The Arctic region has been a part of the resource race for a while now with developing countries like India and China also establishing their research bases in the high north.  Over the past four decades, the regions of Arctic have warmed about four to seven times faster than the global average. One important facet of the Arctic Legal Regime is the application of UNCLOS (United Nations Conventions on Laws of the Sea) over the Central Arctic Ocean or the Arctic High Seas.  making the Arctic a quasi-global common. Among all the Eight Arctic States, the United States is  the only one which  is not even a signatory to the same.

Overfishing, oil and gas drilling, an increasing number of mines, and the expansion of the nuclear industry are some of the many environmental issues the Arctic faces. The increase in the emission of greenhouse gases and the consequent rise in global temperatures eventually boils down to the melting of the Arctic. This blog post explores why this is happening even after a plethora of agreements and well-planned strategies and what more can be done to mitigate these effects.

Imbibing the Precautionary Principle through Environmental Impact Assessments

The Precautionary Principle is often discussed in the context of the Artic environment protection regime. Unlike the Antarctic legal regime, the Arctic Environmental Protection Strategy (AEPS) does not refer to the regulation of mining activities. Furthermore, a 2019 report revealed the need for broader and stricter mining regulations in the Arctic given the environmental risks that have not been very well attended to. The other side to this is the extraction of critical raw materials which facilitate the global green transition as they are essential for technologies like renewable energy installations. Therefore, unlike the Antarctic where there is a ban on mining under the Environmental Protection Protocol, a blanket ban on mining activities in the Arctic seems unlikely. In such a situation, the Precautionary Principle manifested in the form of Environmental Impact Assessments can help mitigate any adverse effects.

The Arctic Monitoring and Assessment Programme (AMAP) places this task upon the shoulders of Arctic states to calculate the potential environmental impact of the developmental activities. When it comes to the Arctic High Seas, the UNCLOS provides for assessment of potential environmental implications in the high seas, the need of EIAs has also been reiterated and actualised in the commendable new High Seas Treaty. However, the treaty has not yet been adequately ratified with a ratio of only 21 out of 112 signatories. Furthermore, the impact assessment provision is being criticised for not addressing the ground reality of unplanned projects and the discrepancy between national and international frameworks when it comes to assessment.

Recently, the Norwegian government was trying to issue licenses for deep sea bed mining in the Norwegian Continental Shelf which also led to opposition from a coalition of 32 countries and a resolution from the EU parliament expressing concern and calling for measures. An agreement on guidelines can be devised by the Arctic Council and the observer states for a comprehensive EIA regime for the Arctic high seas particularly listing the specific lookouts. A thorough analysis of the AMAP reports can be a significant basis for such formulation. However, owing to the same falling under international jurisdiction, a joint effort from the legal and technical commission of the Council established by UNCLOS is fitting. The AEPS also mentions its implementation to be done in accordance with UNCLOS, thereby establishing a link between the two. Furthermore, this is not the first time the Arctic Council will provide a framework for the high seas, as an agreement to prevent unregulated fishing in the Arctic High Seas entered into force in 2021. Devising such a checklist will make the assessment specifically tailored to the Arctic region and thereby more accurate. Therefore, a joint endeavour between the UNCLOS and the Arctic Council providing a multilateral agreement constitutes a potential solution to this conundrum and ensures a wider applicability across the globe.

Why a Collaborative International Effort is most Significant of All?

For a legitimate predictive analysis of the Arctic environment, the relevance  of international environment conventions is the most significant factor. The European Union identified black carbon emissions as the major culprit behind Arctic warming and in their 2021 report concerning the Overview of EU actions in the Arctic and their impact. While the report mentions the 1979 Convention on Long-Range Transboundary Air Pollution in the context of black carbon emissions, it is to be noted that this convention only has 32 signatories and 51 parties with the top black carbon emitters not even making the list. Creation of a multilateral trust for the fruition of Arctic environmental goals will help in mitigation of any financial impediments. The management of this fund may be done by the Arctic Council for the sovereign regions and by a committee constituted under UNCLOS for the Arctic High Seas.

The Arctic region is not devoid of jurisdictional controversies and territorial claims. This might function as a major impediment in the application of environmental legal frameworks. The formulation of a new Arctic Treaty, partly modelled after the successful Antarctic Treaty seems like an optimal solution to many. Under the Antarctic Treaty System, a strict liability is imposed on the operators if they fail to take a prompt and effective response action or in cases of environmental emergencies. If a new Arctic Treaty is formed in future, a similar provision is necessary for hardening this soft law of the Arctic in particular  the Central Arctic Ocean. Having such an Arctic Treaty might also resolve the gaps that are currently pointed out in the Polar Code including underwater noise pollution, and marine plastic litter among others. An optimal solution was also expressed by the IUCN which recommended the introduction of Arctic Protocols to various conventions. There is a need for global actions that go beyond regional agreements without placing an over-reliance on the Arctic Council. Recent dialogue in COP29 on Cryosphere underpinned its global significance and correlation. The need is already realised, if change has to be made, it has to be manifested in the form of global initiatives and effective implementation.

Diya Gaur is a penultimate B.A.LL.B. (Hons.) student at Rajiv Gandhi National University of Law, Punjab, India with a keen interest in International Law, Environmental law and Criminal Law. 

Read more about this and related topics in the Asian Journal of International Law.