The four Arctic law pillars: a legal framework.

Author:Canuel, Edward T.
  1. INTRODUCTION II. THE FIRST PILLAR: THE EVOLVING ARCTIC HARD LAW OF UNCLOS, CUSTOMARY LAW, AND DOMESTIC LEGISLATIVE PROCESSES III. THE SECOND PILLAR: SOFT LAW AND ITS RISING IMPORT IN THE ARCTIC IV. THE THIRD PILLAR: DOMESTIC ARCTIC LAW V. THE FOURTH PILLAR: THE CONFLUENCE OF PRIVATE AND TRANSBOUNDARY LAW VI. CONCLUSION: EVER FORWARD? THE UNANSWERED QUESTIONS OF ARCTIC LAW I. INTRODUCTION

    The Arctic is no longer a far-flung place, a mysterious destination inviting the imagination of explorers and inhabitants of the eight Arctic states. (1) Canadian Prime Minister L.B. Pearson urged (if not presaged) that "'Go North' has replaced 'Go West' as the call to adventure." (2) This call has been answered. Climate change impacts have opened up tremendous commercial opportunities in and raised international awareness of the Arctic's increasingly accessible vast hydrocarbon and mineral resources, burgeoning Arctic agriculture, and time-saving seasonal maritime trade routes. (3) The challenges, however, are stark: the Arctic is warming at nearly twice the rate of the rest of the world, with sea ice decline and ice cap retreat occurring at alarming rates. (4) *** Actual and planned development of Arctic resources has also posed several social, economic, and governance challenges to the indigenous peoples of the North. (5) Within the context of this evolving landscape, the emerging field of Arctic law is developing, with international research centers dedicating significant resources to understand this area. (6)

    At its most basic level, Arctic law involves the law of, in, or directly affecting the Arctic, including the rights, duties, and responsibilities of governmental and private actors. This field is multi-disciplinary in scope, reflecting the myriad of social, economic, and geopolitical issues affecting the Arctic today, which involve several legal disciplines including environmental, indigenous, regulatory, energy, and land use law. Given that Arctic law contends with domestic, regional, and international law, comparative law complexities also exist--namely, needing to understand that laws across legal traditions must consider the cultural and social dynamics at play. (7)

    As the field of Arctic law matures, a framework must exist to capture its complexities and offer insights as to how best to untangle its many components. This Article contends that Arctic law should be understood as the intersection of four pillars: hard law, soft law, domestic law, and transboundary private law. Part II introduces the first Arctic law pillar, hard law. (8) This Part defines and evaluates hard Arctic law, introduces domestic legislative process nuances, and references the import of customary law. Part III focuses on the evolution and utility of the second Arctic law pillar, soft law. Part IV presents an overview of the third pillar, domestic Arctic law. This Part, focusing on United States domestic law (with special emphasis on tribal law), demonstrates that as greater natural resource extraction is emphasized in the Arctic, an intricate web of regulatory law must be adeptly traversed. Part V suggests that the final pillar of Arctic law is transboundary private law. This Part considers that increasing commercial development of the Arctic (9) will necessarily involve contracts across the Arctic states' diverse common and civil law legal systems. Attempts to straddle legal traditions with boilerplate commercial agreements will likely produce unanticipated results. The Article concludes that offering a "one-stop" scholarly shop that assesses, clarifies, and understands the many dimensions of Arctic law will provide great value to multiple stakeholders.

  2. THE FIRST PILLAR: THE EVOLVING ARCTIC HARD LAW OF UNCLOS, CUSTOMARY LAW, AND DOMESTIC LEGISLATIVE PROCESSES

    Hard law is recognized as legally binding obligations that are or can be made to unambiguously define the conduct that they require or proscribe. (10) Hard law provides states with benefits, including the reduction of transaction costs from future repeat interactions, such as negotiation, enforcement, and oversight mechanism costs, ex ante and ex post. These benefits are weighed against the costs of restricting a state's behavior and sovereignty. Hard law is effectively "compulsory" law and has often been expressed via treaties. As such, the 1969 Vienna Convention on the Law of Treaties is often referenced, (11) which, among other things, ensures that the equality and sovereignty of all states are protected--namely, providing that all states may participate in, execute, and ratify treaties. (12)

