ARCTIC INDIGENOUS COMMUNITIES AND ANTARCTIC ICEBERGS AS SUBJECTS OF INTER-LEGALITY.

• Author: Hogic, Nedim

1. INTRODUCTION 106 II. INTER-LEGALITY 108 III.NEGATIVE INTER-LEGALITY: THE CASE OF ARCTIC INDIGENOUS COMMUNITIES 113 A. Background 113 B. Inter-legality in the Case Law Regarding the 116 Indigenous Population of the Arctic 1. The Seal Ban Case 118 2. The Cases Concerning the Usage of Traditional Lands before the ECtHR 119 3. The lnuit and Athabaskan Petitions before the Inter-Amcrican Commission of Human Rights 121 C. Indigenous People as a Subject 123 of Negative Inter-legality IV.POSITIVE INTER-LEGALITY: THE CASE OF ANTARCTIC ICEBERGS 125 IN THE HIGH SEAS A. Background 125 B. Icebergs as a Subject of Inter-legality 127 C. Icebergs as a Subject of Positive Inter-legality 130 D. Legal Implications of Considering Icebergs as 133 Subjects of Positive Inter-legality V. CONCLUSION 135 I. INTRODUCTION

   In the beginning of the twenty-first century, emerging climate and societal concerns regarding resources, security, population and maritime traffic stimulated a renewed interest in the polar regions. (1) This renewed interest resulted in an immense number of publications on different issues related to the polar regions from various angles, adding further knowledge to the existing literature. (2) This article seeks to contribute to the existing body of knowledge by examining specific governance issues surrounding the Arctic and the Antarctic from a legal perspective. The Arctic is a place of contested governance claims amongst the Arctic countries,' the Arctic Council, (4) the international legal regime of the sea, (5) the initiatives to elevate the Arctic as a tool for mobilization against climate change (6) and the epistemic communities legitimizing different state practices. (7) The Antarctic, on the other hand, is a condominium whose governing regime was established by states via an international treaty--the Antarctic Treaty System (ATS). This regime has also faced contested governance claims due to the nature of the provisions elaborated." International lawyers have criticized both situations; while some praised the Antarctic treaty as a model for the Arctic, others produced various proposals for filling this void. (9) Scholars argued that the existing legal regimes, for example, the United Nations Convention on the Law of Sea (UNCLOS), coupled with the existing regional governance regimes such as the Arctic Council, are adequate for an efficient Arctic governance. (10) Likewise, researchers criticized the existing legal framework governing the Antarctic, finding that it does not provide for sufficient environmental protection or is not inclusive as it does not provide for participation of more nations other than those party to the Antarctic Treaty. (11)

   This paper, we trust, gives weight to neither of the approaches. Instead, it offers a reconceptualization of some of the overlaps of existing regimes governing the territories and the maritime zones by applying a concept of inter-legality developed in both sociology and legal theory. We believe that this approach allows us to explore two increasingly important legal issues of international law whose importance will increase as the consequences of climate changes intensify: iceberg harvesting and protection of the rights of the indigenous population. Both cases call for an integration of the legal perspectives governing them. We argue that this can be achieved through inter-legality; in the case of the protection of rights of the indigenous population primarily by adjudicative and policy means and, in the case of iceberg harvesting, through both policy and approximation of the two regimes applicable. Currently, the states that do not see any benefits from application of the existing regimes contest them; others use them as means for protecting their interests. For instance, China declared itself a near Arctic state seeking to get involved in the governance matters in the Arctic region in the framework of its Polar Silk Road Vision; while developing countries are calling for considering the Antarctic as a common concern of humankind. (12)

