The Arctic Council: Gatekeeper or Doormat to the World's Next Major Resource Battle?

• Author: Oded Cedar
• Position: J.D. candidate, May 2012, at American University Washington College of Law, specializing in Energy Law and Financial Regulation
• Pages: 40-40

40 SUSTAINABLE DEVELOPMENT LAW & POLICY

THE ARCTIC COUNCIL: GATEKEEPER OR DOORMAT

TO THE WORLD’S NEXT MAJOR RESOURCE BATTLE?

by Oded Cedar*

It has long been said that “Those who cannot remember the

past are condemned to repeat it.”1 If history indeed repeats

itself, then all indicators suggest that the global community

is ripe for another major “land grab.”2 This time, the land at issue

is the Arctic3 and the bounty is the abundant oil and natural gas

reserves trapped beneath its surface.4

Over the last decade, a coalescence of different factors has

shifted the search for natural resources such as oil and gas to the

Arctic.5 Advances in exploration, drilling, and extraction tech-

nologies have helped mitigate the traditionally cost-prohibitive

factors of developing ice-locked reserves.6 Geopolitical concerns

about the waning global supply of oil and gas have also driven

countries to explore for these resources in the Arctic.7 However,

the primary force behind this focus is the undeniable fact that the

Earth’s changing climate is melting away the Arctic’s ice sheet

and permafrost, making the region’s oil and gas reserves acces-

sible for the f‌irst time.8

The Arctic Council (“AC” or “Council”) is a leading forum

for the dialogue on the development of natural resources in the

region.9 This intergovernmental body is comprised of eight

member-nations, all of which border the Arctic Circle.10 The

Council also includes six “permanent-observer” nations11 who,

though they have no voting rights, can participate and contrib-

ute to the work of the Council.12 The AC’s stated mission is to:

“promot[e] cooperation, coordination, and interaction among

the Arctic States . . . on common Arctic issues, in particular [on]

issues of sustainable development and environmental protection

in the Arctic.”13

The AC’s mission stems from the Ottawa Declaration, which

established the AC in 1996.14 This document avows the commit-

ment of AC member-nations to seek “sustainable development

in the Arctic region including conservation and sustainable use

of natural resources.”15 This language from the Ottawa Declara-

tion incorporates the Arctic Environmental Protection Strategy

(“AEPS”) that was instrumental the Council’s creation.16 Thus,

the impetus behind the AEPS and the AC makes it reasonable to

expect as well as demand some action from the Arctic Council

to oversee and regulate the development of fossil fuels in the

Arctic.17

Despite its benevolent mission and establishing documents,

the AC has in actuality provided a forum for member-nations

to lay the groundwork for unsustainable fossil fuel development

in the Arctic.18 Most recently, the Danish ambassador to China

noted his strong support for China’s inclusion into the AC as a

permanent-observer nation.19 This move garnered speculation

from scholars and analysts, who noted China’s aid to Denmark

in the development of Greenland’s natural resources, and China’s

interest in Arctic resources since 2004.20 Canada is an especially

vocal claimant, touting the country’s long-standing sovereignty

over certain areas in the Arctic, and further expressing the coun-

try’s intent to exercise its sovereignty in documents published

with the AC.21 Other actions by the AC member-nations outside

of the forum, like Russia’s placement of a national f‌lag on the

Arctic’s ocean f‌loor, presumably stir echoes through the AC.22

At one point or another, every member nation of the AC has

published reports with the council, expressing their plans to

exercise sovereignty over the region and to develop its fossil fuel

resources.23

These national assertions make fossil fuel extraction in the

Arctic seemingly expected and inevitable.24 However, the AC

member-nations’ plans for fossil fuel extraction contradict their

commitment to protecting the Arctic environment expressed in

the Ottawa Declaration.25 In addition to worsening the effects

of climate change, unchecked oil and gas development can have

direct, catastrophic environmental consequences. For example,

the lack of oversight that allowed the BP oil spill to occur illus-

trates what could happen in the Arctic without proper regula-

tion by the AC.26 Furthermore, the AC has emerged as the key

platform for the indigenous tribes of the Arctic to voice their

concerns.27 Without a proper oversight mechanism, these indig-

enous tribes will lose a key forum for ensuring their negotiating

parity with the member-nations.28 Therefore, it is imperative for

the AC to develop environmentally conscious standards for fos-

sil fuel extraction to protect the Arctic environment under the

Ottawa Declaration. If the AC f ails to do so, then it risks becom-

ing an obsolete and ineffectual organization.

The AC should also create mechanisms that will enforce

the member-nations’ Ottawa commitments and environmental

regulations for oil and gas development in the Arctic. However,

since the AC is a “cooperative” group it currently has no bind-

ing enforcement authority.29 Therefore, the f‌irst step must be

the establishment of the AC’s binding powers, .30 Without the

essential ability to enforce its resolutions, the AC has no mecha-

nism through which it can ensure that its member-nations do

not act in contradiction with the AC’s core missions. However,

given their support for fossil fuel development in the Arctic,

it is unlikely that the AC member-nations will voluntary cre-

ate a new regulatory authority in the region. Thus action must

come from the international community, who —through the

“permanent-observer” nations—must apply pressure on the AC

*Oded Cedar is a J.D. candidate, May 2012, at American University Washington

College of Law, specializing in Energy Law and Financial Regulation.

continued on page 51