The Arctic Series, Part I: The Arctic Rules

Emily Tsui, 3L, Volume 78 Senior Editor

On 10 September 2019, the federal government launched Canada’s Arctic and Northern Policy Framework (Framework). Among the many policy priorities, the first goal stated in the international section is to further Canada’s commitment to the “rules-based international order in the Arctic.” But what are these rules and Canada’s legal obligations under them? This post briefly explores these questions considering recent international developments to this rules-based order. 

Rules in the Arctic Region

Unlike Antarctica, there is no single treaty that states can exclusively look to for governance of the Arctic region. Instead, there is a patchwork of legally and non-legally binding rules that govern Arctic states, the people that live in it, and the territory in the region. Examining any issue that relates to the Arctic implicates multiple rules. For example, Arctic shipping touches on the Convention of the Law of the Sea (UNCLOS) as it relates to the maritime zones of jurisdiction, the Polar Code as it relates to the structural and environmental integrity of ships, the Search and Rescue Agreement as it relates to emergency preparedness, the International Covenant on Civil and Political Rights as it relates to the treatment of crew members and passengers, and many others.

Legal scholar Edward Canuel identifies the four main pillars of Arctic law. [1] First, there are obligations that states are legally obliged to follow. This includes hard law, such as UNCLOS and customary international law, like the obligation to refrain from the use of force. Second, there are institutionalized international norms in the form of soft law that do not give rise to legal obligations. This includes the 1996 Ottawa Declaration that created the Arctic Council. Third, there is domestic legislation promulgated by the governments of the eight Arctic countries (Canada, United States, Russia, Finland, Sweden, Norway, Denmark, and Iceland) that affects the Arctic geographically or Arctic residents. Such legislation includes Canada’s Arctic Waters Pollution Prevention Act, which aims to prevent pollution in Canada’s Arctic waters. Fourth, there is transboundary private law that could apply in agreements and disputes between private companies operating in the Arctic.

Accordingly, there is no shortage of rules that Canada must follow in the Arctic, and Canada has obligations to a range of actors depending on the applicable rule. Canada has legal obligations to other states under hard law arrangements, but also political and moral obligations in soft law. Further, various levels of Canadian government have obligations and duties under domestic law. Canadian corporations and citizens also may have duties under transboundary private law. However, this post focuses only on the first two categories, hard law and soft law, as these are most relevant to the federal government’s commitment to the “rules-based international order in the Arctic” referred to in the Framework.

Recent Developments

Legal developments took a turn in the Arctic in 2011. Prior to this, rules that pertained exclusively to the Arctic region were almost entirely soft law. Additionally, any relevant hard law had broader application beyond the Arctic region. For example, UNCLOS governs maritime jurisdiction in the Arctic Ocean, but it also governs maritime jurisdiction globally. Today, there is growing evidence that legally binding agreements exclusive to the Arctic are becoming important to states. Still, understanding the content of these agreements requires consistently looking at soft law developments. 

In the last nine years, the Arctic Council, the pre-eminent intergovernmental forum for co-operation in the Arctic region, has begun to facilitate the negotiation of legally binding agreements among the eight Arctic states. In 2011, the states signed the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement). In 2013, the states signed the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (MOSPA Agreement), and in 2017, the states signed the Agreement on Enhancing International Arctic Scientific Cooperation (Science Agreement). There are currently talks to have another legally binding agreement pertaining to maritime radiological/nuclear cooperation. All of these agreements exclusively pertain to and account entirely for the geographic space of the Arctic region.

The agreements negotiated under the auspices of the Arctic Council add a layer of complexity to determining the obligations that states have in the Arctic. While states agree that the agreements are legally binding, the exact content of their obligations can be a little ambiguous and varies significantly from agreement to agreement. States have decided that a specialized group in the Arctic Council, the Emergency Prevention, Preparedness, and Response Working Group (EPPR), will oversee the implementation of the SAR and MOSPA Agreements. Through the EPPR, states and experts have been able to tackle common challenges related to their implementation, such as clarifying legal liability issues [2] in the case of the MOSPA Agreement. The EPPR’s work allows Canada’s obligations under soft law to become more defined over time. To fully understand Canada’s obligations under the SAR and MOSPA Agreement in the Arctic, it is therefore necessary to stay up to date with the many current developments at the EPPR.

In contrast, states have not granted a specialized body the competence to oversee implementation of the Science Agreement. [3] While states are legally obliged to “facilitate access” for potential researchers to Arctic regions, an observer would be hard pressed to identify whether a state is adhering to these obligations. [4] As of the time of this post, implementation of the Science Agreement is done largely in a decentralized manner, with national agencies working with other departments in a state to individually determine their own priorities. [5] Co-ordination builds on the extensive scientific co-operation that occurred prior to the agreement’s implementation, and state representatives meet on an ad hoc basis to present their efforts. As such, Canada’s obligations under the Science Agreement are continually undergoing refinement.

The recent Arctic agreements are blurring the lines between hard and soft law rules in the Arctic. As such, defining precisely what Canada’s obligations under hard law may become increasingly difficult. Soft law rules help to flesh out the content of those obligations, but such an approach does not help to establish a uniform source for Arctic law. Currently, any observer who wishes to discern the content of Canada’s obligations needs to reference a wide range of legal sources to do so.

Conclusion

Given the rapidly changing state of the Arctic, legally binding rules that leave significant room for interpretation by states can be an asset. The recent Arctic agreements accord with the way in which Arctic diplomacy has been conducted in the last two decades, since they give states the flexibility to interpret their own obligations in the region. The Arctic has seen remarkably little open conflict, and states have viewed the region as an opportunity to co-operate on various issues. This is reflected in the choice of dispute resolution (negotiation) that states have provided for in the three Arctic agreements negotiated since 2011. Unlike other agreements, such as UNCLOS, which give states the option to pursue adversarial forms of dispute resolution, restricting dispute resolution to negotiation within the Arctic relies on states to be flexible and take initiative, as states will be responsible for progressively developing the content of the rules over time. Accordingly, Canada’s obligations within the Arctic’s rules-based international order are consistently evolving and will require continual monitoring by the Arctic Council.

Notes

[1] Edward Canuel, “The Four Arctic Law Pillars: A Legal Framework,” (2015) 46 Geo J Int L 737-738.

[2] Arctic Council Secretariat, “AMAROK Mini Update,” March 2019 at 9.

[3] Emily Tsui, “A Commentary on the Agreement on Enhancing International Arctic Scientific Co-operation: Legal and practical consequences,” (2019) Arctic Yearbook 336.

[4] Agreement on Enhancing International Arctic Scientific Cooperation, 11 May 2017, (entered into force 23 May 2018), arts. 1, 4-7.

[5] Emily Tsui, “A Commentary on the Agreement on Enhancing International Arctic Scientific Co-operation: Legal and practical consequences,” (2019) Arctic Yearbook 338.