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Arctic Legal Regime for Environmental Protection

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IUCN Environmental Law Programme Arctic Legal Regime for Environmental Protection Linda Nowlan IUCN Environmental Policy and Law Paper No. 44 Arctic Legal Regime for Environmental Protection Partners
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IUCN Environmental Law Programme Arctic Legal Regime for Environmental Protection Linda Nowlan IUCN Environmental Policy and Law Paper No. 44 Arctic Legal Regime for Environmental Protection Partners International Council of Environmental Law (ICEL) Towards Sustainable Development The International Council of Environmental Law (ICEL) was formed in 1969 in New Delhi as a public interest organisation with the aims of encouraging advice and assistance through its network, and of fostering the exchange and dissemination of information on environmental law and policy and among its elected members. As a non-governmental organisation in consultative status with the United Nations Economic and Social Council, ICEL has permanent representatives at the UN offices in New York, Geneva and Vienna. ICEL is a member of IUCN - The World Conservation Union and supports the IUCN Environmental Law Programme. West Coast Environmental Law Research Foundation West Coast Environmental Law strives to empower citizens to participate in forming policy for, and making decisions about, protecting our environment. From the local to international level, its work supports the right of the public to have a voice in how we share our earth. Since 1974, it has been providing free legal advice, advocacy, research and law reform services. And through the Environmental Dispute Resolution Fund, West Coast Environmental Law has given away over $2,000,000 to hundreds of citizens groups across BC to help them solve environmental problems in their own communities. Arctic Legal Regime for Environmental Protection Linda Nowlan West Coast Environmental Law IUCN Environmental Policy and Law Paper No. 44 IUCN - The World Conservation Union 2001 The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN or International Council of Environmental Law (ICEL) concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers and boundaries. The views expressed in this publication do not necessarily reflect those of IUCN or ICEL. Published by: IUCN, Gland, Switzerland and Cambridge, UK in collaboration with IUCN Environmental Law Centre, Bonn, Germany, International Council of Environmental Law (ICEL), Bonn, Germany. ICEL Copyright: 2001 International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non-commercial purposes is authorised without prior permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Linda Nowlan (2001). Arctic Legal Regime for Environmental Protection. IUCN, Gland, Switzerland and Cambridge, UK and ICEL, Bonn, Germany. xii + 70 pp. ISBN: Cover design by: IUCN Environmental Law Centre Cover photo: Layout by: Produced by: Printed by: Available from: Barbara Weiner, Desktop Publications Co-ordinator IUCN Environmental Law Centre and International Council of Environmental Law (ICEL) Daemisch Mohr, Siegburg, Germany IUCN Publications Services Unit 219c Huntingdon Road, Cambridge CB3 0DL, UK or IUCN Environmental Law Centre Godesberger Allee , D Bonn, Germany A catalogue of IUCN publications is also available The text of this book is printed on paper made from low chlorine pulp. Table of Contents Preface Acknowledgments Executive Summary vii viii ix I. THE ARCTIC LEGAL REGIME MOVING FROM ENVIRONMENTAL PROTECTION TO SUSTAINABILITY? 1 1. Unlike Antarctica, the Arctic is not a Nature Reserve 1 2. Adequacy of Current Environmental Legal Regime 2 II. THE CURRENT ARCTIC ENVIRONMENTAL LEGAL REGIME 2 1. The Arctic Region Environmental Issues in the Arctic 3 2. The regional Legal Regime Overview of Regime Growth in Arctic Cooperation Initiatives 5 3. Arctic Environmental Protection Strategy (AEPS) Evaluation of Effectiveness of AEPS 8 4. Arctic Council Role of Indigenous People Procedure of Council Arctic council Working Groups Evaluation of Effectiveness of Council 15 III. ENVIRONMENTAL ISSUES AND THE ARCTIC APPLICABLE TREATIES AND AGREEMENTS Links between Arctic Environmental Issues and Global treaties and Agreements Evaluations of Global Treaties and the Arctic Environment Existing Global Agreements and the Arctic Marine Atmosphere Biodiversity: Protection of Species and Ecosystems Resource Extraction and Waste Disposal Environmental Impact Assessment (EIA) Indigenous People and indigenous rights Trade Agreements Greater Use of Existing Global Agreements 39 IV. THE ANTARCTIC ENVIRONMENTAL LEGAL REGIME The Antarctic Overview of the Antarctic Treaty System The Antarctic Treaty The Convention for the Conservation of Antarctic Seals (CCAS) The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) 44 v 6. The Protocol on Environmental Protection to