The Arctic in Play: Governance in a Time of Rapid Change PDF 2009

THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL The International Journal of...

THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL The International Journal of LAW Marine and Coastal Law 24 (2009) 423–442 brill.nl/estu The Arctic in Play: Governance in a Time of Rapid Change Oran R. Young Professor, Bren School of Environmental Science and Management, University of California at Santa Barbara, USA Chair, Scientific Committee of the International Human Dimensions Programme on Global Environmental Change Abstract The current wave of interest in Arctic affairs has struck with startling speed and remarkable force. Fueled by the writings of pundits asking provocative questions (e.g., “who owns the Arctic?”), this wave has now captured the attention of policymakers and begun to trigger policy responses (e.g., the May 2008 Ilulissat Declaration from the five Arctic coastal states). This article examines these developments from the perspective of governance, raising questions about underlying drivers, the identity of relevant stakeholders, the framing of issues for con- sideration in policy settings, and the extent to which a new regime for the Arctic Ocean or an even more ambitious legally binding convention or treaty for the whole Arctic region is needed. The general conclusion is that many proposals on offer in this realm are simplistic but that there is a strong case for taking a number of pragmatic steps to address specific problems of governance in the far North during an era of rapid change. Keywords Arctic Council; ecosystem-based management; geopolitics; governance; policy discourse; stakeholder; state change Introduction The current wave of interest in Arctic affairs has struck with startling speed and remarkable force. This development owes much to the imaginations of various pundits who are limning provocative questions (e.g., “who owns the Arctic?”) and sketching scary scenarios (e.g., the development of a diplomatic gridlock leading “the Arctic to erupt in an armed mad dash for its resources”).1 For the most part, these concerns are greatly exaggerated. Yet documentable 1 The quoted phrases are from J. Graff, “Fight for the Top of the World” (1 October 2007) Time, URL: www.time.com/time/world/article/0,8599.1663445,00.html, and SG Borgerson, “Arctic meltdown: the economic and security implications of global warming”, 87 Foreign Affairs (2008) 63–77. © Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/157180809X421833 Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck 424 O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 occurrences suggest it would be a mistake to dismiss this new wave of interest in the Arctic as an epiphenomenon that we can safely ignore. Large-scale envi- ronmental changes associated with global warming (e.g., the rapid melting of sea ice) are current realities rather than future prospects in the Arctic. The Europeans have become increasingly vocal about “Europe’s interests in the Arctic’s energy resources, fisheries, new shipping routes, security concerns, and environmental perils.”2 Russia is rebuilding its military forces in the North and exercising these forces in a manner that some observers see as provoca- tive.3 Taken together, these and a number of related developments are dra- matic enough to justify the proposition that the Arctic is experiencing what systems analysts think of as a state change. What started as a field day for pundits envisioning a rush to extract the Arctic’s resources leading to serious clashes among major players has evolved into a matter of concern to policymakers. The five Arctic coastal states, meet- ing in Greenland during May 2008, issued the Ilulissat Declaration asserting their dominance in the region “[b]y virtue of their sovereignty, sovereign rights and jurisdiction in large areas of the Arctic Ocean” and suggesting rather pointedly that others leave Arctic affairs in the hands of the coastal states.4 In September 2008, the Nordic Council of Ministers organized a conference, also in Greenland, entitled “Common Concern for the Arctic”, that provided a forum for various non-Arctic states and non-state actors to articulate their concerns regarding developments in the Arctic.5 The European Parliament followed with a resolution on 9 October 2008 expressing concern about the impacts of climate change on the lives of indigenous peoples and the condi- tion of Arctic ecosystems and looking forward to negotiations designed “to lead to the adoption of an international treaty for the protection of the Arc- tic.”6 On 20 November 2008, the European Commission weighed in with a paper spelling out Europe’s interests in the Arctic and providing the basis for an Arctic policy statement expected to come in the near future.7 Although 2 I. Traynor, “Europe takes first steps towards ‘Arctic policy’ to protect energy security” (20 November 2008) THE GUARDIAN, URL: http:www.guardian/.co.uk/environment/2—9/ nov/20/poles-arctic-europe. 3 “The Arctic contest heats up,” (9 October 2008) The Economist, URL: http:www.economist. com/world/Europe/PrinterFriendly.cfm?story_id=12381767. 4 The Ilulissat Declaration (28 May 2008), URL: http://www.um/NR/rdonlyres/BB00B50- D278=4459-A6BE=6AE230415546/0/ArcticOceanConference.pdf. 5 Common Concern for the Arctic, An Arctic Conference Organized by the Nordic Council of Ministers, 9–10 September 2008, URL: www.norden.org/conference.arctic. 6 L Phillips, “Commission backs Norway’s Arctic vision: no new treaty,” (11 November 2008) Euobserver, URL: http://euobsever.com/9/27104?print=1. 7 Communication from the Commission to the European Parliament and the Council, “The European Union and the Arctic regions,” 20 November 2008, URL: http://eur-lex.europa-eu/ LexUriSer/LexUriSer.do?uri=CELEX:DKEY=483680:EN:NOT. Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck  O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 425 they have adopted a more low-key approach, the Chinese also have made known their growing interest in the Arctic. China has stepped up its research efforts in the Arctic and requested “permanent observer” status in the Arctic Council. What should we make of all these developments? And how should we approach them in the interests of managing human-environment interactions in the Arctic in a responsible and sustainable manner? In this article, I seek to address this issue in a policy-relevant manner through an examination of five specific questions: What are the underlying drivers of the recent surge of interest in the Arctic? Who are the legitimate stakeholders in efforts to address these issues? How should we frame Arctic issues for purposes of policymaking? Do we need a specific international agreement for the Arctic Ocean? Would it be helpful to develop a comprehensive and legally binding treaty (or Charter) for the Arctic as a whole? The pundits’ portrayal of recent developments in the Arctic as a “land rush,” an “Arctic meltdown,” a “very cold war for energy resources,” or “a perfect storm seeded with political opportunism, national pride, military muscle flex- ing, high energy prices and the arcane exigencies of international law” seems frankly unhelpful to an effort to develop thoughtful responses to these ques- tions.8 Projections of recoverable reserves of oil and gas in the Arctic are largely speculative. Experts on shipping have made it clear that there are a number of obstacles to greatly increased commercial shipping in the region and that the proper consideration is cost rather than miles traveled from port to port. Pre- dictions about drastic ecological changes—including popular concern for the plight of charismatic animals like the polar bear—are based on little hard evidence and a great deal of guesswork. Yet the increasing prominence of Arctic issues on the international stage does reflect important changes that call for proactive responses. Some see this development in geopolitical terms and envision the emergence of a new “great game” centered on competition over control of the Arctic’s resources. Handled properly, on the other hand, the growing interest in the Arctic could open up an opportunity to manage a sizable portion of the globe in a peaceful man- ner that makes it possible to experiment with new approaches to environmen- tal governance that are well suited to a world in which complex webs of 8 The quoted phrases are from, respectively, D. Cressey, “The next land rush” (2008) 451 Nature 12–15; Borgerson, op. cit., supra note 1; Nazavisimaya Gazeta, “A very cold war for energy resources” (11 March 2008), and Graff, op. cit., supra note 1. Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck 426 O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 interdependence make it essential to think in systemic terms and high levels of uncertainty put a premium on the development of governance systems that are flexible and capable of adapting to changing circumstances in a timely man- ner.9 In exploring this subject and searching for a constructive way forward, I devote particular attention to the past, present, and future roles of the Arctic Council, a “high-level forum” that has provided a prominent arena for the con- sideration of Arctic issues and achieved significant visibility since its creation in 1996.10 But I also ask whether changing circumstances now call for arrange- ments that differ substantially from the Council, at least in its present form. Underlying Drivers The popular press focuses on the melting of sea ice and the prospect that this might unleash a rush to extract reserves of oil and gas, to launch new indus- trial fisheries, to use the Arctic as a preferred route for commercial shipping, and to treat the region as a destination for tourists. Developments of this sort are certainly possible. But they are, in large measure, symptoms or surface manifestations of change rather than underlying drivers of change. If we approach the Arctic as a complex and dynamic socio-ecological system, the idea of state changes as underlying forces that need to be understood comes into focus.11 Here, I make the case that the Arctic experienced a state change in the late 1980s and early 1990s and that there are good reasons to believe that recent developments have pushed the region across a threshold triggering a second state change that must be taken into account in efforts to address Arctic issues effectively today and in the near future. The state change of the 1980s/1990s arose, for the most part, from socio- political developments including the end of the cold war, the collapse of the former Soviet Union, and the opening of the Arctic to a variety of initiatives framed in circumpolar rather than global terms.12 Captured in President Gor- bachev’s iconic 1987 Arctic “zone of peace” speech, the effect of this state change was to decouple or delink the Arctic from overarching global concerns 9 See also O.R.Young, “Whither the Arctic? Conflict or cooperation in the circumpolar north” (2009) 40 Polar Record 1–10. 10 The characterization of the Arctic Council as a “high-level forum” is from the Ottawa Dec- laration on the Establishment of the Arctic Council (1996) 35 ILM 1385–1390. See also O.R. Young, “Governing the Arctic: from cold war theater to mosaic of cooperation” (2005) 11 Global Governance 8–15. 11 B. Walker and D. Salt, Resilience Thinking: Sustaining Ecosystems and People in a Changing World (Island Press, Washington, DC, 2006). 12 G. Osherenko and O.R. Young, The Age of the Arctic: Hot Conflicts and Cold Realities (Cam- bridge University Press, Cambridge, 1989). Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck  O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 431 tain that the members of the Arctic Club—whether in the form of the 5 or the 8—will be forced in due course to acknowledge the claims of other stake- holders in the far North.21 It is probable that these developments regarding stakeholders will have a negative impact on the Arctic Council, a body that owes its existence to the decoupling state change of the 1980s and 1990s. Given the inability of the council to operate as a regulatory body, many stakeholders may see little rea- son to be distressed by this development. Still, we can expect a period in which a fair amount of time and energy will be expended on debates about the identity of the relevant stakeholders, in contrast to focusing on the substantive concerns giving rise to a demand for governance in the Arctic. This is not necessarily a bad thing. But to the extent that developments like climate change produce a demand for prompt responses to specific problems of gov- ernance, the expenditure of time and energy on resolving questions about the identity of the relevant stakeholders may prove costly. Framing Policy Issues Policy agendas are always crowded with issues defined in concrete terms.22 In the Arctic today, there are numerous specific issues, such as how to resolve jurisdictional claims pertaining to the seabed, what sort of regulatory code to develop to deal with increased shipping, how to anticipate pressures to initiate industrial fishing in the far North, how to prepare for the possibility of oil spills under Arctic conditions, what rules to impose on tour operators, and so forth. All these issues are significant; they are likely to give rise to vigorous debates that result in decisions that may well have significant impacts on human activities in the circumpolar north. Underlying such debates, however, are deeper or broader issues regarding the underlying conceptual frameworks we employ to organize thinking about specific policy issues and the discourses we develop to bring these frameworks to bear in specific situations. Although they do not prescribe detailed answers to specific questions about policy, the influence of such discourses is enor- mous. They often shape the way we formulate questions, and they can direct our thinking in ways that favor some answers and rule out others. The current state change in the Arctic raises fundamental issues about the character and the content of the policy discourse we should use in coming to terms with 21 M.J. Peterson, Governing the Frozen South: The Creation and Evolution of the Antarctic Treaty System (University of California Press, Berkeley, 1988). 22 J.W. Kingdon, Agendas, Alternatives, and Public Policies (2nd ed., Longman, New York, 1995). Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck 432 O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 Arctic affairs. Two discourses, in particular, are in competition at this stage. I shall call one the ‘discourse of geopolitics/political realism’ and the other the ‘discourse of ecosystem-based management’. The writings of many of the pundits suggest, at least implicitly and often explicitly, that the Arctic is being overtaken by the ‘discourse of geopolitics/ political realism’.23 They anticipate an era of “high politics” marked by the assertion of jurisdictional claims, a growing competition for control over the Arctic’s natural resources, a remilitarization of the region, and more or less frequent clashes among leading states active in the Arctic. This discourse, which assumes that states are the relevant players and that relative power among the key states or coalitions of states is the critical determinant of out- comes, anticipates that the emergence of a new “great game” may well lie in store for the Arctic. As a region that is sparsely inhabited but that may contain a treasure trove of natural resources, including large quantities of oil and natu- ral gas, the Arctic on this account will become an irresistible target of interest for powerful states as well as leading corporations engaged in the exploitation of natural resources. Implicit in this account is the proposition that the Arctic will be of interest to influential non-Arctic states, such as China, or consortia of states, such as the EU. As we move into a world in which the U.S. is no longer able to get its way as the world’s sole superpower, it will become harder and harder to exclude actors like China, Japan, and the EU when it comes to negotiating deals regarding Arctic issues. The Arctic will become a theater of operations for extractive industries and military forces, a fact that makes the prospect of an “Arctic meltdown” that precipitates armed clashes a real and present danger. The alternative policy discourse, based on the idea of ecosystem-based management, starts from the premise that we should think about the Arctic as a complex and dynamic socio-ecological system. Such systems are prone to the impacts of tipping points, non-linear changes, and system flips that can lead to state changes that are undesirable in anthropogenic terms and that are hard to reverse once they occur.24 On this account, we should focus on large socio-ecological systems (e.g., large marine ecosystems), avoid the fragmenta- tion resulting from battles over jurisdictional claims, and devise cooperative regimes that make it possible to address interrelated Arctic issues in an inte- grated manner. There may be some scope for the development of sectoral arrangements (e.g., distinct regimes for oil and gas development, fishing, ship- ping) within this framework. But the key to sustainability lies in paying atten- 23 K.N.Waltz, Theory of International Politics (Addison Wesley, Reading, MA, 1979). 24 L.H. Gunderson and C.S. Holling (eds.), Panarchy: Understanding Transformations in Human and Natural Systems (Island Press, Washington, DC, 2002). Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck  O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 433 tion to the complex linkages arising from interactions between human activities and biophysical forces. A matter of particular importance arising from the application of this discourse to the Arctic centers on the connections between the Arctic and the Earth System as a whole. Nowhere is this more apparent than in the case of climate change, in which the Arctic is already experiencing far-reaching impacts of climate change, and the region may well shift from sink to source with regard to greenhouse gas emissions in the near future. But other regional/global links are important as well. For example, persistent organic pollutants, which are released in the mid-latitudes, regu- larly show up at very high levels in the Arctic. The global interest in the Arctic’s oil and gas reserves is fueled by the needs of industrial societies far removed from the region rather than by any significant demand for energy arising in the Arctic itself. The Arctic Council, operating in the setting produced by the state change of the late 1980s and early 1990s, has played an important role in developing and disseminating the ‘discourse of ecosystem-based management’ as applied to Arctic affairs. In a stream of influential scientific assessments, starting from the 1997 State of the Arctic Environment Report and running to the 2004 Arctic Climate Impact Assessment and beyond, the Council has commissioned and disseminated a set of well-documented and highly accessible reports that make it indisputably clear both that major biophysical changes are occurring in the Arctic and that there are strong and well-delineated links between what goes on in the Arctic and what happens elsewhere on the planet.25 In the case of climate change, many analysts have taken to treating the Arctic as the canary in the mine in the sense that the region is providing us with a mass of informa- tion about impacts of climate change that can be expected to occur in lower latitudes in the future. If anything, the fact that the Arctic Council is not a regulatory body has enhanced its influence in developing and disseminating a ‘discourse of ecosystem-based management’ for the Arctic. Because the Coun- cil is not embroiled in the complexities and inevitable antagonisms of regula- tory politics, it is comparatively free to engage in generative activities whose influence takes the form of shaping the underlying discourse on Arctic policy rather than making decisions about specific issues.26 Yet, this comparative freedom comes at a price in terms of political connec- tions that raises far-reaching questions about the longevity of the Council’s 25 Arctic Monitoring and Assessment Programme, Arctic Pollution Issues: A State of the Arctic Environment Report (AMAP, Oslo 1997) and Arctic Climate Impact Assessment, op. cit., supra note 15. 26 On the types of roles international regimes play, see O.R. Young, Governance in Word Affairs (Cornell University Press, Ithaca, 1999), Ch. 2. Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck 434 O.R. Young / The International Journal of Marine and Coastal Law 24 (2009) 423–442 influence in the wake of the new state change that is tightening the links between the Arctic and global concerns and that may well exert pressures that increase incentives to look at Arctic issues through the lens of the ‘geopolitics/ political realism discourse’. The Council is expressly prohibited from address- ing conventional security issues.27 It is lacking in authority that would induce important stakeholders to pay attention to its views regarding the opening of the Arctic to oil and gas development, industrial fishing, or commercial navi- gation. The fact that the Arctic coastal states have elected to bypass the Coun- cil in addressing the issue of seabed jurisdiction is not a good sign. And powerful outsiders, like China and the EU, are not likely to be content to fol- low the lead of the Council in addressing Arctic issues, even though they profess to be motivated by a concern for matters of environmental protection and the rights of indigenous peoples. Of course, it is possible that the discourses of ‘geopolitics/political realism’ and ‘ecosystem-based management’ will both exert influence in the handling of Arctic issues during the near future. It would be incorrect to argue that the two discourses are compatible with one another as applied to policy issues in the Arctic. The ‘discourse of ecosystem-based management’ seeks to transcend jurisdictional boundaries, approach socio-ecological systems in holistic terms, and provide a rationale for collaborative management practices, after all, whereas the ‘discourse of geopolitics/political realism’ focuses on matters of control and anticipates more or less severe conflicts between or among those seeking to exploit specific natural resources like oil and natural gas. Nonetheless, there is nothing new about the occurrence of cognitive dissonance in the world of public policy. It is perfectly possible, under the circumstances, that neither of these discourses will triumph over the other in the near future and that many debates about policy issues in the Arctic will take the form of arguments between those who see the issues through the lenses of these disparate discourses. A Regime for the Arctic Ocean What does this analysis have to tell us about the desirability of establishing what advocates describe as a “regional agreement on management and conser- vation of the Arctic marine environment” or “a comprehensive treaty regime for the Arctic Ocean beyond national jurisdiction”?28 Given the dramatic bio- 27 Ottawa Declaration on the Establishment of the Arctic Council, op. cit., supra note 10. A footnote to the main text of the Ottawa Declaration states that “The Arctic Council should not deal with matters related to military security.” 28 The quoted phrases are from R. Huebert and B.B. Yeager, “A New Sea: The Need for a Regional Agreement on Management and Conservation of the Arctic Marine Environment” Downloaded from Brill.com09/15/2022 12:53:28PM via University of Innsbruck