities for exploitation of the resources in the region and the role of the states is to encourage this development to advance national economic interests.
References ACIA (Arctic Climate Impact Assessment). (2004). Impacts of a warming Arctic. New York: Cambridge University Press. Retrieved June 19, 2008, from http://amap.no/acia Arctic research station belongs in Northwest Passage: Polar Commission (2008, June 26). CBC News. Retrieved August 18, 2008, from http://www.cbc.ca/Canada/north/story/2008//06/26/ polar-research.html Bali Action Plan. (2007).Conference of the Parties to the United Nations Framework Convention on Climate Change. Retrieved June 19, 2008, from http://unfccc.int/files/ meetings/cop 13/application/pdf/cp bali action.pdf Canada’s National Report on Climate Change. (1994). Nations Framework Convention on Climate Change. Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/cannce1.pdf Canada’s Third National Report on Climate Change. (2001). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/cannce3.pdf Canada’s Fourth National Report on Climate Change. (2007). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/cannc4.pdf
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McCarty, J., & Prudham, S. (2004). Neoliberal nature and the nature of neoliberalism. Geoforum, 35(3), 275–283. Merlingen, M. (2006). Foucault and world politics: Promises and challenges of extending governmentality theory to the European and beyond. Millennium, 35, 181–196. Norway’s National Communication under the Framework Convention on Climate Change. (1994). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/nornc1.pdf 19.5.2003 Norway’s Fourth National Communication under the Framework Convention on Climate Change. (2005). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/nornc4.pdf Okereke, C., & Bulkeley, H. (2007). Conceptualizing climate change governance beyond the international regime. Tyndall centre working paper. Retrieved June 18, 2008, from http://www.2007amsterdamconference.org/Downloads/AC2007 OkerekeBulkeley.pdf Rekacewicz, P., & Le Monde Diplomatique. (2007). http://blog.mondediplo.net/-visionscarto-graphiques-(http://www.monde-diplomatique.fr) Russia Plants Flag Staking Claim to Arctic Region. (2007, August 2). CBC News. Retrieved June 16, 2008, from http://www.cbc.ca/world/story/2007/08/02/russia-arctic.html Rutherford, S. (2007). Green governmentality: Insights and opportunities in the study of nature’s rule. Progress in Human Geography, 31(3), 291–307. Statement on Climate Change in the Arctic Region. (2005). UN Climate change conference COP 11 and COP/MOP1 Montreal, 9.12.2005. Status Report for Iceland Pursuant to the United Nations Framework Convention on Climate Change. (1994). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/icenc1.pdf Status Report for Iceland Pursuant to the United Nations Framework Convention on Climate Change. (1997). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/icenc2.pdf Sweden’s National Report under the United Nations Framework Convention on Climate Change. (1994). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/swenc1.pdf Sweden’s Third National Report under the United Nations Framework Convention on Climate Change. (2001). Retrieved from http://unfccc.int/resource/docs/natc/swenc3.pdf, June 19, 2008. Sweden’s Fourth National Communication on Climate Change. (2005). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/swenc4.pdf Tennberg, M. (2000). Arctic environmental cooperation. A study in governmentality. Ashgate: Aldershot. UN Framework Convention on Climate Change. (1992). Retrieved June 19, 2008, from http://unfccc.int/resource/docs/convkp/conveng.pdf U.S. Climate Action Report. (2002). United Nation’s Framework Convention on Climate Change. Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/usnc3.pdf U.S. Climate Action Report. (2006). United Nation’s Framework Convention on Climate Change. Retrieved June 19, 2008, from http://unfccc.int/resource/docs/natc/usnc4.pdf
Chapter 12
Mitigation Possibilities in the Energy Sector – An Arctic Perspective Maria Pettersson
Abstract Not all regions in a weak position vis-`a-vis climate change are recognised by the international Climate Regime. The Arctic region is a case in point. Although generally considered to be particularly vulnerable to climate change neither the text of the UNFCCC, nor the Kyoto Protocol makes any special mention of the Arctic. Still, the assessment reports of the IPCC as well as the ACIA-report predicts major ecological, sociological and economic impacts of climate change in the Arctic; the sea-ice is melting; the permafrost is thawing and thereby exposing the already susceptible ecosystems to an even greater risk of e.g., species extinction, and endangering the livelihood of, primarily the indigenous, peoples in the Arctic. At the same time, the Arctic is rich in natural resources, particularly energy resources; immense reserves of oil, coal and gas, as well as renewable energy resources, such as wind and water, are located within the Arctic areas. This chapter deals with climate change mitigation possibilities in the energy sector in the Arctic region. What implications follow, for instance from, on the one hand, the Arctic’s special vulnerability in relation to climate change, and, the other hand, the prosperous occurrence of energy resources in the Arctic region? The aim of the chapter is thus to analyse the interrelation between climate change, energy and the Arctic and, subsequently, to consider better ways to counter the posed challenges.