the Antarctic Treaty (Protocol or Madrid Protocol) Contribution to International Law 47 V. COMPARISON OF POLAR ENVIRONMENTAL LEGAL REGIMES Relationship Between Two Polar Legal Regimes Different Legal Treatment of Common Issues Science Territorial Sovereignty National security Environment Evolution of Two Legal Systems 54 VI. NEED FOR REGIONAL ARCTIC AGREEMENT ON ENVIRONMENTAL PROTECTION Accelerating Arctic change How well is the Arctic legal regime protecting the environment? Regional Arctic environmental protection agreement Advantages of an Arctic environmental treaty Disadvantages of an Arctic environmental protection treaty Potential Subjects for a new Agreement Innovative Features for a new Treaty or Regional Agreement Indigenous Participation Co-management Traditional Ecological Knowledge (TEK) Impact Benefit Agreements Indigenous Knowledge and Intellectual property Rights Conclusion 66 BIBLIOGRAPHY 67 vi Preface For many years, concerns have been expressed about environmental issues in the Arctic. This interest was again evident during the World Conservation Congress 2000, when the IUCN membership unanimously adopted a Resolution recognising the circumpolar Arctic as a priority ecosystem, calling also for the preparation of an Arctic Strategy and Action Plan. The publication presented here is intended to assist those working on the Arctic legal regime as well as IUCN members concerned with the development of this Arctic strategy and plan. We are very grateful to Linda Nowlan, who is both the Executive Director of the West Coast Environmental Law and a member of the IUCN Commission on Environmental Law, for providing this excellent and comprehensive approach to the issues. Recent science details the threats to this unique ecosystem. While the Arctic region unlike Antarctica has been inhabited for thousands of years, it is under unique threat because of its vulnerability toward resource exploitation and the deposition of various airborne pollutants. With its varied populations, and with eight Nations asserting territorial interests, the Arctic needs a careful approach to its protection and development. Various legal initiatives have arisen from this political amalgam, including the legal arrangements applicable to the Arctic set forth in global treaties such as the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity, and in regional arrangements emanating from the Long Range Treaty on Atmospheric Pollution. Such legal arrangements represent binding approaches, but for many issues within the Arctic, such as mining extraction, a non-binding approach applies, unlike in Antarctica. This soft law approach began with the Declaration on Protection and the Arctic Environmental Protection Strategy (AEPS), a voluntary mechanism adopted in 1991 by the eight Arctic countries. When the Arctic Council was created in 1996, it took over the responsibility for policies and programs developed under the AEPS. The Arctic Council has been viewed as continuing the tradition of the soft law approach, and other non-binding instruments have followed. The IUCN Environmental Law Centre and the International Council of Environmental Law (ICEL) have initiated this work in order to explore whether the current approach can sufficiently address the threats to the Arctic. It is especially important to learn from the experience gained from the Antarctic Treaty regime. While, as Ms. Nowlan points out, these regions are in many ways polar opposites, she quite rightly also notes that they have many similarities. Therefore, this review of these legal and policy contrasts can help us consider future directions for the Arctic legal regime. With the help of a generous grant from the Elizabeth Haub Foundation (Canada), IUCN and ICEL are pleased to be able to add this important paper to the current discussion. Charles Di Leva Director, Environmental Law Programme Wolfgang E. Burhenne Executive Governor, International Council of Environmental Law vii Aknowledgments This report was initiated by Charles Di Leva, Director of the Environmental Law Centre of IUCN - The World Conservation Union, (IUCN-ELC), and Wolfgang Burhenne, Executive Governor of the International Council for Environmental Law (ICEL). The author and West Coast Environmental Law Research Foundation would like to thank the following people who made generous contributions of their time and knowledge to assist with the preparation of this report: Philippe Cousineau and Suzanne Steensen of the Canadian Department of Foreign Affairs and International Trade, Peter Ewins of WWF Canada, Terry Fenge of the Inuit Circumpolar Conference, Dr. Grete K. Hovelsrud-Broda of the North Atlantic Marine Mammal Commission, Charles Di Leva, Lee Kimball, Sune Sohlberg of the Department of Environment, Sweden, and Chair of the Conservation of Arctic Flora and Fauna Working Group of the Arctic Council, the United Nations Environment Programme s Division of Environmental Policy Development and