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Author: Nigel Bankes

This article examines recent legal developments in the management of human activities in Arctic marine areas and considers the extent to which these developments acknowledge or recognize the rights, roles and interests of Arctic Indigenous peoples. These developments include the negotiation of three treaties under the auspices of the Arctic Council: the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, (Arctic SAR Agreement), the Agreement on Cooperation on Marine Oil Spill Preparedness and Response in the Arctic (Arctic MOSPA), and the Agreement on Enhancing International Arctic Scientific Cooperation (Arctic Science Agreement), the adoption of the Polar Code by the International Maritime Organization (IMO), and, most recently, the signature of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (the CAOF Agreement). It also examines more recent practice under the Agreement on the Conservation of Polar Bears (ACPB).

In: The Yearbook of Polar Law Online

The changing situation in the Arctic due to global warming has prompted media coverage of a supposed “scramble for the Arctic,” an “Arctic boom,” or an “Arctic Bonanza.” Some even go further, deploying the rhetoric of a “New Cold War,” predicting an inevitable clash between the United States and Russia over interests in the region. The press coverage in both countries over the past decade reflects this new sensationalism. The academic literature unequivocally confirms that the press exerts substantial influence on governmental policy makers, and vice versa. However, while scholars agree that international organizations (IOs) are essential to shaping policies, the existing literature lacks research on media’s relationship with IOs, which often struggle to obtain the coverage and publicity they deserve.

The Arctic Council has provided an effective platform for constructive dialogue and decision making involving the USA and Russia. Accordingly, despite disagreements in other regions of the world, the two global powers have managed to cooperate in the Arctic – notwithstanding recent media coverage painting a different and incomplete picture. This project surveys the media coverage of the Arctic over the past decade in Russia and the USA and its correlation with the Arctic Council’s activities. The analysis draws upon two prominent news organizations in Russia (Kommersant and Izvestiya) and two in the USA (the New York Times and the Wall Street Journal), as well as the Arctic Council’s press releases from June 2006 to June 2017. The paper finds that there is a clear disconnect between media coverage of the region and the Arctic Council’s activities. It recommends that the media pay more attention to the organization, particularly since it is the only prominent platform for international cooperation in the Arctic.

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

Greenland has rich deposits of natural resources. Some of them could have the potential to be commercially developed. The exploitation of these resources could provide enormous opportunities for Greenland’s economic development.

Greenland is part of the Kingdom of Denmark and enjoys far reaching rights of self-government. The population of Greenland is overwhelmingly Inuit, a people elsewhere recognized as an Indigenous people. The question concerning the exploitation of the natural resources is thus a complicated legal issue.

International law provides indigenous peoples with special rights concerning the natural resources in their territory as referenced in the UN Declaration on the Rights of Indigenous Peoples and ILO Convention 169. The Kingdom of Denmark thus has international obligations regarding free, prior and informed consent.

At the national level, the Self-Government Act includes provisions concerning natural resources, and this area is under the sole competence of the self-government. The Greenlandic Mineral Resources Act includes provisions on participation and consultation processes of local inhabitants. This article discusses whether the Kingdom of Denmark, through the Self-Government Act, lives up to its obligations under international law regarding the rights of the Inuit people in relation to the natural resources in their territory.

In: The Yearbook of Polar Law Online

Global pressure over Antarctic resources will mount in the course of the coming decades. Three factors are likely to motivate states to claim jurisdictional rights or rights to natural resources in Antarctica: climate change, dwindling natural resources in the rest of the world, and the fact that – by virtue of Article IV of the Antarctic Treaty – the question of sovereignty remains unresolved. It is high time to think about the moral dimensions that should shape Antarctic claims in the future. Is there any state or group of states more entitled than others to make such claims? What does sound management of natural resources require? How should environmental concerns factor into decisions about jurisdictional control and appropriation of natural resources?

With these broad questions in the background, in this article I examine four principles of justice that figure prominently in current theories of territorial rights and rights over natural resources in political philosophy: connection, capacity, fair distribution, and need. I show how these principles have been used by states, alone or in tandem, to justify claims to jurisdiction and claims to natural resources in Antarctica. After pointing to their main strengths and weaknesses, I suggest that they may be necessary, but insufficient to build a just framework for jurisdiction and appropriation of resources in the White Continent.

