The Arctic Council and “Law-Making”

Natalia Loukacheva

doi:10.22584/nr50.2020.005

Abstract

The Arctic Council (AC) is a high-level international intergovernmental forum founded by the Ottawa Declaration of 1996. Its eight member states are Canada, the Kingdom of Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. Six organizations representing Arctic Indigenous peoples have “Permanent Participant” status. The AC is not an international organization based on a legally binding instrument, such as a treaty. It does not have the legal personality of an international organization under international law, which would enable it to develop legislation or conclude treaties with other subjects of international law. However, although the AC is not a legislative body it has been contributing to the development of international law as it relates to the Arctic. In particular, the Arctic Council was engaged in the development and negotiation of three legally binding agreements concluded by the eight Arctic states: the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011); the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013); and the Agreement on Enhancing International Arctic Scientific Cooperation (2017). By looking at the “law-making” activities of the AC and, specifically, the agreements concluded under its aegis, this article investigates how these agreements have shaped the nature and evolution of this forum. Then the article explores the potential for further legally binding agreements negotiated under the auspices of the Arctic Council.

Highlights

The Arctic Council (AC) is an intergovernmental forum that—despite the growing influence of non-state actors and sub-regional entities in Arctic developments and cooperation—is very much based on the premise of sovereignty and stateto-state relations of the eight Arctic states that are the AC’s member states: Canada, the Kingdom of Denmark including Greenland and the Faroe Islands, Finland, Iceland, Norway, Russian Federation, Sweden, and the United States
The “Host Country Agreement between the Government of the Kingdom of Norway and the Arctic Council Secretariat on the legal status of the Secretariat and the privileges and immunities of the Secretariat and its staff members” was signed in January 2013. It defines that the “Secretariat has legal personality and capacity to perform its functions in Norway.”[5] the signing of such an agreement does not change the legal status of the AC itself, this is arguably another indicator of the AC’s possible evolution towards an international organization under international law.[6]
The negotiations, under the auspices of the Arctic Council, of the legally binding agreements point to the AC’s ability to respond to current and emerging challenges. This practice shows that all Arctic states are able to consolidate their efforts on the AC’s platform in addressing the most pressing issues

Summary

Introduction

The Arctic Council (AC) is an intergovernmental forum that—despite the growing influence of non-state actors and sub-regional entities in Arctic developments and cooperation—is very much based on the premise of sovereignty and stateto-state relations of the eight Arctic states that are the AC’s member states: Canada, the Kingdom of Denmark including Greenland and the Faroe Islands, Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. Both agreements of 2011 and 2013 have signified a new chapter for legal developments in the Arctic They have shown that the AC has evolved from its advisory mandate into a more influential body that is able to react to the most pressing issues in the region both in political and practical terms.While “remaining a ‘soft-law’ body, the council has ‘moved’ to the use of ‘hard-law’ instruments on issues of relevance to both the circumpolar region and to the international community more generally.”[85] rooted in global treaties, to which the Arctic states were already parties, these agreements have enabled Arctic-specific implementation measures and advanced the Arctic governance framework through responsible approaches (i.e., legally binding agreements “that clearly added value to the region”).[86] Both agreements signified progress in the institution building process of the AC, served as a bridge between science and policy, and improved the position of the AC in the regional governance framework.[87]. One more topical area for a potential legally-binding regional agreement, is the prevention and elimination of natural forest fires across the Circumpolar North.This subject seems to be an area of growing concern in the Arctic, especially among some Indigenous groups (i.e., Saami reindeer herders)

Conclusion

54. Status of Implementation