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Author: Sabrina Hasan

Abstract

Arctic Ocean (AO) is opening the door for commercial activities due to the opening of previously inaccessible areas which has attracted the concern of the protection of the Arctic marine biodiversity through the effective implementation of legally binding instruments that will be influential to the implementation of scientific cooperation between Arctic and Non-Arctic States. Moreover, diplomatic issues among the Arctic States along with the gaps in the laws and regulations regarding Arctic Ocean governance have raised the concern to come up with an effective legal regime for the conservation and sustainable use of Arctic marine biodiversity. Though there are some applicable legal instruments in existence, the rapid changes in the AO and increased human activities have called for a stronger one. Now the question is whether that regime shall be within national or regional framework and how the upcoming internationally legally binding instrument for the conservation and sustainable use of biodiversity beyond national jurisdiction (BBNJ Treaty) can be an influential and effective instrument to promote the conservation and sustainable use of Arctic marine biodiversity which are beyond national jurisdiction. Therefore, the paper highlights the existing issues concerning Arctic marine biodiversity of the areas beyond national jurisdiction (ABNJ) and analyses these concerns regarding how the conservation and sustainable use of Arctic marine biodiversity can be promoted under the BBNJ treaty.

In: The Yearbook of Polar Law Online

Abstract

This study examines how recent changes in Russia’s legal regulations affected shipping via the Northern Sea Route. The paper discusses whether these regulations are helpful for making the NSR a popular international transport corridor or, on the contrary, may lead to its isolation and retaining its status of Russia’s national seaway? This study also reviews Russian legal and practical measures to implement the International Maritime Organization’s Polar Code. The author concludes that despite some legal inconsistencies, the lack of a proper infrastructure and residual environmental problems, the NSR will remain an important priority for the Russian future strategy in the Arctic region. The NSR is viewed by Moscow as an effective instrument to develop the Russian Arctic both domestically and internationally. However, Moscow still faces a dilemma: On the one hand, it wants to keep its control over the NSR and support Russian shipbuilding industry and shipping companies. On the other hand, the Kremlin is willing to open up this passage for international cooperation and integrate it to the global transportation system.

In: The Yearbook of Polar Law Online

Abstract

Successful collaboration between the Indigenous peoples and the sovereign states of Arctic North America has helped to stabilize the Arctic region, fostering meaningful Indigenous participation in the governance of their homeland through the introduction of new institutions of self-governance at the municipal, tribal and territorial levels, and successful diplomatic collaborations at the international level through the Arctic Council. Undergirding each of these pillars of Indigenous participation in Arctic governance is a mutuality of commitment to the principle of co-management of the Arctic that has united Indigenous peoples and the state across Arctic North America. Co-management has become so widely and reciprocally embraced by tribal peoples and states alike that it now provides a stable foundation bridging the Indigenous, transnational world with the Westphalian world of states and statecraft. This stability and the reciprocal and over time increasingly balanced relationship between sovereign states and Indigenous stakeholders has yielded a widely recognized spirit of international collaboration often referred to as Arctic exceptionalism. Along the way, co-management has transformed into both a mechanism of, and powerful paradigm for, trans-Arctic diplomacy that fosters not only greater domestic unity between tribe and state, but between states as well, catapulting mechanisms designed for domestic resource management to the international stage. Arctic exceptionalism has come under recent strain from the renewal of great power competition in the Arctic. As Arctic competition between states rises, the multitude of co-management systems and the multi-level, inter-governmental and inter-organizational relationships they have nurtured across the region can help to neutralize new threats from intensifying inter-state tensions.

In: The Yearbook of Polar Law Online

Abstract

This paper examines the legal concept of occupation of territory and its historic application to the Polar regions, to disclose the fallacies at the heart of the colonial projects at both Poles. It also considers how the increasing recognition of non-use value disrupts positivist accounts of occupation.

The colonisation of populated lands was justified by European theories of property that insisted that effective occupation required both a psychological and a physical element. The psychological element of occupation requires the sovereign to engage in a legal fiction that it controls the land and exercises dominion over it but this conceit is not shared by Arctic Indigenous Peoples. The physical element of occupation according to the positivist account requires an owner or sovereign to transform the land in some physical manner. The self-serving European legal theories construed the Indigenous relationship with land as a non-relationship and declared it retrospectively terra nullius. According to their own laws, the colonisers declared their own sovereign authority over Indigenous territories, notwithstanding the existing civilisations.

However, in the Polar regions, the colonisers themselves did very little in the way of physical occupation or transformation of the vast majority of the lands that they claimed. Colonisers demonstrated occupation through the naming of places, mapping, taking resources, building basic structures for shelter, and applying laws over their own people. But Indigenous Peoples had long been doing all those things in the Arctic. 20th century courts accepted that in territories remote from the colonising claimant with little or no population, the degree of physical occupation and exercise of jurisdiction could be very limited. However, they refused to consider the much longer and more extensive use and management by Indigenous Peoples.

