Sustainable Development, Natural Resource Extraction, and the Arctic: the Road Ahead

• Publication year: 2016

§ 33 Alaska L. Rev. 31. SUSTAINABLE DEVELOPMENT, NATURAL RESOURCE EXTRACTION, AND THE ARCTIC: THE ROAD AHEAD

Alaska Law Review
Volume 33, No. 1, June 2016
Cited: 33 Alaska L. Rev. 31

SUSTAINABLE DEVELOPMENT, NATURAL RESOURCE EXTRACTION, AND THE ARCTIC: THE ROAD AHEAD

Edward Canuel ^[*]

ABSTRACT

Sustainable development has emerged as an integral nexus, linking together critically important global issues including environmental stewardship and economic growth. Understanding sustainable development demands a close analysis of evolving definitions, conceptual applications, and areas of convergence and divergence within international, regional, and domestic institutions. The import and impact of hard law and soft law must additionally be explored to understand the application of sustainable development to the Arctic. This Article suggests a three-tier framework to assist the multiplicity of stakeholders with diverse equities to navigate the socio-economic and legal hurdles and potential associated with Arctic development. First, a trend has emerged where soft law is effectively "hardening." Second, the guiding role of domestic law must not be underestimated. The final tier proposes that multidisciplinary Arctic approaches are integral and yield efficiencies. Taken together, this framework provides guidance for novices and experts alike when considering Arctic sustainable development.

INTRODUCTION

With climate change affecting and shaping a myriad of human, economic, and geopolitical issues, the import of sustainable development is growing. ^[1] Sustainable development plays a crucial role in the Arctic, where the evolving climate presents commercial challenges and opportunities. ^[2] This Article interprets Arctic sustainable development through domestic and international legal developments, identifies issues important to key Arctic constituencies, and proposes an interpretive framework.

Part I discusses the evolution of sustainable development. The progression of this concept will be reviewed from international and U.S. domestic law perspectives while evaluating the increasing role of energy in sustainable development policy formulation. Part II discusses how sustainable development "fits" within the Arctic legal context, particularly analyzing hard and soft, regional, and U.S. domestic legal drivers. Included is an interpretation of sustainable development initiatives through the interdisciplinary Arctic forum: the Arctic Council. Part III considers certain lenses through which Arctic sustainable development may be viewed (if not measured), including key stakeholder engagement. Increased attention to Arctic sustainable development will, among other things, foster widespread interdisciplinary attention to Arctic studies, assist with the assessment of existing and potential Arctic state strategies, engage parties involved in natural resource development projects, and recognize stakeholder aspirations. Accordingly, this Article notes that public officials, academics, and citizens of the North play an essential role in analyzing the range and effectiveness of Arctic state-sanctioned initiatives and projects.

I. UNTANGLING SUSTAINABLE DEVELOPMENT

A. International Perspectives, Definitions, and the Role of Natural Resource Extraction

The term "sustainable development" has been broadly interpreted to incorporate existing and future economic, human development, and social issues and needs. The almost instinctive nature of sustainable development stresses the present and future management and availability of natural resources. ^[3] A perceived lack of universal agreement on the sustainable development's parameters has precipitated criticism. ^[4] Additionally, authors have contended that the broad definition of sustainable development proves difficult to manage. ^[5]

Sustainable development has increasingly entered into the context of institutions and legal doctrine. ^[6] The term was first introduced on the global stage during the 1970s. In 1972, the U.N. convened the Stockholm Conference on the Human Environment to address the evolving environment. ^[7] The Conference witnessed a divide between industrial countries, concerned with global environmental degradation as an imminent threat to humankind, and developing countries, focused on addressing poverty. ^[8]

International sustainable development ^[9] increasingly matured within the late 1980s and further captured both obligatory "hard" and non-mandatory, norm-fostering "soft" law. ^[10] The landmark Brundtland Commission's 1987 Our Common Future defined sustainable development as meeting "the needs and aspirations of the present without compromising the ability to meet those of the future." ^[11] The Commission championed economic growth accomplished through "policies that sustain and expand the environmental resource base." ^[12] The Commission also recognized an inextricable link between economic development and environmental issues, cautioning that certain forms of development may "erode the environmental resources upon which they must be based, and environmental degradation can undermine economic development." ^[13] Following the Brundtland Commission's Report, the 1992 U.N. Conference on Environment and Development in Rio de Janeiro led nearly 180 countries to adopt the Declaration on Environment and Development ("The Rio Declaration") that set out sustainable development principles. ^[14]

The transboundary quality of international environmental law has also evolved. For example, Principle 4 of the Rio Declaration states that "[i]n order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it." ^[15] In addition, Rio Declaration Principle 12 proposes that "unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided." ^[16] The Rio Declaration Principles gradually became recognized and accepted within international arbitration. For example, a tribunal under the auspices of the Permanent Court of Arbitration contending with a transboundary environmental controversy between Belgium and the Netherlands held that:

Principle 4 of the Rio Declaration on Environment and Development . . . provides that environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Importantly, these emerging principles now integrate environmental protection into the development process. Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm . . . . This duty, in the opinion of the Tribunal, has now become a principle of general international law. This principle applies not only in autonomous activities but also in activities undertaken in implementation of specific treaties between the Parties. ^[17]

The Conference led to several other public international law deliverables. For example, Agenda 21 recommended ways to address environmental degradation and further sustainable development. ^[18] Additionally, in 2006 the UN Millennium Declaration fostered goals that broadened sustainable development to include a significant social dimension and sought to, among other things, (1) eradicate "extreme" hunger and poverty, (2) promote gender equality and female empowerment, (3) combat infectious diseases, (4) guarantee environmental sustainability, and (5) develop a global partnership for development. ^[19] Moreover, the 2012 Rio+20 United Nations Conference on Sustainable Development produced a declaration reiterating sustainable development principles. ^[20] This outcome document presented a common vision and reaffirmed political commitment to original Rio principles by assessing post-Rio progress, outlining stakeholder engagement, exploring green economy in the context of poverty eradication and sustainable development, and providing a framework for action and follow-up. ^[21]

While the Millennium Development Goals (MDG) from 2006 expired in 2015, the U.N. General Assembly adopted the Resolution Transforming Our World: the 2030 Agenda for Sustainable Development (the "2030 Agenda") on September 25, 2015. ^[22] Building on the MDG, the U.N. outlined seventeen Sustainable Development Goals with 169 associated targets effective as of January 1, 2016 that will guide the UN's decisions over the next fifteen years. ^[23] The 2030 Agenda outlines an ambitious set of priorities including ending global poverty, combatting inequalities, protecting human rights, promoting gender equality and empowerment, ensuring the lasting protection of the planet and its natural resources, and creating conditions for "sustainable, inclusive and sustained economic growth," shared prosperity, and "decent work for all." ^[24]

The sustainable development discussion has also increasingly focused on natural resource extraction and energy issues, ^[25] emphasizing the importance of cleaner hydrocarbon development and an increased role for renewable energy within the international energy mix. ^[26] Renewable energy, in particular, is progressively entering into the global sustainable development context, ^[27] especially within the U.N. Framework Convention on Climate Change (UNFCCC). ^[28] Expanded renewable...