Influence of the Arctic Council upon the formation of a single legal space in the Arctic Region

Shinkaretskaya Galina Georgievna Doctor of Law Chief Scientific Associate, the sector of International Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, g. Moscow, ul. Znamenka, 10 gshink@yandex.ru Other publications by this author

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 Council as the central body of cooperation of the Arctic States. The Arctic Council was established in accordance with the Ottawa Declaration of 1996 as a "high-level forum" to ensure cooperation in the Arctic. His powers include solving common problems of the Arctic, except for issues related to military security. At the center of his powers is the promotion of sustainable development and environmental protection in the Arctic.  Accordingly, the Council coordinates a number of innovative and significant scientific research on emerging problems in the Arctic. Under his auspices, such important projects were developed as the Assessment of the impact on the climate in the Arctic, which was carried out in 2004 ^[1] and influenced the content of subsequent environmental studies in the Arctic, the Assessment of oil and gas reserves in the Arctic (URL: https://www.ourenergypolicy.org/resources/arctic-oil-and-gas / (accessed: 11.07.2021)); Assessment of Arctic maritime navigation (Arctic Marine Shipping Assessment 2009 Report // URL: https://oaarchive.arctic-council.org/handle/11374/54 (accessed: 11.07.2021) ). Thanks to these studies, the Arctic Council was able to get a clearer and more comprehensive understanding of the problems of the Arctic and ways to solve them.

         The Arctic Council has an informal status. It is based not on an international treaty, but on a declaration – that is, a soft law document. The Council is not endowed with international legal personality, is not authorized to conclude international treaties, and its decisions taken by consensus are not legally binding. Like any soft law document, the Council can formulate standards of conduct, but cannot make them binding on Member States ^{[2, p. 9]}.

         Nevertheless, the Arctic Council is gradually beginning to play a more authoritative role, according to some authors, under the pressure of circumstances forcing to solve serious problems caused by climate warming ^[3]. In 2011, at the ministerial meeting in Nuuk (Greenland), the Arctic Council established a permanent secretariat, which will be located in Troms?, Norway (Arctic Council, Nuuk Declaration, Seventh Ministerial Meeting, at 2 (May 12, 2011)// URL: http://arcticcouncil.npolar.no/accms/export/sites/default/en/meetings/2011-nuuk-ministerial/docs/Nuuk_Declaration_ FINAL.pdf. (accessed: 11.07.2021)). Some authors consider this to be the beginning of the transformation of the Arctic Council from a forum for negotiations into a truly international organization ^[4]. However, in addition to the fact that the Secretariat was also established on the basis of a soft law document, it is endowed with a relatively modest mandate and functions mainly of an administrative nature.

         Nevertheless, the Arctic Council has become something of a coordinating center for the development of the Arctic law and order. It serves as a place for negotiations, clarifying the positions of individual States on specific issues and establishing possible ways to solve problems. With his assistance, some treaties were concluded by the Arctic States. So, in 2011, the deputies adopted a search and rescue agreement (Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (May 12, 2011) // URL: https://oaarchive.arctic-council.org/bitstream/handle/11374/531/Arctic_SAR_Agreement_EN_FINAL_for_signature_21-Apr-2011%20%281%29.pdf?sequence=1&isAllowed=y (accessed: 11.07.2021)), which became the first legally binding document concluded under the auspices of the Arctic Council. The second was the agreement on readiness to combat oil spills (Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 2013.Website of the Arctic Council // URL:  https://oaarchive.arctic-council.org/handle/11374/529 (accessed: 11.07.2021)). It should also be noted the Agreement on Scientific Cooperation (Agreement on Enhancing International Arctic Scientific Cooperation, 2017 Arctic Council website // URL:  https://oaarchive.arctic-council.org/handle/11374/529 (accessed: 11.07.2021)).

The Arctic Council consists of several separate groups: members, permanent participants, observers, special observers, the Chairman of the Council (which changes between members every 2 years), the secretariat and six working groups (ARCTIC COUNCIL, Working Groups, // URL:   http://www.arctic-council.org/index.php/en/about-us/working-groups. (accessed: 11.07.2021)). Full membership is limited to eight countries whose territory is located north of the Arctic Circle – Denmark, Iceland, Canada, Norway, Russia, the USA, Finland and Sweden. Permanent participants are groups representing communities of indigenous peoples of the Arctic, formed on an ethnic basis, regardless of the state of residence. They are not given the right to a decisive vote, but they can participate in all negotiations and consultations before forming decisions. This structure of the international body is unique; indigenous groups are given a more significant role than is usually the case at other UN meetings and conferences or multilateral meetings and conferences.

