Relevant trends in the formation of a single legal space in the Arctic region in the sphere of environmental protection and conservation of biodiversity of the region

Rednikova Tatiana Vladimirovna PhD in Law Senior Scientific Associate, Department of Environmental, Land an Agrarian Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 trednikova@gmail.com Other publications by this author

The research was carried out with the financial support of the RFBR in the framework of scientific project No. 20-011-00401

The Arctic region, in addition to its resource and transport potential, has another indisputable value for all mankind. Today, the Arctic is perceived by public opinion as a reserve ecological space of the whole world ^{[1, p. 65]}. Large reserves of fresh water are concentrated in the region, and the degree of purity of atmospheric air, despite the pollution carried by air masses from other territories of the globe, still meets the highest standards. However, along with this, there is a significant number of objects of accumulated environmental damage, the problem of eliminating which is facing most Arctic countries. The circumpolar location of the region and the unity of its natural environment necessitates the formation of unified approaches to its protection in all states of the region, which is not an easy task due to differences in the legal systems of the Arctic Eight countries. In addition, an increasing number of non-Arctic countries declare their claims to the possibility of carrying out scientific, economic and other activities in the region, which further determines the need to create a unified legal regime in the region regarding the protection of vulnerable Arctic nature.

The climate changes taking place on the planet directly affect the environment in the Arctic. Thus, with the melting of ice and the reduction of the permafrost zone, the boundaries of typical Arctic ecosystems are changing, the landscapes of the region are changing, as well as the habitats of Arctic flora and fauna species. Changes in habitats and a decrease in the number of commercial species of Arctic animals directly affect the possibility of traditional nature management by indigenous peoples living in the region.

Another problematic aspect threatening the stable state of Arctic ecosystems is the penetration of alien species into them as a result of natural migration processes associated with global warming, intentional or unintentional introduction by humans. Sensitive Arctic ecosystems are also subject to negative anthropogenic impact or even destruction as a result of pollution or ecologically ill-conceived spatial development ^{[3, p. 234]}.

Despite the negative changes in the state of the environment and nature of the Arctic that have occurred in recent decades, the region still has a significant and unique potential for the resources of the animal and plant world, the conservation of which is one of the priorities. Its effective solution directly affects the possibility of sustainable development of the entire planet and affects the interests not only of the Arctic countries, but also of states located at a distance of many thousands of kilometers from the region. As an example of the biological connection of the Arctic with non-Arctic territories, it is possible to cite species of migratory birds nesting in the region, which migrate to warmer regions for the winter period (for example, peregrine falcon, sea sandman, red-throated loon, snow goose, etc.). In order to preserve the population size, migrating species need a proper degree of protection both in their nesting sites in the Arctic region, and in wintering grounds.

With regard to the living resources of the Arctic, the formation of unified approaches in the legislation of the Arctic states to their protection and use should be carried out in a complex in several directions.

Thus, in order to preserve the unique Arctic ecosystems, it is necessary to develop a regional network of specially protected areas, and the protection regime of the same species in different states should ensure the preservation of the number of species at a level sufficient to maintain their population and interaction within ecosystems with other species, including those participating in the same food chain. It is also necessary to create effective corridors to ensure the migration of species between different specially protected natural areas. It should be noted that initially, in the historical perspective, the process of creating protected areas began when there were obvious threats to ecosystems and species. For example, in Svalbard, where today protected areas occupy more than 50% of the archipelago's area, a network of protected areas began to form only after the almost complete targeted destruction of marine mammal populations and the transformation of coastal areas ^{[4, p. 15]}. To date, according to the State Report on the State and Environmental Protection in the Russian Federation in 2020, as a result of the improvement of the management system of protected areas in our country from 2014 to 2020, the total area of protected areas increased by 37.9 million hectares. ^[5]

