Arctic Region

• Author: Peter H. Oppenheimer and Brian Israel
• Pages: 933-962

CHAPTER 47

Arctic Region

PETER H. OPPENHEIMER AND BRIAN ISRAEL*

The Arctic, unlike the opposite pole,1 is not the subject of a uniform environ-

mental legal regime, or even a precise, internationally agreed legal definition

for all purposes.2 The most basic geographic definition of the region—com-

prising the area above the Arctic Circle, 66° North latitude—encompasses

land territory of Canada, Denmark, Finland, Iceland,3 Norway, Sweden, the

Russian Federation, and the United States. These eight “Arctic States” are the

members of the Arctic Council, the high-level intergovernmental forum for

issues of common interest in the Arctic.4 Five of the Arctic States—Canada,

Denmark (via Greenland), Norway, Russia, and the United States—have

coastal frontage in the Arctic Ocean,5 and thus sovereignty, sovereign rights,

and jurisdiction in maritime zones extending well into the Arctic Ocean.6

However defined, the Arctic region comprises land territory of the Arctic

States, maritime zones of Arctic Ocean coastal states, and high seas areas.

Thus, while the region shares common environmental dynamics and chal-

lenges, the legal landscape is a complex latticework of international and

national laws in which the applicable law is often highly location-dependent.

The Arctic environment is of paramount importance to the region’s

approximately four million inhabitants,7 many of whom subsist on local fish

and mammals.8 Environmental protection imperatives are therefore balanced

with the needs of Arctic inhabitants for subsistence, economic development,

and maintenance of traditional ways of life. The region and its inhabitants

are disproportionately affected by long-range pollution. Persistent organic

pollutants (POPs) and heavy metals such as mercury carried to the Arctic

from lower latitudes by air and ocean currents, as well as rivers, are found

in high concentrations in Arctic fish and marine mammals, and the indige-

nous populations that subsist on them.9

The global relevance of the Arctic environment is growing as the effects

of climate change on the Arctic are felt within and beyond the region. Changes

in the region’s environmental parameters such as ice cover “that affect the

earth’s energy balance and circulation of the oceans and atmosphere, may

have profound impacts on regional and global climates.”10 The diminishing

*The views expressed are personal and do not necessarily reflect those of the U.S. govern-

ment.

933

sea ice is rendering increasing swaths of the Arctic seasonally accessible,11

presenting opportunities for new shipping routes and hydrocarbon resources

development.12 With these opportunities come risks, including local pollution

as a result of both emerging shipping and oil and gas activities.13

I. Interplay of International Law

and National Laws of Arctic States

Of central importance to environmental law in the Arctic is the interplay of

international law and the national laws of the Arctic States. In most instances,

within the presently accessible Arctic, the applicable legal standards are

found in the national laws and regulations of the Arctic States.14 However,

these national environmental laws must be consistent with applicable inter-

national law, and in fact many such national laws are enacted pursuant to, or

in implementation of, international law. What follows is a concise taxonomy

of the international law most relevant to the practice of environmental law in

the Arctic region—with particular attention given to emerging activities in

the Arctic, such as offshore oil and gas development and shipping—and

important actors to watch in the development of law and policy applicable

to these activities.

A. Who Regulates Which Areas

of the Arctic Marine Environment

Although the jurisdiction of the Arctic States to regulate the environment

within their land territory and internal waters is relatively straightforward,

it becomes more complex in the marine areas of the Arctic. The law of the

sea defines the rights, duties, and jurisdiction of the Arctic coastal states in

the marine areas appurtenant to their coastlines. The applicable legal frame-

work is the United Nations Convention on the Law of the Sea (UNCLOS), to

which four of the five Arctic Ocean coastal states are party, and much of

which the fifth state—the United States—recognizes as customary interna-

tional law.15 As relevant here, UNCLOS (1) governs where and how Arctic

Ocean coastal states may prescribe and enforce national environmental laws,

and (2) defines the rights of Arctic Ocean coastal states to explore, exploit,

manage, and conserve natural resources in the water column and on the sea

floor and its subsoil in various parts of the Arctic.

1. Jurisdiction to Prescribe and Enforce National Environmental Laws

The jurisdiction of the Arctic Ocean coastal states, acting in that capacity, to

prescribe and enforce environmental laws against foreign vessels extends, in

varying degrees, as far as 200 nautical miles from shore. UNCLOS divides

ocean and coastal waters into zones to which the regulatory authority of

coastal states corresponds; in general, this authority is most robust in the

waters closest to land.16 The sovereignty of a coastal state extends throughout

its territorial sea—a belt of water up to 12 nautical miles from shore—subject

934 INTERNATIONAL ENVIRONMENTAL LAW