The Arctic has some exceptional features. It is currently covered by ice that is significantly melting because of global warming. The Arctic is prone to environmental degradation. It is shared by several countries. Consequently, it is not surprising that a call for a new treaty regime for the Arctic has increased just like the Antarctic Treaty. This essay explores whether there is a need for a new treaty regime to cover the Arctic, comparable to the Antarctic Treaty, having regard to the recent developments in this polar area such as climate change and the possibility of a Northwest Passage.
International Law of the Sea
International law is often regarded as a dynamic legal treaty. This characteristic makes it an acceptable law because it can be established through customary international law. In some instances, international law is not regarded as general. That is, the law is geographically restricted to specific regions such as the Antarctic Treaty or the Svalbard Treaty. These laws may be formulated based on an emerging need to cover specific geographical regions and territorial water, as was the case of the Antarctic Treaty. Therefore, a particular treaty can only cover a well-defined geographical location.
It has been observed that several parties have expressed their interests in the Arctic because the region is believed to have valuable natural resources, including oil and gas. Equally important is that the Arctic region has a vulnerable environment. These peculiar characteristics call for special deliberation among concerned countries and other interested parties. Based on the International Maritime Organization (IMO) Guidelines and Article 234 of the United Nations Convention on the Law of the Sea (UNCLOS) (UNCLOS) III, specific legal treaties should be developed for the Arctic. This implies that any new legal instruments will have to be created within the existing legal frameworks. When an Arctic Treaty is considered, there is an indication that “the UN Convention on the Law of the Sea is seen as perhaps the best legal framework ever formulated”. Thus, one may assume that any new legal requirements for the Arctic can be managed within the existing maritime legal framework of the Convention. In addition, it is imperative to note that the melting ice will create new paths for moving ships under the IMO Guidelines. These ship movements might require legally binding legal frameworks. Thus, if it happens so, then the new treaty regime is most likely to focus on these issues.
So far, only a few strong initiatives for a particular Arctic treaty exist. Among these suggestions, the World Wildlife Foundation (WWF) has the strongest suggestion. The WWF has conducted a problem gap analysis study to determine the effectiveness of the existing laws. As a result, it has been concluded that the current legal instrument for the Arctic marine environment is insufficient and incoherent. It fails to consider the current realities observed in the ecosystem. Moreover, the current legal instrument does not account for cumulative effects of different activities such as fisheries, and oil and gas. Based on the research findings, the WWF sees the need for a new legal framework for the Arctic region. The new legal instrument must account for the whole Arctic and all sectors that relate to it. It is believed that the new treaty for the marine Arctic would focus on the identified gaps and seal possible legal loopholes. This approach would ensure effective management of the marine environment. The concern for environmentalists is the new sea that is being created from the melting ice. The new treaty regime will have to borrow heavily from the UNCLOS framework but should be specifically designed to meet unique conditions at the Arctic and ongoing changes. Therefore, a new treaty regime should provide a clear regulatory and governance guideline under the following areas. First, it should ensure the protection and conservation of the marine ecosystem within the Arctic region. Second, the treaty should stress the need for sustainability, continuous environmental protection and fair, controlled exploitation of the available Arctic resources. Third, the new treaty regime must account for socioeconomic benefits to the natives. Fourth, it must be legally binding, offer a comprehensive approach to preservation and protection efforts and promotes sustainable development in the region through effective management of resources. Finally, the new treaty regime must specifically address the unexpected changes that may take place in the Arctic region as witnessed today.
No treaty drafted so far
Currently, there has not been a treaty drafted for the Arctic so far because they are adequate international laws to protect the Arctic Ocean, and the region is not ‘lawless’ as some may posit. More than five years ago at the international conference known as the Arctic Frontiers, countries that border the Arctic, including the EU, Russia, the US, and Norway resolved that there was no need for any new international treaty on the region.