According to the information of the Ministry of Natural Resources of the Russian Federation, there are currently 40 protected areas of federal significance in the Russian Arctic (14 state reserves, 10 national parks, 8 state nature reserves, 4 natural monuments, 4 arboretum parks and botanical gardens;), and the total area of protected areas in the region exceeded 38 million hectares (22.7 million hectares is land territory, 16.2 million ha – sea area). With the participation of the Ministry of Natural Resources of Russia, the program "Conservation of biological diversity and development of ecotourism" is currently being implemented in the Arctic zone of the Russian Federation.  Currently, the Ministry is preparing a new strategy for the development of the protected areas system, the action plan for the implementation of which will include a plan for the development of the geographical network of protected areas of the Arctic zone, as well as proposals prepared on the basis of scientific analysis to identify priority areas for biodiversity protection and monitoring in the seas of the Russian Arctic for the creation of Arctic protected areas in key areas for biodiversity conservation Russian Arctic regions (See: URL: https://neftegaz.ru/news/ecology/714955-v-rossiyskoy-arktike-teper-bolee-38-mln-ga-zemli-imeet-status-osobo-okhranyaemykh-prirodnykh-territo / (accessed: 12/21/2021)).

Among the tasks of developing a regional network of protected areas, water areas and coastal territorial-aquatic complexes is to ensure its landscape-ecological representativeness, creating on this basis a landscape-ecological framework of the Arctic zone embedded in the all-Russian and pan-European nature protection networks, with the inclusion of tundra forests and indigenous old-age forests in its structure. With regard to marine areas, it is necessary to ensure compliance with the established ecologically and economically determined spatial relationships between economically used water areas and protected areas that ensure the preservation of both natural diversity and an acceptable ecological situation within the Arctic marine space. At the same time, the spatial development of marine nature management industries and the corresponding infrastructure should be carried out taking into account the formation of marine and coastal transport and logistics communications, coastal settlement systems, the ecological capacity of marine landscapes and the tasks of preserving natural diversity.

In the conditions of a constant increase in the commercial and man-made load on the Arctic nature, in order to reduce it in the region, it is proposed to implement the spatial development of nature management industries while creating their optimal infrastructure in the field of transport and logistics communications, ensuring rational land use, including in reindeer husbandry. In the process of nature management in the region, considerable attention should also be paid to the problems of preserving natural diversity within ecosystems and the ecological capacity of landscapes, as well as cultural heritage associated with nature management ^{[6, p. 109]}.

The ecological and legal literature notes that any decision and action on the use of ecosystems or individual natural objects in ecosystems should be based on the best scientific knowledge of the laws of nature, the processes of its change and evolution, as well as forecasts of the impact of such use on the balance of the system, and not lead to its destruction. At the same time, the ecosystem approach should manifest itself in the establishment of both general and special approaches to the use of natural resources of each specific ecosystem based on the priority of objective laws of nature over the social and economic laws of society ^{[3, p. 235]}. However, at present, the ecosystem approach does not have a sufficient degree of legal specification as in the norms of international and interstate treaties, as well as the national legislation of the Arctic States concerning environmental protection problems, which greatly complicates its implementation in practice.

A separate problem of preserving the natural environment of the Arctic region in the legislation of all states is the provision of traditional types of nature management of indigenous peoples living on its territory. The legislation, in particular, provides for the existence of appropriate exceptions for the extraction of protected species of Arctic animals, the fishing of which is prohibited for other subjects of legal relations. For example, the Law on the Protection of Marine Mammals adopted in the USA in 1972, aimed at protecting threatened populations of certain marine species, contains a ban on reducing their numbers below the limit affecting the stability of the ecosystems of which they are elements. The number of animals of these species should not decrease below certain limits of the mark, after which they cease to be an important functioning element of the ecosystem of which they are a part. The law provides for the adoption of measures to protect their main habitats and reproduction from negative anthropogenic impact. This legal act introduces a ban on the extraction of protected species of marine mammals by US citizens, with the exception of cases of traditional fishing of the indigenous peoples of Alaska for the purposes of subsistence and existence. The law also contains a list of other permitted purposes, in particular, the creation and (or) sale in interstate trade of handicrafts, handicrafts and clothing. At the same time, any edible part of the extracted marine mammals can be sold in villages or towns in Alaska ^{[7, p. 107]}.