    States are thus bound by what they consent to, either through implied customary law or explicit treaty-based hard law. Despite the obligatory nature of hard and customary law, enforceability issues still exist. Countries generally comply with international treaty and customary law obligations. That said, compliance issues sometimes emerge, particularly where international norms (13) seemingly conflict with what are perceived as crucial national interests. (14)

    There are no treaties that exclusively contend with the Arctic. We do see, however, treaties and conventions that contend with Arctic-related issues. The primary example is the United Nations Convention on the Law of the Sea (UNCLOS). The Convention guarantees a signatory state's vessels (both commercial and military) navigational rights and freedoms throughout the world's oceans. (15) UNCLOS codifies member rights over all oceanic resources, including on and under the ocean floor in a member state's 200-nautical-mile Exclusive Economic Zone. (16) UNCLOS also provides territorial sea limits, applicable rules related to maritime scientific research in the Arctic, and marine environment protection rights and responsibilities. (17) The Convention covers various interconnected Arctic issues, including fisheries management, pollution prevention, resource conservation, and international shipping regulations. (18) Additional hard law instruments include the Montreal Protocol on Substances that the Deplete the Ozone Layer and the U.N. Framework Convention on Climate Change, which also indirectly protect the Arctic. (19)

    Customary law, stemming from hard law, is the evolution of norms developed by states that create a certain custom, eventually recognized as being legally required,. (20) States thus consistently recognize and practice (21) legal obligations comprised of clear rules that states abide by universally or have acceded to, "out of a sense of such obligation or mutual concern." (22) For example, the United States has not ratified UNCLOS, yet it recognizes the treaty as having the force of customary law.

    There also has been a trend to characterize certain international agreements as hard law, including those without binding dispute settlement mechanisms or mandated for a where states may register complaints. Enter the Arctic Council, the high-level intergovernmental forum of the eight Arctic states, which contends with Arctic-specific issues, most specifically sustainable development and the environmental protection of the Arctic. (23) The Arctic states have universally hailed two Council agreements as legally-binding instruments. The first is the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement). (24) The Agreement specifies obligations over a broad swath of territory: (25) evidencing such obligations, the SAR Agreement uses the word "shall" approximately fifty times in the text. The Agreement requires Arctic states to provide rescue assistance to individuals, regardless of nationality or circumstance, with each Arctic state conducting searches within a designated geographical area of responsibility and establishing Rescue Coordination Centers. (26) In addition to conducting search and rescue operations, the Arctic states are also required to collaborate on preparatory activities and share information on capabilities and data. (27)

    The Arctic Council's 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic also carves out numerous state obligations. (28) Article 20 provides that "the character of the Agreement's Appendices do not constitute an integral part of this Agreement and are not legally binding." (29) By such exclusion, we see that the signatory states otherwise intend the Agreement to indeed be legally binding. Regarding enforcement, this agreement states that "a party that fails to live up to their obligations can be held liable under international law." 30)

    With respect to enforcement, we see the "blurred" aspect of hard law: the Arctic states are bound to "legally enforceable" commitments, yet the agreements that create these commitments do not contain any binding dispute settlement mechanisms. The Arctic states each have input as to what interpretations mean, but there are no forums to file or hash out a complaint of non-compliance.

    The roll-out to a treaty or something comparable may be a highly technical and complex process--and each Arctic state must comply with its own domestic legislative requirements, aside from the intense negotiations required between and among states. In the United States, the term "treaty" has a different domestic legal interpretation than under international law. Treaties require advice and consent by two-thirds of the United States Senate. (31) Alternatively, executive agreements maybe signed by the President without congressional consent. (32) Many international engagements requiring appropriations or criminal prosecutions constitutionally mandate U.S. congressional action. (33) The President often chooses to undertake the treaty process over executive agreements to gain legislative support on issues eventually requiring Congress to pass implementing legislation or to appropriate funds. (34) Otherwise, the executive branch could sign an agreement which cannot be enforced, should...

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