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Secretariat
When the Council was established in 1996, there was no support among the members for a permanent secretariat (Sellheim, 2012). As the Council was only a high-level forum there was no need to spend financial resources to support a permanent secretariat.
Therefore, all secretarial support was the responsibility of the Council Chair state. As the work of the Council has become greater in scope, the need for a permanent secretariat has grown. In 2006 the Council got a semi-permanent secretariat when Norway, Denmark and Sweden agreed to share the cost of a secretariat in Tromso, Norway during their continuous chairmanships from 2006 to 2012. The 2011 Nuuk Declaration included a call to set up a task force to prepare arrangements for a secretariat (AC, 2011a). In 2013, after the task force had completed its two-year research the Tromso secretariat became permanent. The establishment of a permanent secretariat furthered the institutionalization of the Council, moving it further towards an international organization.
7. The Arctic Council Transforms: Soft Law to Hard Law
Since it was established in 1996, the Arctic Council has expanded in both its size and the scope of its activities. This expansion has taken place because of the increasing importance that the Arctic has been taking on in recent years. As climate change opens up new areas for resource extraction and opens up new trans-Arctic sea routes for shipping there is increasing need for rules to govern these new opportunities. The Arctic States have realized this and they have begun to make moves to regulate Arctic activities.
Responding to a changing Arctic, in 2011 the Council began a transformation from a purely soft law regime, where state behaviour is governed by norms and codes of conduct, to a regime that has its foundations in hard law.
Soft law refers to international norms that are deliberately non-binding in character but still have legal relevance (Skjarseth, Stokke, & Wettestad, 2006). Soft law arrangements can include resolutions of international organizations, announced action plans, or codes of conduct. Hard law, on the other hand, refers to legally binding obligations or agreements that are unambiguous regarding required or authorized conduct. Each type has their advantages and disadvantages. Soft law arrangements are typically easier to obtain than legally binding agreements as soft law does not require domestic ratification
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and there is less need for mechanisms to monitor compliance. But since action plans or codes of conduct are normative in nature they can be detrimental to environmental regimes, as parties are not bound to commitments. The transformation of soft law norms to hard law institutions improves and solidifies the implementation of those norms (Skjarseth, Stokke & Wettestad, 2006). Hard law “provides a powerful framework, reduces transaction costs, strengthens the credibility of states’ commitments, expands their available political strategies, and resolves problems of incomplete contracting”
(Kao, Pearre & Firestone, 2012a). At the same time, it is much more difficult and time-consuming to reach agreements on hard laws.
When the Arctic Council was formed in 1996, it was deliberately set up without legal personality; it was a forum designed to allow countries to exchange views and establish normative cooperation in the Arctic. It was an organization that promoted soft law (resolutions, action plans, codes of conduct) but never produced hard law, it was never envisioned as an organization that would produce legally binding agreements. In its early years the Council would typically focus on the soft issues of Arctic cooperation such as increasing scientific cooperation, promoting international awareness of the Arctic region, and affirming the Council’s support for indigenous peoples. Typically the Council would merely “encourage” states to adopt agreed upon norms. For example, when the Council’s influential 2004 Arctic Climate Impact Assessment was released, which included several recommendations for states to decrease the rate of pollution in the Arctic, the Council announced that it would “encourage the AC member states to implement the Assessment’s recommendations” (AC, 2006). There were no legal options available for the Council to take to require states to comply with the report’s recommendations.
Climate change has forced a change in the Council’s workings. Melting sea ice has led to increasing Arctic activity in recent years, especially shipping, resource exploration and Arctic tourism. These are welcome activities for Arctic states, but they also bring risks, most importantly shipping emergencies and environmental pollution. These increasing risks have pushed the Arctic Council to adopt laws governing Arctic activities. This shift to hard law did not happen overnight, however, and there has been significant debate
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within the Council on the role that it should play in Arctic governance.9 Nevertheless, a noticeable transformation has taken place within the Council. This transformation is manifested in the first two legally binding agreements signed under the auspices of the Council:
• The 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic; and
• The 2013 Agreement on Cooperation on Marine Oil, Pollution, Preparedness and Response in the Arctic.