Observer status, in accordance with the Ottawa Declaration, is open to non-Arctic States and organizations and is granted by the Council.  From the very beginning, Germany, the Netherlands, Poland and the United Kingdom received observer status, joined by France in 2000 and Spain in 2006. In 2007, China applied for permanent observer status, prompting a new wave of interest from non-Arctic States to join the Council. China itself was denied observer status three times at ministerial conferences in 2007, 2009 and 2011, on the grounds that this country is not near-Arctic. Finally, this status was awarded to China in 2013.  By 2009, applications had been submitted by Italy, South Korea and the European Union (EU), soon followed by India, Japan and Singapore, as well as many non-governmental organizations.

Disagreements arose among the Arctic States regarding the admission of new observers: the Nordic countries were determined to accept any applicant who presented reasonable arguments, while Canada and Russia feared that a significantly increased contingent of observers would overwhelm current members, especially indigenous groups. As a result, a deadlock has arisen, since consensus is required for the Council to take decisions. The issue of observers cannot be resolved straightforwardly, since permanent observers are undoubtedly granted a certain degree of influence in the Arctic Council. Unlike special observers, permanent observers are automatically invited to all Council meetings. They can use their knowledge and money to influence decision-making, especially in the six working groups. They can also propose projects and participate in their financing, although the amount of funding they offer cannot exceed the amount of funding provided by the Arctic States. Observers may also submit written documents at meetings at the ministerial level, but they are not authorized to speak at Council meetings and do not have the right to vote.

Thus, the decisive decision-making powers belong entirely to the Arctic Eight, as well as the right to discuss the Council's policy and lead the six working groups of the Council.

Taking into account the great interest of non-Arctic States and their ability to provide qualified personnel, as well as the research carried out by the Council, in 2011 the Council published an official guide for observers and adopted a new set of criteria for the admission of observers to the Council ^[5]. The adopted documents served two purposes: to confirm the primacy of the Arctic Eight in the Council, thereby assuring Russia and Canada that the expansion of the Council would not lead to an undue weakening of the universally recognized rights of the Arctic States, and to strengthen the rights of permanent members of the Council.

According to the new criteria, observers should recognize the sovereignty, sovereign rights and jurisdiction of the Arctic States in the Arctic, and should also recognize that the legal framework for activities in the Arctic Ocean is diverse and includes, in particular, the UN Convention on the Law of the Sea and that this legal framework provides a solid foundation for responsible management of this ocean. Observers should also have the political will and financial capacity to contribute to the work of the Council, as well as they should have the competencies and knowledge necessary for the work of the Arctic Council.

These conditions seem somewhat controversial and in some provisions contradict the Ottawa Declaration, for example, in the fact that the Declaration says briefly: "observers must contribute to the work of the Council. However, the non-Arctic States rather challenge the provision on the special rights of the Arctic States. For example, in 2010, a Chinese author claimed that "The Arctic belongs to all the people of the world, and no nation has power over it" (Gordon G. Chang, China's Arctic Play, DIPLOMAT (Mar. 9, 2010) // URL: http://thediplomat.com/2010/03 / chinas-arctic-play/ (date addresses: 11.07.2021)). Officially, however, the representative of China confirmed the recognition of the sovereignty, sovereign rights and jurisdiction of the Arctic States in the Arctic, as well as their decision-making powers in the Council (Speech by Chinese Ambassador to Canada Lan Lichin during the conference during the Swedish chairmanship of the Arctic Council on November 6, 2012. // URL: http://www.arctic with ouncil.org/images/PDF _attachments/OBSERV_DMM_2012/ACOBSDMMSE 01_Stockholm_2012_Observer _Meeting_Statement_Ambassador_Lan_Lijun_China.pdf. (accessed: 07/11/2021)).  This position was confirmed by Chinese Foreign Ministry Spokesman Hong Lei in 2013, after China received permanent observer status in the Council (Chen Zhi, Xinhua Insight: Arctic Council Observer Status Guarantees China's Legitimate Rights // XINHUANET (May 16, 2013, 9:21 AM) // URL: http://news.xinhuanet.com/english/indepth/2013-05/16/c_132387742 .htm(accessed: 07/11/2021)).

After the publication of the recommendations adopted by the Council regarding observer status, consideration of applications was postponed for some time, but as the ice in the Arctic Ocean melted, commercial interest in it increased and non-Arctic States insisted on granting them certain rights. This undermined the image of the Arctic Council and its international legitimacy, so in 2013 the Council approved the granting of observer status to six states: India, Italy, China, Singapore, South Korea and Japan (Arctic Council Secretariat, Kiruna Declaration, Eighth Ministerial Meeting, at 6 (May 15, 2013), ) // URL: https://oaarchive.arctic-council.org/bitstream/handle/11374/93/MM08_Kiruna_Declaration_final_formatted. pdf?sequence=5&isAllowed=y hereafter(accessed: 07/11/2021)).