In: The Yearbook of Polar Law Online

This article aims to show to what extent ideas and models from the fields of restorative and transitional justice informed the work of the Greenland Reconciliation Commission. The article demonstrates that the idea of processing the past by articulating experiences of both colonialism and neocolonialism dominated the approach taken, and that consequently the legal aspects were only occasionally touched upon. This sets the Greenland Reconciliation Commission somewhat apart from previous truth and reconciliation commissions.

In: The Yearbook of Polar Law Online

This essay provides an Icelandic perspective on the opening of the Arctic Ocean. It provides an overview of the historic evolution of Arctic shipping divided into three distinct stages: The initial stage was driven by search for alternative shipping routes during the expansionist era of modern Europe. The Soviet stage was driven by Soviet strategic interests during the Cold War. The contemporary stage is driven by new technologies, resource development in the Arctic and tourism. A second section focuses on Iceland’s reaction to climate change linking it to Iceland’s role in the Arctic Council, and the need for action and adaptation. The final section connects the two first sections and highlights Iceland’s potential role in future trans-Arctic shipping. It heralds the beginning of the fourth stage of the evolution of Arctic shipping with the imminent opening of the Arctic Ocean for intercontinental shipping, This stage will be driven by the need for increased connectivity in a globalized economy, decreasing sea ice, capacity constraints of current shipping routes and security concerns

In: The Yearbook of Polar Law Online

While legal progress on Indigenous land claims has recently been fostered around the globe, sea claims still lag behind. Since the beginning of colonization, the doctrine of mare nullius declared seas vacant of Indigenous tenure or authority and led to the establishment of sovereign State jurisdiction over offshore areas, and more recently to the characterization of the living resources in these waters as accessible for each State’s citizens. In Norway, colonialism was not characterized by transoceanic settlement. The concept of establishing sovereignty in offshore areas attached to the land, however, had the same basis as the European colonies in America or Oceania. In this context, the acknowledgement of the marine living resources in the waters attached to the land as common goods for all Norwegian citizens adversely affected the Coastal Sámi Indigenous peoples, who exclusively and since time immemorial managed the wild marine living resources based on customary systems of marine tenure. Additionally, due to increased regulations over the past few decades, it has become difficult for the Coastal Sámi to continue their traditional way of living. Still, legislation and recommendations on Indigenous participation in marine resource management exist and derive from both Norwegian and international law. However, despite the established legal framework, Coastal Sami participation in marine resource management is often questioned. It has been argued that the most appropriate way to ensure Indigenous inclusion in marine resource management is to look at the reverse side of the coin, exploring Indigenous tenure, legal traditions and knowledge, and accommodate them within State law. This project aims, through ethnographic fieldwork and literature analysis, to discuss the current status of Coastal Sámi fisheries in the communities of Troms County, and illustrate local conceptions of marine resource management among the project participants.

In: The Yearbook of Polar Law Online
In: The Yearbook of Polar Law Online
In: The Yearbook of Polar Law Online
Author: Elise Johansen

People around the world are turning to the courts to ensure that steps are taken to tackle climate change, using litigation as a tool to force action. An emerging trend in climate litigation is to look to other legal regimes for sources of climate obligation and there is a growing number of climate change cases looking at the relationship between human rights and climate change, and refugee law and climate change. This paper looks at the role of the law of the sea regime in climate change cases, in which some connections to ocean issues are identified – either because the activities that contribute to GHG emissions takes place in the ocean space, or because the effects are felt there. One main finding is that that the use of the law of the sea-based rights and obligations is almost non-existent in climate litigation. Another main finding, based on an analysis of one of the relevant cases, namely the Norwegian Climate Change Case, is that the general obligations established by section 1 of Part XII of the LOSC represent an untapped resource to legal obligations in climate litigation.

In: The Yearbook of Polar Law Online

Over the last three decades, the Arctic and the Arctic Council (AC) have experienced profound changes. Since its establishment in 1996, the AC has evolved significantly in reach and stature; it has expanded its portfolio of projects and instruments, and it has also substantially enhanced its administrative capacities. So far, most studies on the AC have focused on exogenous sources of its change. In contrast, drawing from the general literature on international environmental regimes and gradual institutional change, this paper examines the endogenous factors and properties of the AC and the role they play in enabling or constraining the AC’s institutional change. This reveals that the AC’s setup provides ample space for change agents who, if able to identify windows of opportunity and exploit the inherent openness of the Council’s rules, can establish new precedents that can ultimately influence the course of the AC’s evolution. As such, the analysis draws our attention to previously understudied questions of agency and endogenous sources in the processes of institutional change of the AC. Moreover, as a case study on an informal institution, it is a source of insight and a contribution to the general literature on international environmental regimes, which to date has focused almost exclusively on hard-law and treaty-based institutions.