7.1 2011 SAR Agreement
The duty to rescue distressed persons at sea is covered by a patchwork of international agreements. Obligations for international search and rescue operations is under the United Nations Convention on the Law of the Sea (UNCLOS), several conventions within the framework of the International Maritime Organization (IMO), including the International Convention for the Safety of Life at Sea (SOLAS), and the 1979 International Convention on Maritime Search and Rescue (SAR Convention). After the SAR Convention entered into force in 1985 the IMO divided the world’s oceans into 13 SAR areas and made the states within those areas responsible for delimiting their respective SAR areas of responsibility (Kao, Pearre, & Firestone, 2012a). The SAR area over the entire Arctic Ocean was given to Canada, Russia and Norway, though the specific areas of responsibility were not delimited. A more comprehensive agreement involving all of the Arctic States and the specific delimitation of SAR areas of responsibility was needed. The Arctic Council provided the forum for the negotiations on the delimitation of SAR areas of responsibility.
Initial movements for a search and rescue agreement began in 2001 when Russia proposed setting up a group to study maritime emergencies in the Arctic (Rottem, 2014).
The other Council members met the Russian proposal with resistance and the proposal was shelved until Russia’s tenure as Council Chair began in 2004. During Russia’s tenure as Council Chair the proposal for a task force was promoted repeatedly but when Russia stepped down in 2006 there was still no consensus on how to move forward. The turning
9 The United States has long been in opposition to the Council moving towards hard law. See Pederson, 2012.
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point was in 2008 when the five littoral Arctic states (Canada, Denmark, Norway, Russia and the US) met separately in Ilulisat for the Arctic Ocean Conference. Foreseeing an increase in Arctic shipping and tourism, the declaration pronounced at the end of the conference stated the “need to further strengthen search and rescue capabilities and capacity around the Arctic Ocean to ensure an appropriate response from states to any accident” (Ilulisat Declaration, 2008). The five littoral Arctic states had decided to make a search and rescue agreement an action priority.
In 2009 the work for an Arctic search and rescue agreement finally began in the Council.
In the 2009 Tromso Declaration an SAR Task Force was established and given the mandate to “develop and complete negotiation by the next Ministerial meeting in 2011 of an international agreement on cooperation on search and rescue operations in the Arctic”
(AC, 2009a). The task force was headed by Russia and the United States and held five meetings in 2009 and 2010 to determine the scope of the new agreement.
In 2011, after two years of internal deliberation by the SAR Task Force, the eight Arctic states signed the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement).
The objective of the SAR Agreement is to “strengthen aeronautical and maritime search and rescue cooperation and coordination in the
Arctic” (AC, 2011b). It is made up of 20 articles and an annex that delineates the area of responsibility for each party in the event of a maritime emergency in both domestic and international waters. The area of responsibility for each party is shown in Figure 3.10 The agreement does not establish any new institutional arrangements, there is no permanent
10 Map of areas of responsibility retrieved from: http://www.arctic-council.org/index.php/en/environment-and-people/oceans/search-and-rescue/157-sar-agreement.
Figure 3 Arctic SAR areas of responsibility
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search and rescue center set up, but it does require the Arctic states to meet on a regular basis and conduct joint search and recue exercises and training. Two such training sessions have been held already, one tabletop exercise in Canada and one live exercise in Greenland (Rottem, 2014).
As Arctic tourism grows in popularity and Arctic shipping becomes more prevalent, the chances of a maritime accident in the Arctic naturally rise. The SAR Agreement was signed in part to minimize the response time to Arctic emergencies. The 2011 SAR Agreement, the first legally binding agreement signed under the auspices of the Council, set the stage for the second legal mechanism signed two years later.