The application of the European Union was postponed due to the objections of Canada, which had a dispute with the EU about the legality of the European Union's ban on the import of Arctic seal meat (NikolajNielsen, ChinaBeatsEUtoArcticCouncilMembership, EUOBSERVER (May 16, 2013). // URL: https://euobserver.com/eu-china/120138 .) (accessed: 11.07.2021)).

Canada's use of its veto shows several facts. Firstly, seal meat, as in previous years, is still of great importance to local indigenous peoples, and Canada, by vetoing, has demonstrated that it protects the rights of indigenous peoples, that is, the status of the Arctic state creates rights and obligations in the field of human rights protection; secondly, only the Arctic state It has rights and obligations in relation to indigenous peoples, and therefore the world community should recognize the special interests and rights of such a State.

         Subsequently, the dispute between Canada and the EU was settled, Canada withdrew its objections and the EU became an observer in the Arctic Council.

In general, the expansion of the Arctic Council through the admission of new permanent observers has mainly symbolic consequences. Although such an expansion means additional funding for Arctic projects, the participation of new competent personnel in these projects, and the involvement of new actors in solving such an important problem for the Arctic as climate warming, such an expansion primarily means, on the one hand, recognition by Arctic States of the rights and interests of non–Arctic states, and on the other hand, recognition by non-Arctic States the existing combined law and order in the Arctic.

It should also be noted that the events surrounding the admission of new permanent observers have shown that the Arctic Council is recognized by the international community as a leading and responsible organizer of law and order in the Arctic Ocean and even represents the interests of not only Arctic, but also non-Arctic states. The Danish Foreign Minister said in this regard that the expansion of the Arctic Council "reflects the fact that in many countries outside the Arctic zone there are also legitimate interests in its development" (Chris Irvine, China Granted Permanent Observer Status at the Arctic Council. TELEGRAPH (May 15, 2013)//URL:http://www.telegraph.co.uk/news/worldnews/asia/china/10060624/China-granted-permanent-observerstatus-at-Arctic-Council.html( date of application: 11.07.2021)).

Now all five permanent members of the UN Security Council – Russia, China, France, the United Kingdom and the United States are members or observers in the Council. Such broad representation creates a new level of legitimization of the rule of law in the Arctic.

On the other hand, the admission of non-Arctic States legitimizes their presence. First of all, Chinese scientists began to emphasize the legitimacy of asserting the interests of this country.

Qu Xing, head of the China Institute of International Studies, said that “the granting of observer status shows that China's activities and its interests in the region have been recognized by all member states” (ChenZhi, XinhuaInsight: ArcticCouncilObserverStatusGuaranteesChina’sLegitimateRights // XINHUANET (May 16, 2013, 9:21 AM) // URL: http://news.xinhuanet.com/english/indepth/2013-05/16/c_132387742.htm(accessed: 07/11/2021)).

Reforming Arctic governance: globalization of cooperation in the region. Despite the symbolic consequences of the decision of the Arctic Council, the extension for the admission of new observers - non-Arctic states remain in an unfavorable position within the framework of the Arctic legal framework. Currently, the vast majority of hydrocarbon reserves in the Arctic and both currently available transarctic shipping routes are subject to the control of the coastal State in accordance with UNCLOS. Circumpolar subjects also dominate in regional governance, since the Arctic Council significantly restricts the participation rights of non-Arctic states.

Non-Arctic observers are not only denied the right to speak and vote, but are also prohibited from having their financial contributions exceed those of the Arctic Eight. Special observers have even fewer rights, requiring permission to participate in all Council meetings.

As the Arctic region globalizes, these structural differences threaten the continued viability of the Arctic Council in two main ways. First, the limited participation of non-Arctic States will hinder the overall effectiveness of the Arctic Council. Limiting the financial contributions of observers, for example, may lead to the fact that a number of Council projects may be underfunded, especially given the fact that funding from Member States is quite unreliable. In fact, within the framework of the voluntary funding system of the Council, Member States can simply refuse to finance research projects that are already being implemented. In this case, the obligation not to exceed the amount of project financing by non-Arctic countries and the amount of funds contributed by Arctic states may lead to the impossibility of completing projects for economic reasons.  Given the risk of wasted time and resources, this rule may eventually prevent non-Arctic States from funding Council projects or even combining their own scientific initiatives under its auspices. For this reason, the Arctic Council currently has limited capacity to conduct large-scale environmental research and develop policy guidelines.

