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37 Envtl. Pol'y & L. 321 (2007)
Reflections on the Possibilities and Limitations of a Binding Legal Regime

handle is hein.journals/envpola37 and id is 321 raw text is: ENVIRONMENTAL POLICY AND LAW, 37/4 (2007) 321 Arctic Region Reflections on the Possibilities and Limitations of a Binding Legal Regime by Hans Corell* This article argues three points: 1. There is already a binding legal regime that applies in the Arctic. Rather than focusing on new regimes, we should concentrate our resources on working with what we have - examine it to determine whether the present legal regime is sufficient and, if not, work towards strengthening it. 2. We should ensure that the existing regime is imple- mented and that States that have not yet acceded to or otherwise accepted elements of this regime do so. 3. We should work to build political support to achieve the necessary protection of the Arctic. Some of these reflections are based on scientific ma- terial and, in particular, the Arctic Climate Impact Assess- ment, established at the request of the Arctic Council and first presented in November 2004.1 This assessment is a significant document representing the first effort to com- prehensively examine climate change and its impacts in the Arctic region. The Assessment identifies two points relevant to this article. First, climate change will have great impacts in the Arctic. Second, and most importantly, these impacts are generated from outside the Arctic and their effects will also occur outside the Arctic. This is of tremendous con- sequence when one examines the possibilities and limita- tions of a binding legal regime for the Arctic. There is Already a Binding Legal Regime in the Arctic The title of this article may seem to suggest that there is no binding legal regime for the Arctic. But the fact is that there is already a wide-ranging legal regime, in par- ticular under the United Nations Convention on the Law of the Sea (UNCLOS). Some of the global conventions for the protection of the environment should also be high- lighted in this context. Of special importance, Part V sets out UNCLOS's rules on the exclusive economic zone (EEZ) and Part VI, on the continental shelf, governs large portions of the Arctic. With respect to the exclusive economic zone, UNCLOS * Hans Corell was Ambassador and head of the Legal Department of the Swed- ish Ministry for Foreign Affairs from 1984-1994. In that capacity, he was head of the Swedish delegation in negotiations on maritime delimitation between Sweden and three neighbouring countries in the Baltic. From 1994-2004, he was Under- Secretary-General for Legal Affairs and the Legal Counsel of the United Nations which, among other things, entailed supervising the work of the Division of Ocean Affairs and the Law of the Sea. In 2005, he was Chairman of the XIII Antarctic Consultative Meeting. This article is based on a presentation that he gave at a Conference on Balancing human use and ecosystem protection organised by Arctic Frontiers Tromso in Norway on 22 January 2007. prescribes that it shall not extend beyond 200 nautical miles from national baselines. UNCLOS also contains provi- sions on the rights, jurisdiction and duties of the coastal State in the zone, and rules on rights and duties of other States in the same.2 With respect to the continental shelf, this article briefly notes only two elements, namely the Russian and Norwe- gian submissions to the Commission on the Limits of the Continental Shelf (CLCS).3 The Russian Federation was the first country to make a submission to the Commission for the entitlement to the continental shelf beyond 200 nautical miles. Among four areas identified in the application, the claim included the Central Arctic Ocean, where it extended all the way to the North Pole. The Norwegian submission to the CLCS was presented to the Commission on 27 November 2006 and identified three separate areas in the North East Atlantic and the Arctic. The northernmost point in that submission is not the North Pole but a point some six degrees south of the Pole. Other States bordering the Arctic will no doubt make similar submissions to the CLCS, and Norway has indi- cated that a further submission may be made in respect of other areas. All this should be borne in mind when one discusses how to protect the Arctic. Another important factor is shipping. Given the evi- dence that the sea ice in the Arctic is melting, larger areas of the Arctic will in the future be open to shipping. This may require the designation of special maritime regimes in the area. At the same time, there are limits to the possi- bilities for coastal states to adopt special regimes for tra- ditional maritime shipping on the high seas.4 Finally, on this point, one question that is sometimes asked is whether it is possible to create a legal regime for the Arctic that is similar to the one that applies in Antarc- tica. A comparison of the two areas is appropriate. Ant- arctica is a continent of some 14 million square kilome- tres, surrounded by sea. In the Arctic, the situation is quite the opposite: it is an ocean of about the same size, 14 mil- lion square kilometres, surrounded by continents. The area north of the Arctic Circle is 21 million square kilometres. This area is larger than the entire territory of the US (over 9 million square kilometres), of Canada (10 million square kilometres), or of the Russian Federation (17 million square kilometres). However, as the author has elaborated in an- other context, his analysis of the possible application of the Antarctic regime has concluded that the Antarctic Treaty could hardly serve as a model for organising a com- 0378-777X/07/$17.00 © 2007 lOS Press

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