The sustainable existence of the indigenous peoples of the Arctic and the preservation of traditional types of nature management carried out in accordance with the legislation of the Arctic states is to a large extent the key to the rational use of the natural resources of the region. The preservation of the ethnocultural diversity of indigenous peoples, historical household customs and crafts, and traditional living conditions is also the basis for the development of Arctic tourism. In recent years, due to the processes of global warming, the tourist flow in the region has significantly increased, as well as the anthropogenic load on the ecosystems of the region associated with it has increased proportionally.

Arctic tourism in countries such as the USA, Canada, Greenland, Iceland, Norway is developing with state support and brings annual income in the millions of dollars. In Greenland, for example, over the past 20 years there has been an increase in the annual tourist flow by 18 times, and the number of tourists coming to the island exceeds the number of Inuit and Danes permanently residing on it. Arctic natural landscapes and objects, as well as habitats and breeding grounds of Arctic animals are attractive from a tourist point of view. The growth of tourist traffic leads, for example, to such negative phenomena as the destruction of vegetation and soil erosion on walking routes, environmental pollution by transport transporting tourists, noise impact on animal habitats, causing them concern. The special sensitivity, vulnerability and low ability to self-repair the natural environment of the region, taking into account the growing anthropogenic load from the development of Arctic tourism, necessitate scientific support of programs for the development of Arctic tourism, providing for the assessment of the sustainability of landscapes and the implementation of measures to protect them ^{[8, p. 92]}. At the legislative level, taking into account the results of the study of the size of the permissible anthropogenic load from tourism activities both on the ecosystems of the Arctic and on the places of residence of indigenous peoples, it is necessary to establish appropriate restrictions and quotas, as well as to constantly monitor their compliance.  

Taking into account the fact that the issues of conservation of biological species and ecosystems in the Arctic region do not have so-called national specifics, the most optimal and effective model for the development of legal regulation in this area could be a regional interstate agreement providing for the implementation of unified scientifically based requirements and restrictions in the field of protection of various components of the Arctic environment, as well as ensuring the sustainable existence of the indigenous peoples of the region, in the national legislation of the Arctic states. Such an act could also define the conditions to be observed in this regard by subjects of non-Arctic States engaged in scientific, economic and other activities in the region.

Another direction of creating a unified legal regime in the Arctic is the creation of a unified global environmental monitoring system in the region, since regional environmental and technological risks have significantly increased under the influence of global warming and the increase in anthropogenic pressure on the Arctic environment. The development of a scientifically sound and effective set of measures to counteract increased risks requires long-term environmental observations associated with the collection of large amounts of data that make it possible to promptly assess not only the current situation, but also the risks of emergencies and natural disasters ^{[9, p. 83]}. Ensuring prompt interstate information about emerging threats of a regional and global nature will make it possible to take timely measures to inform the population of the region about impending threats and to prevent or minimize their consequences. Of particular concern is the process of permafrost melting provoked by the influence of global warming, which, as practice shows, can significantly increase the risk of man-made disasters at infrastructure and resource-producing facilities in the region, the foundations of which are designed and erected taking into account their location in permafrost. Within the framework of this program in the Russian Federation, it is planned to amend the federal laws "On Environmental Protection" and "On Hydrometeorological Service", providing for the creation of an all-Russian cryolithozone monitoring system. Currently, such monitoring is carried out in our country in Svalbard, Franz Josef Land and Severnaya Zemlya. The creation of this monitoring system in the country is planned to be completed in 2024. (See: URL: https://www.mnr.gov.ru/press/news/k_2024_godu_gosudarstvennaya_sistema_monitoringa_mnogoletney_merzloty_nakroet_vsyu_territoriyu_kriol / (accessed: 12/20/2021)).

