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Geographical and Environmental Impacts of Climate Change in the Arctic Legal Regime: Towards a Comprehensive Legal Order for Balancing Environmental Governance and International Trade & Commerce Interests

Matin, Tafsir LU (2012) JASM01 20121
Department of Law
Abstract
The thesis aims at supplementing a critique of the existing international instruments, regional responses and national legislation of the Arctic related to marine environmental protection. With this aim in view, the thesis satisfies its objective by proposing a Bipartite “Arctic Council” acting as a conglomeration of the Arctic States and the Flag States with a hybrid “Arctic treaty”, which is an interplay of international and regional response. The “Arctic Council”, apparently, has been highlighted and envisioned as a platform which can provide a significant solution, if modified accurately, to balance sustainable development (marine environment) and international navigation (trade and commerce) in the event of rapid climate change.
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The thesis aims at supplementing a critique of the existing international instruments, regional responses and national legislation of the Arctic related to marine environmental protection. With this aim in view, the thesis satisfies its objective by proposing a Bipartite “Arctic Council” acting as a conglomeration of the Arctic States and the Flag States with a hybrid “Arctic treaty”, which is an interplay of international and regional response. The “Arctic Council”, apparently, has been highlighted and envisioned as a platform which can provide a significant solution, if modified accurately, to balance sustainable development (marine environment) and international navigation (trade and commerce) in the event of rapid climate change.
In an endeavor to examine the pertinent environmental legal regime of the Arctic, it seemed important to delve into the maritime boundary delimitation issues which involve three major Arctic States. These issues which subsist in two significant Arctic sea routes have a subtle connection with the subject of marine protection, which is revealed after a detailed analysis of the geographical issues. While the landscapes are shaping up as a result of global warming, certain Arctic States have risen to the occasion to extend their maritime boundaries in the offshore areas. They have not only resorted to contradicting theories to establish sovereign claims, but also adopted extreme standards and implemented them in national legislation. “Conflict of law” which in turn distorts the international legal regime, is evident from the comparative study between two significant Arctic national legislation. More significantly, this distortion leaves a question on the face of Arctic marine protection. Investigations lead to the fact that the boundary issues have distracted the Arctic States from promulgating a parallel system to safeguard the pristine environment and have left the entire Arctic environmental protection regime in disarray. Inevitable as it is, climate change will accelerate international navigation and break any resistance which operates against “due regard to navigation” as embedded in the lex specialis regime of UNCLOS. Moreover, areas beyond national jurisdiction have not received proper attention and till date none of the zones have been designated as MPA’s. On the other hand, the international community which supports “freedom of navigation” only seeks commercial advantages of a shorter sea route. There is a vacuum of global concern. Moreover, the international instruments and regulatory conventions portray a lack of respect for the Arctic which is seen as the “last ecosystem on earth”. Apart from dealing with inconsistent geographical claims, the Arctic States have responded via Arctic Council, which is an intergovernmental forum established for the purposes of addressing questions of sustainable development as well as environmental issues. With no specific mandates, the five working groups under the Council suffer from low funding.
The “soft law” character of the “Arctic Council” has been viewed as a major drawback and the Arctic legal regime is found to be
2
much less comprehensive when compared to the treaty-based regime that regulates the Antarctic, a region with a very similar environment. As such, discussions have proceeded as to whether the Arctic is in need of a new legal regime, and whether the Antarctic treaty should be a model. What is truly needed is structure, and regardless of which shape the future Arctic legal regime takes, the most important aspect is that the existing “Arctic Council” must take into consideration the geographical and environmental impacts of climate change and supplement a comprehensive legal order. It is not the single concern of the “Arctic Council” to consider and supplement a legal order, but it should be a global consideration to work hand in hand with the Council to implement this order. If the shipping industry is to provide support, the “Arctic Council” will need to provide further clarification concerning many questions, amongst of which one is, how this comprehensive legal order will correctly balance environmental governance and international trade. (Less)
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@misc{2607590,
  abstract     = {The thesis aims at supplementing a critique of the existing international instruments, regional responses and national legislation of the Arctic related to marine environmental protection. With this aim in view, the thesis satisfies its objective by proposing a Bipartite “Arctic Council” acting as a conglomeration of the Arctic States and the Flag States with a hybrid “Arctic treaty”, which is an interplay of international and regional response. The “Arctic Council”, apparently, has been highlighted and envisioned as a platform which can provide a significant solution, if modified accurately, to balance sustainable development (marine environment) and international navigation (trade and commerce) in the event of rapid climate change.
In an endeavor to examine the pertinent environmental legal regime of the Arctic, it seemed important to delve into the maritime boundary delimitation issues which involve three major Arctic States. These issues which subsist in two significant Arctic sea routes have a subtle connection with the subject of marine protection, which is revealed after a detailed analysis of the geographical issues. While the landscapes are shaping up as a result of global warming, certain Arctic States have risen to the occasion to extend their maritime boundaries in the offshore areas. They have not only resorted to contradicting theories to establish sovereign claims, but also adopted extreme standards and implemented them in national legislation. “Conflict of law” which in turn distorts the international legal regime, is evident from the comparative study between two significant Arctic national legislation. More significantly, this distortion leaves a question on the face of Arctic marine protection. Investigations lead to the fact that the boundary issues have distracted the Arctic States from promulgating a parallel system to safeguard the pristine environment and have left the entire Arctic environmental protection regime in disarray. Inevitable as it is, climate change will accelerate international navigation and break any resistance which operates against “due regard to navigation” as embedded in the lex specialis regime of UNCLOS. Moreover, areas beyond national jurisdiction have not received proper attention and till date none of the zones have been designated as MPA’s. On the other hand, the international community which supports “freedom of navigation” only seeks commercial advantages of a shorter sea route. There is a vacuum of global concern. Moreover, the international instruments and regulatory conventions portray a lack of respect for the Arctic which is seen as the “last ecosystem on earth”. Apart from dealing with inconsistent geographical claims, the Arctic States have responded via Arctic Council, which is an intergovernmental forum established for the purposes of addressing questions of sustainable development as well as environmental issues. With no specific mandates, the five working groups under the Council suffer from low funding.
The “soft law” character of the “Arctic Council” has been viewed as a major drawback and the Arctic legal regime is found to be
2
much less comprehensive when compared to the treaty-based regime that regulates the Antarctic, a region with a very similar environment. As such, discussions have proceeded as to whether the Arctic is in need of a new legal regime, and whether the Antarctic treaty should be a model. What is truly needed is structure, and regardless of which shape the future Arctic legal regime takes, the most important aspect is that the existing “Arctic Council” must take into consideration the geographical and environmental impacts of climate change and supplement a comprehensive legal order. It is not the single concern of the “Arctic Council” to consider and supplement a legal order, but it should be a global consideration to work hand in hand with the Council to implement this order. If the shipping industry is to provide support, the “Arctic Council” will need to provide further clarification concerning many questions, amongst of which one is, how this comprehensive legal order will correctly balance environmental governance and international trade.},
  author       = {Matin, Tafsir},
  keyword      = {Soft law,Hard law,Arctic Council,strict liability,absolute liability,zero-discharge policy,Commercial implications,Geographical impacts,Environmental impacts,Climate Change,Arctic States,Intercross,Balancing interests,New legal regime,Multilateral agreements,Joint contingency plans,Arctic national legislations,International Conventions.},
  language     = {eng},
  note         = {Student Paper},
  title        = {Geographical and Environmental Impacts of Climate Change in the Arctic Legal Regime: Towards a Comprehensive Legal Order for Balancing Environmental Governance and International Trade & Commerce Interests},
  year         = {2012},
}