The Arctic Council is an informal forum for cooperation between various state and public organizations and groups, and its key component of success is the promotion of dialogue between them. Limiting this dialogue to a circle of regional participants, even taking into account the globalization of the region itself, will inevitably limit the breadth and diversity of ideas exchanged by various stakeholders within the Council, which, in turn, may limit the Council's ability to generate creative and effective solutions to problems arising in the Arctic region.

There is also a possibility that limited opportunities for participation in the Arctic Council may encourage non-Arctic states to search for alternative ways of regional cooperation, which in no way will contribute to the formation of a single legal space in the region. For example, non-Arctic States may consider bilateral relations with Arctic States as an excellent means of achieving regional goals. So, in recent years, a similar strategy has been implemented by China, which has individually "courted" the Arctic Eight in order to position itself as an indispensable Arctic player. Similarly, non-Arctic States may find participation in various alternative forums more useful and promising than participation in the Arctic Council. And such platforms exist. Thus, one potential alternative is the non–profit Arctic Circle, an inclusive forum that promotes dialogue between global stakeholders on the topic of "rapid changes in the Arctic". Already many states, disappointed by their inability to speak at the Arctic Council, have begun to focus their attention on this site.

In general, it can be concluded that the current regional model of Arctic governance is no longer adequate to meet the challenges of Arctic globalization. As the region develops, non-Arctic States are fighting for the right to vote in the development of rules and regulations governing this development. The inability to meaningfully engage these States threatens the viability of the Arctic Council both in terms of its institutional effectiveness and in terms of its regional superiority. It seems appropriate to carry out structural reforms within the framework of the Arctic Council, designed to ensure a greater degree of consideration of the interests of non-Arctic states in the region, as well as to expand cooperation with alternative Arctic forums that provide remote subjects with significant rights to participate. And first of all, it is advisable to lift the existing restrictions on the financing of regional scientific programs by non-Arctic states, including in the field of environmental protection and combating climate change. Another measure may be to grant observers limited rights to speak at ministerial meetings, giving them the opportunity to make oral statements, at the discretion of the Chairman, after the speech of representatives of the Arctic Eight countries and permanent members of the Council. This will facilitate a broader exchange of ideas, which will allow for a more active dialogue between the participants on the problems arising in the Arctic region.

However, on the other hand, the expansion of participation in the work of the Council of Non-Arctic States raises concerns not only of the Russian Federation, but also of Canada, which is associated with the fact that increased external influence may lead to a weakening of the status in the Council of Arctic States. But in a situation where observers from non-Arctic states do not have the right to vote, it guarantees their secondary role in the Council, while the powers to make final decisions will remain with the states of the Arctic Eight. The involvement of non-Arctic States in the Arctic Council can increase the effectiveness of its activities in the field of sustainable development and environmental protection, as well as their participation in its activities will ensure their commitment to the results achieved within the Council and will help position the Council as the most logical and appropriate place for the formation of international coordination in the Arctic.

We emphasize once again that in addition to structural reforms, the Arctic Council should intensify its interaction and coordination with alternative regional forums. As global inclusive forums, such as the Arctic Circle, become increasingly important, the Council's influence will decrease, which will lead to the decentralization of policy-making in the Arctic. Since the Arctic Eight does not necessarily play a dominant role in such forums, Arctic policy may eventually be developed without the consent of the Arctic States and even in spite of them. Consequently, disparate regional guidelines and standards may be disseminated, creating confusion and damaging the effectiveness of activities within the Arctic Council. Therefore, the Council should take the lead in engaging these forums to coordinate a coherent regulatory regime in the region. Furthermore, since non-Arctic States can exert significant influence in these alternative forums, coordination of activities will ultimately ensure that their preferences are represented in a common Arctic framework.

In conclusion, I would like to emphasize once again that over the past two decades, the activities of both Arctic and non-Arctic States in the Arctic region have significantly intensified in many areas, including in the field of mining and the functioning of new commercial shipping routes.

Since, due to the processes of global warming on the planet, the Arctic is no longer a strictly isolated region, as it was before, circumpolar subjects should take steps to adapt to the new challenges created by the processes of globalization and increase the interest of non-Arctic countries in activities in the region. A more inclusive international approach to Arctic governance is now needed. At the same time, more active involvement of non-Arctic states in decision-making processes within the framework of the Arctic Council will, on the one hand, preserve the dominant role of the Arctic Eight countries in the Arctic, and on the other, taking into account the interaction with non-Arctic states on existing alternative discussion platforms, ensure the unification of the measures being developed, including the formation of a unified a legal space that allows the most effective solution to the problems of sustainable development of the region and the protection of its environment in the conditions of intensification of economic activity.   At the same time, in the course of reforming the structure of regional interaction, non-Arctic states should not be elevated to the same status as regional entities, given their inherent detachment from local Arctic problems and opportunities.