In the Antarctic, the territorial claims of the seven claimant states do not pivot on any real physical occupation or transformation of the land at all. This would have been impossible on any scale of significance, given the size and challenging climate of the continent at the time of European discovery. Today, the principles that govern the Antarctic continent favour non-use and a minimisation of impacts. At both Poles, justifications for the exercise of jurisdiction are increasingly based on promises to protect wilderness by minimising human impacts. Sovereignty is demonstrated through non-occupation in a complete reversal of the classical legal theory.

In: The Yearbook of Polar Law Online

Abstract

Due diligence standards have been read into treaty provisions for the protection for the environment and beyond in a wide range of international legal settings. The compliance provision of the Madrid Protocol on Environmental Protection to the Antarctic Treaty, Article 13, invites a similar analysis. Despite the doubts of ten years ago that a due diligence standard would be sufficient and appropriate for protecting the Antarctic environment the concept has arguably evolved to the point where it can provide an effective framework for operationalising States’ responsibilities under the Protocol as well as more widely in international environmental law, subject to adequate contextualisation.

In: The Yearbook of Polar Law Online
Author: Carolina Flores

Abstract

Article IV of the Antarctic Treaty has “frozen” the controversies over sovereignty in Antarctica. However, the seven States claiming sovereignty over the continent still have an important role in the Antarctic Treaty System. One of the areas where they show leadership is in environmental protection, which is a pivotal principle of Antarctica’s regime since the adoption of the Environmental Protocol in 1991. Their active role cannot be explained under a Westphalian interpretation of sovereignty, where states have absolute power over the exploitation of their natural resources. Notwithstanding, under a human-based interpretation of sovereignty, the conduct of the Claimant States may have a clearer explanation.

This article will look into the practices of the Claimant States over the Antarctic to understand if and how their sovereignty claims may be linked to environmental protection.

In: The Yearbook of Polar Law Online
Author: Yuko Osakada

Abstract

A human rights approach to climate change, which has been claimed by the Indigenous peoples, consisted of procedural and substantive demands. Their procedural demands have mostly been realized in establishing the Local Communities and Indigenous Peoples Platform and the LCIP Platform Facilitative Working Group (FWG), where they can participate on equal footing with state parties. It could be argued that the LCIP Platform and the FWG have empowered Indigenous peoples who have hitherto been perceived as mere victims of climate change by making them contributors who provide their traditional knowledge related to addressing and responding to climate change. By contrast, their substantive demands have been imperfectly accepted. This might be improved in the Platform’s future activities. In doing so, the Inuit leader has pointed out that it is important to distinguish between local communities and Indigenous peoples in the UN Framework Convention on Climate Change (UNFCCC) processes. This article will argue its feasibility depends on Indigenous peoples’ further efforts to convince state parties to accept such distinctions based on the applicability of the UN Declaration on the Rights of Indigenous Peoples.

In: The Yearbook of Polar Law Online
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In: The Yearbook of Polar Law Online

Abstract

The negotiations on the development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (“BBNJ Agreement”) could have a major impact on the governance of the Central Arctic Ocean, depending on how the BBNJ Agreement structures its relationship with relevant regional instruments, frameworks, and bodies, and whether the agreement will recognise any special rights or interests for ‘adjacent States’ in the governance of areas beyond national jurisdiction. Given the regulatory gaps in Arctic Ocean governance, the BBNJ Agreement has a potential gap-filling role. The BBNJ process could either stimulate the development of a regional regulatory framework for the CAO or shift the regional approach prevalent in many aspects of Arctic Ocean governance to a more globally oriented approach by adding a global layer of governance.

In: The Yearbook of Polar Law Online
Author: Makoto Seta

Abstract

As indicated in Goal 14 of the Sustainable Development Goals, the international community tackles marine biodiversity and ecosystem conservation. However, the information on such biodiversity and ecosystems is limited compared to terrestrial conservation. Therefore, global ocean governance needs to acquire such knowledge and situate this knowledge into the decision-making process. In more recent contexts, the scientific approach is gaining acceptance. Meanwhile, the international movement towards human rights protection has gained strength and respect for diversity has also been confirmed. In this tendency, it is natural that the international community seeks to incorporate the ecological knowledge derived from the experience of various actors, so-called Traditional Ecological Knowledge (TEK), into the global ocean governance. This tendency is quite strong in the Arctic, where scientific evidence has not accumulated, and many people live with TEK. Therefore, the framework to harmonise science with TEK in the Arctic Ocean is a worthy model for the rest of waters in the globe. For this purpose, the paper examined three agreements: the Agreement on Enhancing International Arctic Scientific Co-operation (Science Agreement), the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (CAOFA), and the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ) Agreement, a universal treaty.

In: The Yearbook of Polar Law Online