12.1 Introduction Climate change is the most recognised environmental issue of the day. The vast majority of the scientific community now agrees that various anthropogenic activities, strongly related to industrial society and energy production, have increased the concentrations of greenhouse gases in the atmosphere and thereby initiated a warming of the global climate that exceeds its natural variability. The very nature of
M. Pettersson (B) Lule˚a University of Technology, SE-971 87 Lule˚a, Sweden e-mail:
[email protected] T. Koivurova et al. (eds.), Climate Governance in the Arctic, Environment & Policy 50, C Springer Science+Business Media B.V. 2009 DOI 10.1007/978-1-4020-9542-9 12,
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the climate issue as so defined calls for one main response: reduced anthropogenic emissions of greenhouse gases. Accordingly, the ultimate objective of the United Nations Framework Convention on Climate Change is “to achieve (. . .) stabilization of greenhouse gas concentrations at levels that would prevent dangerous anthropogenic interference with the climate system” (UNFCCC, Art. 2) in consideration of the principles of equity and common but differentiated responsibility (UNFCCC, Art. 3.1) as well as the precautionary principle (UNFCCC, Art. 3.3). The commitments under the Convention are based on the level of economic development and industrialisation in the countries that are parties to the Convention and thus vary. Annex I consists of OECD-members and the so-called Economies in Transition (EITs) (i.e., former members of the Soviet Union); Annex II includes OECD-members only and Non-Annex I countries are all other parties to the Convention, including the Least Developed Countries (LDCs). The convention’s first protocol, the Kyoto Protocol, shares the objectives, principles and institutions of the Convention, but reinforces the obligations for developed country parties by establishing emission reduction targets for those developed countries. Besides requiring developed country parties to the Convention to carry a heavier burden in terms of emission reductions, the climate regime also acknowledges that different countries – or rather different regions (since country borders do not define such matters as ecosystems, climatological preconditions or the like) – have different capabilities and preconditions to mitigate and adapt to a changing climate. Small island countries and countries with low-lying coastal areas for instance are considered to be particularly vulnerable to rising sea-levels as a result of thermal expansion and glacial melting, and are therefore entitled to special treatment under the Convention and the climate regime (UNFCCC, Art. 4.8(a)(b)). The climate regime however does not recognise all regions that are vulnerable. The Arctic region – although it is generally considered to be particularly vulnerable to climate change – receives no explicit attention in the convention or protocol text. Still, the IPCC’s fourth assessment report (2007) as well that of ACIA (2005) – predicts major ecological, sociological and economic impacts of climate change in the Arctic; the sea-ice is melting; the permafrost is thawing and exposing already vulnerable ecosystems to even greater risks e.g., species extinction, and threats to the livelihood of Arctic peoples, primarily indigenous peoples. At the same time, the Arctic is rich in natural resources, particularly energy resources. There are immense reserves of oil, coal and gas, as well as renewable energy resources, such as wind and water. This chapter deals with climate change mitigation possibilities in the energy sector in the Arctic region. What are the implications of the Arctic’s special vulnerability in relation to climate change given the abundance of energy resources in the Arctic region? This chapter aims to analyse the interrelation between climate change, energy and the Arctic and to consider ways to better counter the posed challenges. The chapter proceeds as follows. The first part outlines the main features of the climate regime and its implications for the energy sector. The second part discusses various mitigation possibilities for the Arctic region in connection with energy
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supply. The last part deals with the potential for joint action by the Arctic states to address the issues in the energy sector.
12.2 The Climate Regime 12.2.1 The United Nations Framework Convention on Climate Change The objective of the climate convention is, to achieve a safe (not dangerous) level of greenhouse gas concentrations in the atmosphere, for the climate system, the overall food production and for sustainable economic development. Thus, greenhouse gas emissions originating from anthropogenic activities have to be reduced. There is no clear-cut answer as to the question of whether the UNFCCC actually steers us towards an increased use of – and substitution for – renewable energy as a means to achieve this ultimate objective. On the one hand, both the objective and several other articles of the convention more or less encompass renewable energy technology diffusion. For instance, all parties to the convention are required to: “promote and cooperate in the development, application and diffusion, including transfer, of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases – in all relevant sectors, including the energy [sector] ” (emphasis added) (UNFCCC, Art. 4.1(c)). In view of the potential for emission reductions provided by an increased proportion of renewable energy in the energy mix, the commitment is an important one. The developed country parties shall furthermore “take all practicable steps to promote, facilitate and finance the transfer of environmentally sound technologies” to other parties to the Convention (UNFCCC, Art. 4.5). Accordingly, the Convention defines a mechanism for the provision of financial resources on a grant or concessional basis (UNFCCC, Art. 11.1). On the other hand, it may well be argued that the major role played by (parts of) the energy sector in causing emissions, together with the fact that conversion to renewables hence is a particularly suitable way, not only to reduce GHG emissions, but also to maintain a sufficient food production and enable economic development (all in accordance with the ultimate objective),1 implies that renewable energy diffusion should have been accorded a more prominent position in the Convention. In sum, while the Convention does not contain any explicit reference to renewable energy or the promotion thereof, renewable energy technologies are presumably embraced by the concept of “environmentally sound technology”.2
1 In addition, conversion to renewable energy sources has in several countries been considered a necessary strategy to wind down, or at least not further develop, nuclear power. 2 One other article of the Convention refers to the promotion of (e.g., environmentally sound) technology: Article 9.2(c) on the subject of the SBSTA states that the body shall: “Identify innovative,
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12.2.2 The Kyoto Protocol The independent function of the Kyoto Protocol is to add force to the objective of the Convention by establishing legally binding quantified emission reduction targets. The parties are, in principle, free to decide how to reach their individual emission reduction targets and thus the protocol does not force the parties to take any specific measures in, for instance, the energy sector. However, the Protocol does require that the parties put in place domestic policies and measures and hence provides an indicative “list” of possible mitigation policies and measures, for example improved energy efficiency and an increased use of renewable energy. Article 2.1(a)(iv) states that the parties shall: e.g., “research on, and promote, development and increased use of, new and renewable forms of energy. . .” in order to achieve its quantified emission reduction target and to promote a sustainable development (all in accordance with its national circumstances). Furthermore, all parties shall develop and put into practice programmes that contain measures to mitigate climate change in different areas, including the energy sector, as well