7.2 2013 Oil Pollution Agreement
Besides opening up new shipping routes, melting sea ice also opens new areas for resource extraction. New areas for oil and gas exploration, combined with new shipping routes to transport those resources, means more oil and gas is being transported through Arctic waterways. An increase in traffic raises the possibility of potentially environmentally devastating spills. Given that the harsh Arctic climate heavily discounts the possibility of a quick clean up, a mechanism to deal with potential oil spills was a necessary action priority for the Council. There was also a strong push from member states, led by the United States and Norway, to create a mechanism to deal with potential spills (Cheng, 2013b).
In the 2011 Nuuk Declaration another task force was created, this time its mandate was to
“develop an international instrument on Arctic marine oil pollution preparedness and response” to be presented and signed at the 2013 Ministerial Meeting (AC, 2011a). The task force was headed by Norway, Russia and the United States and the group held four meetings in 2011 and 2012. The new agreement, the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (Oil Pollution Agreement), was signed by all member states at the 8th Ministerial Meeting in Kiruna in 2013. Its objective is to “strengthen cooperation, coordination and mutual assistance among the Parties on oil pollution preparedness and response in the Arctic in order to protect the marine environment from pollution by oil” (AC, 2013b).
The Oil Pollution Agreement stipulates that each party will maintain a national system for promptly responding to maritime oil spills in the Arctic. It lists several geographic
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areas that are prone to spills and instructs the member states to focus risk management on those areas. The agreement is especially focused on oil spills that occur in international waters. In the event of an oil spill anywhere in the Arctic, the agreement requires Arctic states to notify each other of the spill.
While not legally strenuous, the 2013 Oil Pollution Agreement’s significance is its status as the second legally binding agreement signed under the auspices of the Council. Since the agreement focuses on oil spill response, it is a likely precursor of an oil spill prevention agreement. In the 2013 Kiruna Declaration, two paragraphs following the announcement of the Oil Pollution Agreement, it was announced that the Council has decided to establish a task force to develop an agreement on oil pollution prevention. The focus on producing legally binding agreements seems to be the priority of the Council in the coming years.
7.3 Soft law to hard law
The Arctic Council itself does not have the ability to bind its members to any legal agreements. Members plan and negotiate agreements in the Council’s task forces and sign them on the sidelines of the ministerial meetings. The SAR Agreement was collectively agreed to by the eight Arctic States at the last session of the SAR Task Force and signed at the 2011 Ministerial Meeting. A similar arrangement took place with the 2013 Oil Pollution Agreement. While the Council still does not have legal authority, it has shown that it has the ability to advocate for legally binding mechanisms and act as the venue for negotiations. The Council can create task forces to conduct research and negotiate new mechanisms and subsequently have all eight Arctic States sign an agreement at the biannual ministerial meetings. So while the Arctic Council is not a legal body per se, there has been a clear evolution in its workings and it has moved further away from the “high level forum” that it was conceived as and more towards a typical international organization.
The soft law to hard law transformation may signal a further evolution in the Council. As Cheng Baozhi of SIIS has pointed out, the two agreements may open the door for the Council to discuss military matters (Cheng, 2013a). Due to the nature of the 2011 SAR Agreement (maritime search and rescue in a hostile, remote environment), the responsible agencies for carrying out Arctic search and rescue operations in each country
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may include the military or defense sector. The appendix of the 2011 SAR Agreement lists the agencies responsible for search and rescue in each country. The United States and Canada both list their defense departments as agencies partly responsible for Arctic search and rescue.11 Since Article 10 of the Agreement also calls on states to begin
“conducting joint search and recue exercises and training”, which has already taken place at least twice, there is a possibility that this agreement opens the Council up to some level of cooperation on military matters.
The Arctic Council’s ability to shape the Arctic legal structure elevates its status in the region and further entrenches the Council as the most important regime governing Arctic affairs. Given that the 2015 Iqaluit Declaration included the decision to establish a task force to assess the future need for a regional seas program and another task force to establish a legally binding mechanism on scientific cooperation, it is likely that the Council’s trend of producing hard law governing Arctic affairs will continue into the future.