In: The Yearbook of Polar Law Online
Author: Xueping Li

Unique geological and geographical characteristics and immense economic potential have made Arctic governance an issue of global attraction, as evidenced by China’s recently published first Arctic policy. One important part of Arctic governance is the UNCLOS, and China has to evaluate its Arctic involvement from the perspective of this treaty. While a number factors motivate China’s Arctic interests, the contemporary legal regime of Arctic governance is focused on respect for the sovereignty and sovereign rights of the Arctic States as well as the UNCLOS principles. On its journey to Arctic governance, China must comprehensively elaborate on its legal choices by thinking more carefully of the UNCLOS in order to reply to the comments or criticism from other countries.

In: The Yearbook of Polar Law Online
In: The Yearbook of Polar Law Online
Author: Paula Kovari

The impacts of climate change as well as the increase of economic activities call for effective governance of the Arctic Region. The Arctic Council is the predominant intergovernmental forum in the region. The rotating chairmanships of the Member States have a defining role in the work of the Council. This paper compares the Arctic Council chairmanship programmes of the five Nordic Countries with the organisation’s outputs following the two-year chairmanship periods as expressed in the ministerial Declarations and the SAOs’ reports. The paper finds that the discourse on the studied topics has developed greatly over time and despite the similarities between the countries’ foreign politics in general, there are some notable differences in the way the countries see the future of the Arctic – for example through the region’s vast natural resources or as a unique environment of the Arctic biodiversity. The conclusion of this research is that even though the chair cannot take all the credit for its accomplishments during the chairmanship period in question, nor can it be blamed for all possible failures, the chair’s work does leave its mark on the Arctic Council’s performance.

In: The Yearbook of Polar Law Online

The Antarctic offers unique opportunities to scientists in many disciplines for improving understanding of regional and global conditions. The governing Antarctic Treaty has 53 State Parties, many of which do not have geographical proximity to the continent. However, the importance of various disciplines of science and many other factors, urge them to participate in the Antarctic scientific activities. Therefore, it is not surprising that Iran is considering participation in Antarctic scientific research, and it has now set processes in motion to join these states in their endeavour to undertake research in Antarctica and contribute to its governance. Iran will develop a strategic plan prior to the commencement of its Antarctic activities, outlining its vision and objectives of an Antarctic program, as well as the financial and logistical implications, and is currently undertaking preparatory work that will culminate in the drafting of an Antarctic strategic plan. In doing so, the authors examined a number of factors including ones that could be identified in Antarctic law and policy as influencing the status and development of the existing Antarctic regime, the recent Antarctic Treaty States’ accession processes and strategies, the express or implied motivations for States to join the Antarctic Treaty, and generally the Antarctic Treaty System, all of which can be reached based on the aforementioned examination that can be incorporated in an Iranian Antarctic science roadmap.

In: The Yearbook of Polar Law Online
Author: Marcin Dymet

One of the inequalities generated by the introduction of information and communication technologies (ICTs) is the digital language divide, that is, differences in the online presence of languages and unequal access to information due to the lack of understanding of the available content. The digital language divide is particularly visible in the case of small languages with a low number of speakers. There is a large group of languages with non-existent or irrelevant online presence. This is often the case of the endangered minority languages. The number of language speakers or the level of knowledge of a given language is not sufficient to generate a vital online community.

This article presents the current language situation in the European High North with a focus on minority languages: Sámi and Meänkieli languages in Sweden, Sámi and Kven languages in Norway, and Sámi languages in Finland. It also introduces the phenomenon of digital language divide. The article explores the current situation of the minority languages in the European High North in light of their online presence. It responds to the following questions: Is there online presence of the studied minority languages? Is there a need amongst the minorities’ members for more extensive presence? To conclude, the article discusses the possible effects of a language’s underrepresentation.

