Polar politics: change in the Arctic.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion
 
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The panel was convened at 1:00 p.m., Thursday, April 10, by its moderator, Daniel Magraw of the Center for International Environmental Law (CIEL), who introduced the panelists: David Caron of the University of California, Berkeley School of Law; Suzanne Lalonde of the University of Montreal; and Bakhfiyar Tuzmukhamedov, Vice President of the Russian Association of International Law (RAIL), delivering remarks of the Association's President, Judge Anatoly Kolodkin.

INTRODUCTORY REMARKS BY DANIEL MAGRAW *

I will spend a few minutes at the outset describing the really remarkable, extraordinary warming that is happening in the Arctic and some of its physical consequences, and I will identify several of the important international legal issues.

The Arctic has experienced significant warming over at least the last three decades. The rate of warming seems to be accelerating. Even the United States Government officially acknowledges this. Even though its views of the broader issues of climate change remain murky at best, on Arctic warming, the United States Government is clearly on record as saying that it is happening.

The effects of this warming on the sea ice are remarkable. About 43 percent of the summer sea ice has disappeared since 1979, over the last three decades. This involves a positive feedback loop. As the ice melts, less sunlight is reflected back and more is absorbed into the dark waters, thereby warming them, and causing more sea ice to melt. We are essentially on a downward spiral and there is no reason to think it will stop. In fact, many scientists are predicting that there will be no summer sea ice at all by the year 2030 and some even have predicted that there will be no summer sea ice by the year 2013. Even 2030 is within the lifetimes of most of the people in this room, so we are facing a dire situation.

There are other effects as well; it is not just the sea ice. There is less shore ice, there is thinner ice, the permafrost is melting--it is no longer perma--and in some places, it is no longer frost. The composition of the snow is different.

Now, why does this all matter? How do these changes lead to legal issues? One critically important reason why it matters is that it has an effect on the residents of the Arctic, and in particular, on indigenous people such as the Inuit. That is the human dimension. The decrease in shore ice results in greater shore erosion from waves and wind, so that some homes and even villages are falling into the sea. Whole villages have to be moved. The thinner ice makes hunting, which is very important to the culture of the Inuit and to others in the Arctic, much more dangerous because the ice often melts from the bottom, such that hunters and travelers cannot tell whether ice is safe or not. The result is more and more people are falling through the ice. They may lose their legs, they may lose their lives. It is a major problem.

The melting permafrost is destroying the foundations of built infrastructure--of roads, of airstrips, of houses, of other buildings. The changed snow composition makes it impossible to build igloos, which are very important to the Inuit. In the past, when they traveled to hunt, they did not carry tents or other shelter with them; if they got caught in the open, they would build an igloo. They can no longer do that because the snow composition is different. All of these things together arguably implicate human fights of the Inuit, such as the right to use property, the right to life, the right to an adequate standard of living, and the right to take part in their culture. That is one set of legal issues.

Another set of legal implications is that transpolar marine transit is becoming possible. The famed and elusive Northwest Passage is now well within reach. By the way, I would be remiss if I did not point out that today is the birthday of Hugo Grotius, who of course was the champion of freedom of the seas. He was born on April 10, 1583, so it is his 425th birthday. I am sure you will all join me in wishing him a happy birthday, even though we do not agree with him anymore. Of course, the prospect of transpolar transit raises questions of territorial sovereignty, the right of free transit and environmental issues.

A third set of international legal issues is raised by the belief that the Arctic sea bed contains huge deposits of hydrocarbons and other minerals. As much as one quarter of the world's hydrocarbon reserves are believed to be in the Arctic. This has resulted in conflicting territorial claims by five countries: Canada, Denmark, Norway, Russia and United States.

Finally, Arctic warming threatens the environment in important ways, not just as a result of increased shipping, mineral and oil exploitation and other kinds of economic activities that are sure to occur, but also because Arctic wildlife has evolved in the presence of ice, and without ice and with the other changes that I described, their very existence is in danger. The plight of the polar bears is well known. I point you to the handout, which shows not only polar bears, but some of the other effects I have mentioned.

There are at least these four sets of major international legal issues. Without further ado, let me turn to our panelists for discussion of some aspects of these issues.

* President, Center for International Environmental Law.

REMARKS BY SUZANNE LALONDE *

I would like to acknowledge and thank the Canadian Council of International Law for the honor of representing the Council on this panel. I will discuss the issue of the Northwest Passage--that is, the legal dispute over Canada's claim to exclusive jurisdictional control over the waters that form the Northwest Passage. Of course there are five different possible routes which are all grouped under the name Northwest Passage.

It is an entirely appropriate topic for this conference because this is an issue where it has been extremely difficult to separate the politics from the law. Indeed, Canada's current Arctic legal regime has been defined in reaction to political furor and demands following two key incidents, the Manhattan crossings in 1969 and the Polar Sea transit in 1985.

However, I do not feel I have enough time to go over the various legal principles and arguments, which I would have argued validate Canada's position under international law, and to do them justice. Nor, for that matter, do I have time to tackle the arguments raised by jurists in other states contesting certain aspects of Canada's claims. Rather, I have decided that my aim this afternoon should be to touch upon only a couple of considerations which perhaps cloud the legal debate.

First, why are we arguing over the presence of just a few ships in the Arctic Archipelago--mostly Canadian, one or two Russian cruise ships, perhaps, and a couple of crazy Norwegians in a dinghy? There is a strong current even within Canada which argues that concerns over shipping in the Arctic Archipelago are overblown. Part of that argument relies on the fact that the ice is melting so fast that scientists are now predicting that the transpolar route, the one that goes right over the North Pole, will likely open up before the Northwest Passage. So the argument goes, who would want to bother to sail through the narrow and torturous straights of the Canadian Arctic Archipelago when you can just go over the top?

I do believe that the transpolar route will be a reality in the near future, but I would...

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