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When climate change hits
the Arctic: what to make
of recent rules and
approaches
BIRGIT PETERS — 4 May, 2016
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Climate change in the Arctic
Climate change, in particular global warming, is an inevitable
fact. Nonetheless, it will hit different regions of the world
differently. Of all regions, the area most affected by future
temperature change is the Arctic. This is the part of the
global north, which is situated above 66,3 degrees latitude.
Here, differences in temperatures are predicted to rise at
least 3 degrees Celsius compared to the average temperature
for the period of 1986-2005.
Figure from the 2014 UNFCCC Climate Change
Report, Part A, Global and Sectoral Aspects, at:
http://www.ipcc.ch/report/ar5/
For the Arctic, climate change is both curse and blessing. On
the one hand, the melting of ice caps and permafrost soil will
open the region for a variety of uses which were unthinkable
before. Land can be farmed, but also shipping and the
extraction of natural resources on and off coast become
attractive. About a quarter of the world’s reservoirs for oil
and gas are predicted to be situated here. On the other hand,
the warming of sea and climate, plus increased economic use
of the marine and natural resources existent in that region
imply a threat to the Arctic environment and biodiversity: In
addition to inevitable pollution, many species which have the
Arctic as their unique habitat, will need to adapt to changes
in weather conditions, or die, if unable to do so. An often
cited example is the polar bear, which is predicted to be
extinct in about 100 years.
How to protect the Arctic from climate change induced
pollution and degradation?
Considering the regulatory approaches on how to protect the
Arctic from those threats, past and present approaches
diverge significantly.
a. Traditional regulatory approaches: the Arctic as
common heritage or concern of man and humankind
In the past, regulatory suggestions for protecting the Arctic
from the adverse effects of climate change have almost
exclusively focused on a strictly prohibitive approach. Until
2008, the European Union, notably the European Parliament,
the World Wildlife Fund, as well as the International Union
for the Conservation of Nature suggested a regulatory regime
for the Arctic, which was strongly built on the model of the
Antarctic treaty. Thus, regulatory propositions included all,
or a combination of the following components:
– The Arctic is recognized as common heritage or
concern of man or humankind.
– The utilization of natural resources is prohibited or
restricted, to the extent that only utilization for scientific
research is allowed.
– Shipping for commercial purposes is prohibited.
– The Arctic is administered by an international body.
Those
suggestions,
however,
did
not
find
sufficient
international support. Too many practical and regulatory
difficulties persisted: unlike Antarctica, the Arctic has about
four million inhabitants, many of which belong to indigenous
communities, which subside on the utilization of the natural
resources available in the region. In addition, if considering
pollution from ships or the protection of the species living in
the
Arctic,
even
strict
protection
schemes
seemed
ineffective: much of the pollution which reached this area
was emitted from outside the Arctic. This was also true for
much of the Arctic fauna: much of the waterfowl breeding in
the Artic over summer travelled to the region from several
thousand miles away.
b. New rules for the Arctic
Recent regulatory approaches thus took a different turn. In
2014, the Artic Council, a regional international organization
comprised of the “Arctic Five” (U.S., Denmark, Norway, Russia
and Canada) and several observer states as well as indigenous
and non-governmental organizations, completed the Arctic
Biodiversity Assessment, a registry of the fauna and flora to
be found in the region, which can serve as a basis for
decisions about their further protection. The Council
collaborated since 2011 with the bodies of the Convention on
Biological Diversity to provide relevant data in support of
decisions to include parts of the Arctic in the CBD’s (marine)
protected area system.
Most notably however –and contrary to its previous policy to
achieve collaboration and inter-governmental cooperation
via non-binding agreements– the Artic Council adopted in
2013 its first Agreement on Cooperation on Marine Oil
Pollution
(http://arctic-council.org/eppr/agreement-on-
cooperation-on-marine-oil-pollution-preparedness-andresponse-in-the-arctic/), which establishes an emergency
and rescue system between Arctic neighbours and a system
of mutual assistance in cases of oil spills.
Finally, the International Maritime Organization (IMO) has
been at the forefront of regulatory developments regarding
Arctic
marine
environmental
protection,
in
particular
concerning shipping and marine transport and pollution. In
May 2015, the organization adopted the Polar Code for Ships
operating in Polar Waters, which will enter into force in 2017
and which will make binding amendments to the MARPOL
(International Convention on the prevention of pollution
from shops) and SOLAS (International Convention on the
Safety of Life at Sea) conventions.
What to make of those regulatory developments?
The new rules for the Arctic can teach several lessons about
the development of new environmental rules.
First, regarding the form and way the new rules are made,
much of the regulatory activity is non-traditional, in the
sense that it is either regionally motivated, i.e. coming from
within the Arctic Council, or non-traditionally consensual.
This true for the rules made by the IMO, in particular: it can
decide on amendments to existing agreements using in its
tacit acceptance procedure which assumes consent by those
members of the organization after a particular date, unless
they have objected to the coming into force of the new
regulation by that particular date.
Second, applying a “common heritage or concern” approach
to the Arctic seemed no viable option. Interests concerning
resource extraction and shipping are too dominant. Instead
of absolute protection, the new rules for the Arctic focus
more on the idea of sustainability. This means, the rules aim
at environmental protection, while allowing economic
development, for present and future generations (see
principles 1, 4 and 5).
Whereas
this
will
be
beneficiary
for
the
economic
development of the region, the necessary balancing of all
interests – social, environmental and economic – certainly
results in a lower standard of protection than the “common
heritage or common concern” approach.
A response to this post can be found here.
Birgit Peters is assistant professor of Public law, International
Law and European Law at the University of Rostock, Faculty of
Law.
ISSN 2510-2567
Tags: Climate change , International Environmental Law
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