The problems raised in this study can be solved much more effectively by coordinating and consolidating the efforts of the Arctic countries to adopt common measures and requirements in the field of environmental protection and conservation of biological diversity in the Arctic, which is not such an easy task, taking into account the current state of international and interstate relations of the countries of the region, their different priorities and methods of ensuring their own geopolitical interests. Currently, the priorities of the state policy of the Arctic countries have both similar features and significant differences. However, the goals of environmental protection and preservation of the unique ecosystems and components of the biological diversity of the region are present to varying degrees in the political documents of all Arctic states, which gives some hope for the possibility of reaching a certain consensus in solving this problem both at the interstate and international level.

For example, according to the Fundamentals of the State Policy in the Field of Environmental Development of the Russian Federation for the period up to 2030" (approved by the President of the Russian Federation on 30.04.2012), the strategic goal of the state policy in the field of environmental development is to solve socio-economic problems that ensure environmentally oriented economic growth, preservation of a favorable environment, biological diversity and natural resources to meet the needs of the current and future generations, the realization of everyone's right to a favorable environment, strengthening the rule of law in the field of environmental protection and ensuring environmental safety. In modern Arctic strategies of other Arctic states, emphasis is placed on rational use of natural resources with international participation, while one of the important roles is given to environmental management in the region based on the principles of biodiversity conservation, taking into account the values of indigenous peoples' culture, environmentally balanced, safe, consistent with the norms of international law, the use of shelf energy resources. According to the provisions of foreign strategies, state authorities, local self-government bodies, corporate, non-profit and other structures of civil society should be involved in the process of preserving the natural environment of the Arctic. In general, the main areas of activity in the Arctic in foreign strategies are designated as the implementation of economic activities in a sustainable manner, improving the living conditions of the indigenous population, monitoring climate change and environmental protection ^{[10, p. 12]}.

The modern international legal regime in the Arctic region is formed by international treaties of various levels (universal, regional, sub-regional), while universal acts in the field of maritime law and environmental protection do not always take due account of regional specifics ^{[2, p. 136]}. Most of the regional problems of environmental protection and biodiversity conservation in the Arctic are solved through regional and interstate agreements, to which not all Arctic countries are often parties, which makes it difficult to form a unified legal regime in this area. Taking into account the chairmanship of the Russian Federation in the Arctic Council in 2021-2023, it seems appropriate to intensify the discussion of regional environmental problems and ways to solve them, as well as the possible content of international agreements that can be concluded to create a unified legal regime for the protection of the Arctic environment. Taking into account the scientific uncertainty of the degree of danger of many environmental problems in the region, including the processes of global warming, the development of such agreements should be based on compliance with the principle of precaution laid down in international environmental law. As I.O. Krasnova rightly notes, "in the science of international environmental law, the justification of the need for legal regulation in areas that do not have sufficient and convincing scientific evidence of the causes of a particular environmental problem, special legal methods of legal response have been developed. They include, in particular, the creation of scientific expert structures, the prior informed consent of States for an environmental impact with scientific uncertainty, environmental impact assessment and monitoring, special measures of legal liability for violation of the requirements provided for solving an environmental problem" ^{[3, p. 235]}.

In conclusion, it should be noted that the current state of interstate relations between Russia and Western countries, including an expanded regime of mutual sanctions and restrictions, significantly complicates the negotiation process on the most pressing issues of regional and global politics. In some cases, the goals of environmental protection of individual states cover the goals of achieving economic superiority over others, which is typical for different regions of the planet, in particular, similar processes are taking place at the present stage in Antarctica. However, I would like to hope that the problems of environmental protection of the Arctic zone, on the solution of which, due to its circumpolar position and a single natural space, the sustainable development of the Arctic Eight states primarily depends, will serve as a basis for strengthening cooperation and making coordinated decisions, including at the level of legislation and the formation of a single legal space in the region in the specified area.