The Arctic is in the midst of a fundamental geophysical transformation. This transformation has prompted visions of the region as one of opportunity, with unprecedented rates of sea ice retreat removing the natural barrier which previously stymied international interest Consequently, there has been an escalation in Arctic strategies being released over the past decade – most recently a comprehensive policy announced by Russia – as both Arctic and non-Arctic states look to garner some level of influence in the region. With the Arctic region potentially emerging as a geopolitical hotspot – a fulcrum for international relations – the saliency of governance increases.
Whilst the region is administered by international customary maritime law under the United Nations Convention on the Law of the Sea (UNCLOS) and cooperation is fostered through the Arctic Council, both are imperfect, partial and are unlikely to provide adequate protection or the high political stability necessary in the twenty-first century.
The Arctic Council has been the principal governing structure in the Arctic region since it was formally established in 1996 at the Ottawa Convention as a forum for promoting cooperation, coordination and interaction in the Arctic. However, whilst it has maintained a degree of stability and shown progressive characteristics in eschewing a traditional state-centred approach to governance, in favour of incorporating non-state actors including indigenous groups, it lacks a firm legal charter or any mandate to adjudicate on matters of peace and security. As such, it has increasingly been critiqued as a decision-shaping rather than decision-making body – lacking regulatory power and relying on state funding with no formal programming budget. Crucially, it doesn’t address military security or territorial resource disputes – two factors which could serve as points of geopolitical tension in the coming decades.
While the governance structure has limitations, the legal regime has proven to be equally problematic. Under UNCLOS there are articles that cover all aspects of maritime space – including territorial regulations for coastal nations who, according to the convention, can have sovereign rights to resources within a 200 nautical mile zone from their coast. However, Article 76, which discusses the continental shelf, introduces a degree of ambiguity in allowing states to extend their sovereignty rights in specific circumstances. In official terms, this can be up to 350 nautical miles for ‘submarine ridges’ or 100 nautical miles for ‘submarine elevations that are natural components of the continental margin’. The ambiguity around what is classed as a ‘ridge’ or an ‘elevation’ leaves space for contested territorial claims which create further threats to the political stability of the region.
If the Arctic Council lacks the authority that will be required in the 21st century and UNCLOS contains ambiguities that have already triggered disputes, then what are the alternatives?
One solution is to adopt a legally binding treaty akin to that adopted in Antarctica which has maintained order and stability since it was signed in 1959. As the British Antarctic Survey suggests, in reference to the Antarctic continent: ‘There are few places in the world where there has never been war, where the environment is fully protected, and where scientific research has priority.’ Given that the treaty has been recognised as one of the most successful international agreements in ensuring peace and environmental protection, as well as successfully navigating territorial disputes and prioritising scientific research, it would seem that such an approach would be ideal for the northern polar region.
However, the idea that the Arctic could become ‘… a natural reserve, devoted to peace and science’ disregards the context as well as the physical environment of the Arctic, which are decidedly different from that in Antarctica. The virtues of providing a hard, legal regime must be set against the advantages of maintaining a softer approach. With the region undergoing rapid biophysical changes, the maintenance of soft law would enable a degree of flexibility and adaptation as conditions adjust, whereas the instigation of a legal charter could quickly become obsolete and require continual redrafting.
Furthermore, the variety and complexity of issues around shipping, fishing and resources, which are more acute in the context of melting sea ice in the Arctic could be more effectively managed, as they currently are, through specific treaties or bodies such as the International Maritime Organisation (IMO). The IMO, for instance, has already played an active role in developing the guidelines for ships operating in Arctic ice-covered waters which became a legally binding Polar Code in January 2019.
Finally, legally binding agreements are usually interstate treaties. Despite its weaknesses, one of the most progressive and enduring assets of the Arctic Council has been the presence of non-state actors – both indigenous and sector specific. A legally binding treaty could undermine this feat as well as marginalise these groups whose voice and expertise will be critical for the future sustainability of the Arctic.
While there is an argument to take parts of the Antarctic treaty – for instance in relation to Article 4 which freezes jurisdictional claims in international waters, it is not as simple as simply transposing the Antarctic treaty to the Arctic. The management of a transient and dynamic environment will always be inherently complex.
Governance therefore remains a complex and vexed question but one which will only intensify in significance as more stakeholders clamour for influence in the Arctic region. An appropriate resolution is unlikely to come in the form of a single, straightforward treaty but will potentially require an amalgamation of factors which sees aspects of the current system and further innovations coalescing into a uniquely Arctic governance regime.