Law, and Professor David VanderZwaag of Dalhousie University Law School. Thanks also to Christopher Heald, Ceciline Goh and Alexandra Melnyk for proofreading and general administrative assistance. Thanks to Carole Therrien for the cover photograph of Canadian Arctic scenery. Special thanks to Professor Jutta Brunnée of the University of Toronto Faculty of Law for her detailed and thought provoking review, to Sasha Nowicki for valuable research assistance, and to LEAD International for the opportunity for the author to visit the Northwest Territories in Canada in August The author, along with the ICEL and the IUCN Environmental Law Centre would like to thank the Elizabeth Haub Foundation (Canada) for making this report possible through its grant support. The views expressed are those of the author and the West Coast Environmental Law Research Foundation. Any errors and omissions are, of course, solely the responsibility of the author. viii Executive Summary This report describes the current Arctic environmental legal regime. The report also discusses the possibility of negotiating a sustainability treaty for the Arctic, with similar high standards of environmental protection as those in the 1991 Protocol on Environmental Protection to the Antarctic Treaty. The Arctic treaty could encompass the sustainable development focus of the Arctic Council, and enshrine innovative legal approaches already in use, such as the unique role of indigenous peoples. Current Legal Regime The Arctic legal regime consists of a series of soft law agreements, which started with the 1991 Declaration on Protection of the Arctic Environment and the Arctic Environmental Protection Strategy (AEPS). The AEPS was absorbed into the work of the Arctic Council, created in The AEPS was never legally binding, unlike comparable agreements in the Antarctic. The Arctic Council is a high level intergovernmental forum. It conducts work through five Working Groups. The major activities of the Working Groups are briefly summarized in the report. All land areas fall under the uncontested sovereignty of one of the eight Arctic states (Canada, Denmark/Greenland, Finland, Iceland, Sweden, Norway, Russia and the United States) and so national domestic laws contain the primary legal controls on the environment. However, international environmental laws and principles play an increasing role in this legal regime. The report provides an overview of the global treaties and agreements that apply to the Arctic region. Global agreements and treaties affect protection of the Arctic environment, and some were designed to address environmental problems that surface most acutely in the Arctic. Many of the most urgent Arctic environmental issues, such as climate change and persistent organic pollutants can only be solved through global, multilateral approaches as the roots of these problems lie outside the Arctic. The Arctic and Antarctic Legal Regimes Comparisons with the well-developed Antarctic Treaty System (ATS), consisting of three treaties and one comprehensive Protocol on Environmental Protection, inevitably arise when considering the relatively undeveloped Arctic legal regime. The report compares the environmental legal regimes of the two polar regions. The polar regions are polar opposites in many respects. In the Antarctic, land, rather than the ocean is the focus of the legal regime. The absence of an indigenous population and traditional way of life also distinguishes the South from the North Pole. Industrial and resource development, starting in 19 th century with whaling and sealing, continuing with mining, hydrocarbon and other industrial development, is more extensive in the Arctic than the Antarctic and has resulted in more substantial environmental impacts. Another distinguishing factor is that Antarctica is non-militarized while the Arctic is highly strategic, militarized territory. The Arctic has a population of about 3.8 million, while the Antarctic has no permanent resident population, and is visited by only about 15,000 tourists a year. Conversely, similarities between the two regions abound. Both regions have fragile environments susceptible to damage from outside sources. The poles are empty, inaccessible, and harsh. ix Extreme climactic conditions prevail. Unique flora and fauna set these regions apart from more temperate zones. Antarctica, as a single continent, with no indigenous or permanent human inhabitants, and no commercial or industrial activities, is more easily governed by a single comprehensive environmental treaty regime. Resolution of sovereignty over the Antarctic land mass and its offshore areas has dominated legal discussions in that region, issues suited to be resolved by a treaty system. The Arctic, on the other hand, is a region dominated by the existing national legal systems of the eight Arctic states, which cover not only their land areas but their marine territories, to the limit of the 200 nautical mile exclusive