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Viewpoint: Time for an Arctic Treaty!

Increased interest in the Arctic, fuelled by economic concerns related to the ongoing process of climate change, brings the issue of the region's political control and thus of the right to access to the region into the spotlight. The examples of current "hot issues" presented elsewhere on these pages provide an indication of some of the pressing current questions in need of a legal framework and procedures to best provide for their equitable resolution.

From the village of Alluitsup Paa in South Greenland.

From the village of Alluitsup Paa in South Greenland.

They may however be just the "tip of the iceberg", so one may just as well prepare for a considerable increase in potential conflicts, and start thinking of potential counter measures. But what is most disturbing is the fact that the current discourse seldom makes reference to the population currently residing in the Arctic. In many international settings where the consequences of changes in the Arctic are discussed, the concept of "Terra Nullius" still seems to be applied.

Antarctic Treaties

Two international treaties exist which could be considered as the starting points for the debate. The Antarctic Treaty, which was signed on December 1, 1959 by the 12 countries which were active in Antarctica during the International Geophysical Year 1957-58, when more than 50 Antarctic research stations were established across Antarctica. Secondly, we have the Svalbard Treaty which was signed in Paris on February 9, 1920.

The Antarctic Treaty encompasses all land and ice shelves south of the southern 60th parallel, and the treaty has now been signed by 46 countries. The overall goal of the treaty was to set aside Antarctica as a 'scientific preserve', to establish freedom of scientific investigation, and at the same time ban military activities on the continent. Besides emphasizing Antarctic as basis for research activities, article 1 of the treaty stresses the need to use Antarctica for peaceful purposes only, prohibiting military activities, while article 4 states that the treaty does not recognize, dispute, or establish territorial sovereignty claims, just as it is emphasized that no new claims would be asserted as long as the treaty is in force.

The majority of Antarctica is claimed by one or more countries, but most countries do not explicitly recognize those claims. Today there are 46 treaty member nations with 28 consultative and 18 acceding members.

The consultative – and thereby voting - members include the seven nations that claim portions of Antarctica as national territory, while the remaining 21 non-claimant nations either do not recognize the claims of others, or have not expressed their positions.

These claims, however, have not thus far led to conflicting situations which have been interpreted as violations of the original ideas behind the treaty to such a degree that it has called for the with-drawal of members.

First and foremost, the ban on military activities seems thus far to have prevented both nuclear weapons and "star wars" installations being sited on the continent.

The Svalbard Treaty

The Svalbard Treaty concerns the Archipelago of Spitsbergen and Björnö, and is based on recognition of the sovereignty of Norway over the Archi-pelago, while at the same time ensuring that these territories should be provided with an equitable regime which would ensure their development and peaceful utilisation.

The original signatories include Australia, Canada, Denmark, France, Italy, Japan, the Netherlands, Norway, Sweden, the United Kingdom and the United States, while The Soviet Union signed in 1924 and Germany in 1925. Today there are now over 40 signatories. All signatories have been given equal rights to engage in commercial activities, for instance coal mining, as well as equal fishing rights near the Spitsbergen Archipelago.

Norway has sought exclusive rights to the area since 1977. The treaty, however, emphasizes that Norway shall be free to maintain, take or decree suitable measures to ensure the preservation and, if necessary, the re-constitution of the fauna and flora of the regions, as well as the territorial waters. Besides discussing regulation measures in relation to resources, the concept of peaceful utilization has also been debated, as the Treaty allows the signatories to establish and maintain those installations needed in con-nection with communication, weather forecasts etc., installations which may also serve military purposes.

The situation has however never been so heated that it has led to real conflict situations, as the Norwegians have managed to maintain the spirit of the treaty intact.

Proposals and approaches

A draft of an Arctic Treaty was put forward in 1991 by Donat Pharand, Professor Emeritus of International Law, University of Ottawa. He emphasized the idea of an Arctic Region Council aiming at regional cooperation which should lead to the use of the Arctic Region for peaceful purposes. In this connection he stressed seven main points as being important for this:

1) to facilitate regional cooperation generally among its Members;
2) to insure the protection of the environment;
3) to promote the co-ordination of scientific research;
4) to encourage the conservation and appropriate management of living resources;
5) to foster economic and sustainable development;
6) to further the health and social well-being of the indigenous and other inhabitants of the Arctic Region; and
7) to promote the use of the Arctic Region for peaceful purposes.

Oran Young, Professor at the University of California and a long time writer on issues in relation to governance issues and the Arctic, stresses how a substantial number of "soft" agreements, for instance in connection with environmental protection issues etc., already show a legacy of both means and measures available in the existing laws and regulations when it comes to specific problems.

He also underlines the fact that on a more general level there are limi-tations to how existing Arctic governance systems can be structured to minimize problems arising from gaps and overlaps. He therefore raises the question to what extent 'added value' would result from the creation of legally binding international arrange-ments for the Arctic, and what the proper relationship between international institutions and organizations in the Arctic might be.

The Arctic Council

In 1998 the Arctic Council was established as a forum for cooperation in the Arctic. In addition to the eight states with sovereignty over territory in the Arctic - Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States – the Council included a number of organizations representing indigenous people as Permanent Participants. They do not vote, but otherwise participate fully in the work of the organization.

Similarly a number of non-governmental organizations and representatives from other countries are also present at these meetings. They may also participate in project activities arranged by the Council.

The Council has two primary objectives. First, to promote environmental pro-tection which has been a major issue among the Arctic nations since the establishment of the Arctic Environ-mental Protection Strategy in 1991 – aiming at addressing environmental issues affecting the entire region. Secondly, it is to promote sustainable development in the Arctic, emphasizing the special economic circumstances of the indigenous people and other residents of the Arctic in relation to the preservation of the environment.
To these ends, the Council has endorsed a number of cooperative activities to be carried out primarily through a series of subsidiary bodies. The structure of the Council, however, is generally seen more as a forum for exchange of opinions and ideas than as an organization establishing binding agreements and resolving conflicts. This provides for an open and informal forum for the development of project activities relevant for the Arctic residents. At the same time, it limits very much the potential of the organization to establish binding solutions.

The challenge

The suggestions and the legacy therefore leave the Arctic – and any treaties addressing the future of the Arctic - with two major challenges. This is to develop a treaty which will enable the population already living in the Arctic to become active and decisive members of an organisation which will be very influential in respect of their future lives. Also it is to learn from the two treaties mentioned above, stressing the need to use the Arctic for peaceful purposes only.

Rasmus Ole Rasmussen

Senior Research Fellow

Declaration on the Establishment of the Arctic Council.

Donat Pharand: Draft Arctic Treaty: An Arctic Regional Council. University of Ottawa, 1991. Excerpted from the Canadian Institute of International Affairs, National Capital Branch, The Arctic Environment and Canada's International Relations (Ottawa: Canadian Arctic Resources Committee, 1991),pp.AI-A10.

Oran R. Young: The Internationalization of the Circumpolar North: Charting a Course for the 21st Century.

The Antarctic Treaty.

The Svalbard Treaty.