   In this paper, we explain the concept of inter-legality, its development in the legal theory, and its relevance for the Arctic and Antarctic matters. We argue why we believe this to be an original concept that offers a vantage point for the examination of the widely discussed overlap of legal regimes and unresolved concerns regarding different 'polar issues.' We proceed to examine two case studies: the right to the exploitation of icebergs in the high seas, also known as ice harvesting, and a study concerning the protection of rights to environmental protection and habitat initiated by the indigenous populations. We find that the application and understanding of the existing legal framework produces different outcomes in the two case studies conducted. We introduce the concepts of positive and negative inter-legality based on these differences. The novelty that we bring to the outlook on polar legal and governance affairs goes beyond acknowledgements of legal pluralism and fragmentation of international law in the polar regions. We use inter-legality to offer possibilities for the integration of some aspects of legal fragmentation existing in the polar regions. The objective of the authors is to highlight the existence of various positive and negative scenarios that can occur when a clash of different international regulatory frameworks takes place. While some clashes lead to lack of clarity concerning the rules that can apply, others lead to a scenario where the rules clashing offer a new opportunity because of the synergies created through the clashing of regulatory framework provisions. We do this primarily by taking the vantage point of the cases in question" and accounting for the different rules that the overlapping regimes produce. We conclude by arguing that the two case studies clearly support not only a need for increased awareness for the polar regions and legal problems arising therefrom, but also a possibility that international law and international environmental law will not necessarily continue to fragment, and that the bridging of fragmentation is possible if all contested legalities of a case are taken into account. There are temporal and structural differences between the two cases that we present. On the one hand, the case of protecting the rights to environmental protection and habitat initiated by the indigenous populations provides a more retrospective lens on the clash between human rights and domestic regimes, as well as on the questions of evolution of interpretation of different aspects of human rights, such as the right to culture and environment. On the other hand, the iceberg harvesting case is more of a prospective thought exercise on balancing legal obligations from multiple international conventions. Structurally, the case of indigenous populations examines the existing case law; the case of iceberg harvesting focuses more on the possibilities of applying existing legal regimes to the future practices of iceberg harvesting. What unifies the two is not only the perspective of applied intcr-lcgality but also the importance of underlying environmental protection that stem from the analysis.

   11. INTER-LEGALITY

   Fragmentation of international law is a well-known phenomenon that came as a result of globalization, development of specific legal regimes that often competed with each other, and a recognized need for specialist legal solutions to global governance. (14) The debate over fragmentation has now largely passed the peak it reached in the beginning of this century with fragmentation accepted as a common feature of international law. (15) This did not mean that the concept is now understood as the only possible outcome of the ever-growing body of international law. Inconsistencies and inequalities that the concept brought caused anxieties and uneasiness in many an academic scholar. (16)

   The realization that we live in a legally fragmented world was not, however, an exclusive domain of thinking of international lawyers at the turn of the centuries. A strain of academic thinking that focused on the meetings between national and traditional law understood that multicultural and pluralist settings give rise to coexistence of different legal orders and that these meetings are not necessarily a source of contention but also cooperation. (17) It was from this tradition that the concept of inter-legality was developed.

   Used first as a concept by the Portuguese social scientist Bonaventura de Sousa Santos, inter-legality was conceived as a situation in which a subject can choose amongst different legal regimes that apply to his past or future behaviour.'" Unlike forum shopping, inter-legality is not only about the jurisdictional conflicts per se, or the meetings of separate orders as different entities, (19) but is envisaged as a position of a postmodern legal subject that docs not fear the fragmentation of (international) law. Rather it views fragmentation as an opportunity to claim and/or protect the rights that one has or ought to have. The concept has been used in connection with general indigenous legal systems studies in order to denote the meeting of two (or more) legal regimes: that of the states that have expanded into the territory inhabited by an indigenous population and the indigenous legal system. (20) The main objective of this concept is to provide the ability to 'explain various spatial scales of law and regulatory phenomena.' (21) According to de Sousa Santos: "We live in a time of porous legality or legal porosity, multiple networks of legal orders forcing us to constant transitions and trespassing. Our legal life is constituted by an intersection of different legal orders, that is, by inter-legality. Inter-lcgality is the phenomcnological counterpart of legal plurality." (22)

   Building on the influential work of de Sousa Santos, scholars of pluralist strains expand the...