economic zone. The inhabitants of this region require a legal regime that permits them to thrive, while at the same time protecting the fragile environment. Adequacy of Current Arctic Environmental Legal Regime A key question is whether the environmental protection provisions implemented on the national territory of the Arctic states and the coordinated activities of the Arctic Council and its Working Groups are sufficient to protect the Arctic. There are numerous holes in the Arctic environmental legal regime when compared to the comprehensive regime in place in the Antarctic. Despite the differences that a large resident population and industrial development make, both polar regions are barometers of the global environmental protection system. PCB laden whale tissue, melting ice from greenhouse gases produced thousands of miles away, and declining populations of some charismatic polar species show that the Arctic environment is not yet adequately protected. In general, pollution is more adequately addressed by binding legal agreements than biodiversity protection, both by the global agreements in place, and by the Arctic Council. The legal regime is weaker when considering protection of species and spaces and the rich biodiversity of the still relatively untouched Arctic. Need for a New Arctic Environmental Agreement Opinion is split on the need for a region wide treaty, though many conservation organizations, scientists, government representatives and academic experts favour a new Agreement. The main advantage of a treaty is the potential for increasing states obligations to protect the environment through the elaboration of enforceable targets, timetables, and scheduled dues. A binding legal agreement could attract more serious attention from states. Much of the substance of a framework agreement is already in place. It may be relatively easily to formalize an Arctic Council agreement, enshrine the mandates of the five Working Groups of the Council, and add innovative features designed to address the particular needs of the Arctic. The change from a strategy coordinated by Arctic states, the AEPS, to an organization that includes the Strategy and other work elements, the Arctic Council, happened in a relatively short time frame. As the pace of change accelerates in the Arctic, converting the Arctic Council agreement into a more comprehensive treaty may be warranted. The precautionary principle may be incorporated into a new treaty to ensure that one of the last of earth s great wilderness areas remains intact. Unlike the Antarctic, whose legal regime developed to stall territorial claims, halt militarization and preserve a pristine environment for scientific research, the Arctic s nascent structure includes the development needs of people. There is no Northern movement to replicate the nature reserve at the South Pole. The Arctic Council is one of the first regional governance bodies devoted to environmental protection. With the addition of the Working Group on Sustainable Development, x the Council s focus has shifted to encompass sustainable development. A new Agreement could reflect this sustainability focus. The main argument against a new treaty is that the current soft law arrangement is relatively new and it is too early to evaluate whether it needs to be supplemented by an enforceable treaty. Arctic states may be unlikely to want to invest time and energy into a treaty at this stage. The Arctic has become a hotbed of innovative approaches to governance. A new agreement or treaty could incorporate the innovations that have been adopted to date; and could seek to use new innovate approaches. For example, a regional agreement could build on the special role afforded to indigenous groups as Permanent Participants in Arctic Council. Although devolution of regulatory powers through a co-management regime will remain a subject for domestic law, a regional agreement could encourage more widespread use of this legal tool. An expanded role for traditional ecological knowledge is also a possible topic for inclusion in a regional environmental agreement. The use of impact and benefit agreements is another innovative feature in some Arctic states. Standardization of this requirement could go a long way to achieving sustainable development in the Arctic region. Allowing some resource development to proceed in less ecologically sensitive areas, with the full involvement of affected residents of the region and complete legally enforceable agreements for mitigating harmful impacts and sharing benefits would be a step beyond traditional environmental impact assessment towards a sustainable future. xi I. The Arctic Legal Regime Moving from Environmental Protection to Sustainability? The fragile Arctic is under growing environmental stress. Accelerated resource extraction, industrial expansion and distant polluting activities threaten the ecological integrity
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