-by Anne Bouyssou
Contrary to the Antarctic, which is a continent surrounded by an ocean, the Arctic is an ocean surrounded by continents. It is enclosed by ten marginal seas. Considering the Arctic, land areas are generally included to an extent which is often not clearly determined. Annika E. Nilsson (2011) stressed the multiplicity of definitions referring to the Arctic.
Timo Koivurova (2009) recognized the absence of consensus about the definition of the southernmost boundary of the Arctic, but pointed out that “in Arctic-wide cooperation, the Arctic Circle (…) has been used as a criterion for membership, with only those States that possess areas of territorial sovereignty above the Arctic Circle being invited to participate in the cooperation”.
Intergovernmental cooperation among Arctic States relies on soft law and does not have any enforcement mechanisms (Koivurova, 2009). Conversely, the Antarctic regime relies on the 1959 Antarctic Treaty signed in Washington and, as far as environment protection is concerned, on the 1991 Protocol signed in Madrid. When comparing the two, Davor Vidas (2000) noted that “while the Antarctic Treaty System is a true form of international administration, the Arctic Council is still largely confined to international consultation (…) the Arctic still lacks any counterpart to the Antarctic Treaty System, governing the whole spectrum of human activities in the Antarctic with an increasing reliance on hard law (…) even the Arctic Council has been established, not by an international treaty, but by a declaration”.
This assertion is confirmed by the principle enshrined in the Arctic States’ first formal common decision : “the implementation of the Strategy will be carried out through national legislation and in accordance with international law, including customary international law as reflected in the 1982 United Nations Convention on the Law of the Sea” (Arctic Council, 1991).
Four out of five coastal States are parties to the United Nations Convention on the Law of the Sea (UNCLOS). The Convention addresses the protection of the marine environment in ice-covered areas (article 234). Coastal States are given the right to adopt and enforce specific regulations within the limits of their exclusive economic zone (EEZ). However, global warming challenges the application of this provision since its two requirements, severe climatic conditions and the presence of ice for most of the year, will no longer be met (Mare, 2009).
The Arctic marine environment is not as well protected as the Antarctic, despite of its vulnerability. The Arctic Council (2009), Norway (IMO, 2010a) and NGOs (IMO, 2010b), have stressed the lack of mandatory environmental standards to protect the Arctic marine environment. Whereas almost 20 % of the Arctic land has protected area status, little of the Arctic marine environment has been designated as marine protected area (Koivurova, 2009).
In the legal study commissioned by the World Wide Fund for Nature, Timo Koivurova and Erik J. Molenaar (2009) concluded that a new multilateral agreement was necessary to protect the Arctic marine environment.
The European Parliament (EP) has also underlined the need to open international negotiations in order to adopt an international treaty for the protection of the Arctic environment (EP, 2008).
There are some geopolitical disputes and competition among Arctic States. Two of the contentious issues are maritime claims regarding the extension of sovereign rights over the continental shelf beyond 200 nautical miles, and the conditions of navigation in territorial waters (Dodds, 2010).
Almost four million people live in the Arctic ; global warming and the extension of human activities alter Arctic native peoples’ traditional lifestyle, based on values such as the transmission of inherited practices, sharing and close relationship to nature (Aslaksen, Dallmann, Holen, Høydahl, Kruse, Poppel, Stapleton & Turi, 2009 ; IMO, 2011). The extracting industry development has several negative impacts on Arctic communities’ land (Aslaksen et al., 2009). However, these productive activities also create economic opportunities for Arctic inhabitants (Glomsrød, Mäenpää, Lindholt, McDonald & Goldsmith, 2009 ; Lindholt & Glomsrød, 2009 ; Mäenpää, 2009).
Both developed and developing countries are longing for Arctic natural resources, mainly oil, gas and minerals. On the other hand, Arctic States are determined to develop economic activities in their northern regions. The reduction of ice coverage and the thaw of permafrost create better material conditions to exploit natural resources.
Arctic living marine resources provide indigenous peoples with subsistence but also have a global economic significance (Murray, Anderson, Cherkashov, Cuyler, Forbes, Gascard, Haas, Schlosser, Shaver, Shimada, Tjernström, Walsh, Wandell & Zhao, 2010). For instance, 70 % of the world’s total white fish supply comes from Arctic waters (Burnett, Dronova, Esmark, Nelson, Rønning & Spiridonov, 2008). Because of global warming, some fish species migrate northwards in order to find the cold waters they need to feed and reproduce. Such northward ecosystem migration has been observed in the Bering Sea and in the Northeast Atlantic (Murray et al., 2010). This phenomenon brings new species in the Arctic and some major marine fisheries, such as those for herring and cod, will become more productive (Murray et al., 2010 ; Arctic Council, 2004). Therefore, commercial fishing also moves northwardly. Besides IUU fishing (Burnett et al., 2008), it will reinforce overfishing in marginal seas.
The enlargement of natural resources exploration and exploitation will bring a greater need for maritime transport in the Arctic, thereby increasing maritime safety and environmental risks.
The Arctic has a strategic median location between the Eurasian and American continents. From the shipping company’s viewpoint, Arctic waterways reduce distances between Asian, European and North-American markets. Reduced sea-ice cover, both in extent and in thickness, will lengthen the navigation window and widen the range of ships able to transit Arctic waters (Arctic Council, 2004). Transit routes will be accessible for ships via the Northwest Passage, along the coasts of Canada and the United States, via the Northeast Passage, along the coasts of Russia, and in a farther future across the North Pole itself (Future Central Arctic Shipping route). In the latter case, navigation would take place beyond coastal State jurisdiction (Brigham, Santos-Pedro, McDonald, Juurmaa & Gudmundsdottir, 2006 ; Arctic Council, 2009). The shipping industry is eager to take advantage of these new opportunities (Murphy & Eason, 2011 ; Parker, 2011). A particular source of concern for the Arctic environment is the development of cruise shipping (United Nations Environment Programme, 2007 ; Hall, James & Wilson, 2010).
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