In: The Yearbook of Polar Law Online

The urgency of applying effective legal strategies to respond to environmental change in the Arctic is ever more apparent. The existing framework for environmental governance has matured and its constituents are numerous, and many are promising. However, policymakers and other stakeholders contend that new approaches to confronting environmental conditions, including mitigation of climate change and adapting to it, are needed. Many ideas have been offered; they range considerably in their assessment of what changes are needed and by when. Here we briefly describe the cluster of constituents of environmental governance, the international environmental regime, of the Arctic; we briefly note newly recommended approaches; and we analyse two approaches we consider most promising. These, cooperative scientific-based management strategies and adversarial legal actions, are dissimilar – to the point that some policy makers consider them incompatible. We argue, however, that both are needed and we describe elements of their successful use.

In: The Yearbook of Polar Law Online
Author: Kamrul Hossain

This article examines challenges and opportunities resulting from the rapid expansion of information and communication technology (ICT), through their impacts on the traditional culture of a given community. The expansion of ICT extends to all spheres of our lives, and makes society globally-oriented, which has provided opportunities for communities located in remote regions to stay connected and participate in global issues, as well as to take advantage of new innovations, in a virtual environment. However, these developments have also resulted in tensions when considered from the perspective of maintaining fundamental values traditionally held by a community. These fundamental values are often developed from traditionally practiced social norms which, at times, are transformed to adapt to a new cultural reality in response to, for example, information-based technological development. Such developments may generate concern that information-based societal development will negatively influence the traditions and culture of communities, and indigenous communities in particular. These concerns suggest that the introduction of an invasive culture will affect the established community and their culture, who build their identity based on traditional norms. Many indigenous communities, whose identities are founded in nature-based traditional practices, are arguably afraid of losing their cultural values as a result of new information-based societal development. It is based on this premise that the following article considers the Sámi indigenous community of the European High North (EHN) as case study, to argue that culture is a transformational, and not a static, element in any given society; it highlights that information-based cultural development and traditional norms can be mutually re-enforcing. The article argues that culture should be viewed holistically, and that the integration of information-based societal development within traditional culture and identity contribute to cultural modernisation.

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

Indigenous peoples have attracted a lot of attention in international legal and political instruments during the last couple of decades. Only very recently, however, have international institutions started to address the situation of minorities within minorities that often experience multiple discrimination. This article focuses on the vulnerable situation and the rights of Sámi persons with disabilities in Finland as the case study to demonstrate the inadequacy of different legal regimes to recognise and thus help to prevent and overcome the multiple discrimination of persons with disabilities who also belong to the indigenous community. The article calls for an intersectional approach to law, in order to recognise that persons with multiple identities may need legal protection that recognises the problem of multiple discrimination, and thereby adequately protects their rights and equality.

In: The Yearbook of Polar Law Online
Author: Gerald Zojer

Digitalisation has increased rapidly in recent decades, and became integral part of the development agenda of most states. The development of cyberspace has led to numerous opportunities for human development, but it also has presented certain challenges to societies. In acknowledging the importance of digital technologies, many states have endorsed strategies for digital development and cybersecurity. Because these strategies are often state-centric, techno-deterministic, and simplistic, they disregard the interconnectedness and complexity of the opportunities and challenges these technologies can entail in a region-specific context.

This paper argues that the human security framework may be applied to analyse and study the region-specific implications of digitalisation. The multidimensional and comprehensive human security approach includes state-centric concerns as well as the needs and fears of people and communities in a specific region. Moreover, the human security framework enables the local population to voice their concerns. The insights that the human security approach offers could contribute to developing meaningful and targeted policies that address the concerns of people and communities in specific regions. The paper uses the argument on the European High North as a case study to show that digitalisation has region specific impacts and how digitalisation is interrelated with human security.

In: The Yearbook of Polar Law Online
This book addresses the increased role and standing of international law in the Russian legal system through analysis of judicial practice since the adoption of the Russian Constitution in 1993. The issue of interaction and hierarchy between international and domestic law within the Russian Federation is studied, combining theoretical, legal and institutional elements.
Sergey Marochkin explores how methods for incorporating and implementing international law (or reasons for failing to do so) have changed over time, influenced by internal and global policy. The final sections of the book are the most illustrative, examining how 'the rule of law’ remains subordinate to ‘the rule of politics’, both at the domestic and global level.