searching for synergies in international governance …1. introduction 7 2. major governance systems...

* Doctor of Laws (LLD), Associate Professor, Department of Law, Rajshahi University (on leave of absence). Presently serving as a researcher at the Northern Institute for Environmental and Minority Law, Arctic Centre, University of Lapland, Finland. The author expresses his appreciation to the editorial board of the McGill International Journal for Sustainable Development Law and Policy for their com-ments on an earlier version of this article.

A number of governance systems aim to promote the environmental protection and well-being of residents of the circumpolar North. The cre-ation of these governance systems has, however, presented several challenges in international law from the viewpoint of the conceptual dis-course. Although these governance systems have

functioned within the international community for a considerable period of time, none of them constitutes a formal international organization. This article focuses on their legal positions, and makes suggestions for their improved efficiency and performance, possibly by enhancing coop-eration between the governance systems.

Plusieurs systèmes de gouvernance en cours d’utilisation visent à promouvoir la protection de l’environnement et le bien-être de la région circumpolaire. La création de ces systèmes de gouvernance a toutefois présenté quelques défis en droit international, du point de vue du dis-cours conceptuel, puisqu’aucun de ces systèmes de gouvernance n’est une organisation interna-

tionale officielle même si elles ont été fonction-nelles pendant une importante période de temps. Cet article se concentre sur leur positionnement juridique, tout en énonçant des propositions pour améliorer leur efficacité et leur perfor-mance, possiblement en renforçant la coopéra-tion entre les systèmes de gouvernance.

Searching for Synergies in International Governance Systems Developed in the Circumpolar North

Waliul Hasanat*

1. INTRODUCTION 72. MAJOR GOVERNANCE SYSTEMS DEVELOPED IN THE CIRCUM-

POLAR NORTH10

2.1 The Arctic Council 102.2 The Barents Euro-Arctic Council 142.3 The Barents Regional Council 182.4 The Northern Forum 19

3. LEGAL STATUS OF THE GOVERNANCE SYSTEMS IN THE NORTH

22

3.1 The Arctic Council 223.2 The Barents Euro-Arctic Council 233.3 The Barents Regional council 243.4 The Northern Forum 25

4. REASONS FOR ESTABLISHING SOFT-LAW FORMS OF GOVER-NANCE

27

4.1 The Northern Agenda 274.2 The Local Inhabitants 284.3 Historical Reasons 314.4 National Interests 324.4 Differences in Political Will 33

5. THE INFLUENCE OF THE GOVERNANCE SYSTEMS ON IN-TERNATIONAL LAW

34

6. INTERCONNECTIONS BETWEEN THE SELECTED GOVER-NANCE SYSTEMS IN THE NORTH

37

7. CONCLUSION 39

Hasanat Volume 9: Issue 2 7

1. INTRODUCTION

Ongoing physical and environmental changes in the northernmost part of the globe have created both new opportunities and significant pressures on both the govern-ments and inhabitants of the North. Over the past two decades, various forms of

governance systems have actively promoted the well-being of residents in the region, and have opposed threats to its environment.1 The Arctic Council (the “AC”), the Barents Euro-Arctic Council (the “BEAC”), the Barents Regional Council (the “BRC”), and the Northern Forum (the “NF”) are examples of such systems. They operate at different levels of governance (e.g., nation-state, sub-national, and groups of indigenous peoples), possess distinct, progressive, and innovative characteristics, and do not always follow the rules applicable for classical inter-national organizations as articulated in public international law.

These selected international governance systems have become full-fledged structures, with a set of self-created rules and normative guidelines that their members have followed for a cosiderable time. Multiple studies have examined the diverse aspects of the AC2 and the

1 The term “governance systems” is used in this article to designate selected international cooperative forums which: include governments of either national or sub-national levels as members, maintain their own offices, have a distinct policy-making body, and follow specific procedures and practice formalities (e.g., secretariat, ministerial meetings, subordinate organs, etc).

2 Oran R Young, “If An Arctic Ocean Treaty Is Not the Solution, What Is the Alternative?” (2011) 47:243 Polar Record 327 at 327–334; Md Waliul Hasanat, “Towards Model Arctic-Wide Environmental Cooperation Combating Climate Change” (2009) 20:1 YB Int’l Env L 122 [Hasanat, “Towards Model”]; Timo Koivurova, “Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance” (2010) 46:237 Polar Record 146 [Koivurova, “Limits and Possibilities”]; Timo Koivurova, “Alternatives for an Arctic Treaty – Evaluation and a New Proposal” (2008) 17:1 RECIEL 14; Olav Schram

8 JSDLP - RDPDD Hasanat

BEAC,3 whilst comparatively lesser focus has been given to the BRC4 and the NF.5 The region

Stokke, “Protecting the Arctic Environment: The Interplay of Global and Regional Regimes” (2009) 1:1 The Yearbook of Polar Law 349; David Leary, “Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?” (2008) 17:1 RECIEL 41; Julia Jabour & Melissa Weber, “Is it Time to Cut the Gordian Knot of Polar Sovereignty?” (2008) 17:1 RECIEL 27; Timo Koivurova & David L VanderZwaag, “The Arctic Council at 10 Years: Retrospect and Prospects” (2007) 40:1 UBC L Rev 121; Hans Corell, “Reflections on the Possibilities and Limitations of a Binding Legal Regime” (2007) 37:4 Envtl Pol’y & L 321 at 321–4; Geir Hønneland & Olav Schram Stokke, “Introduction” in Olav Schram Stokke & Geir Hønneland, eds, International Cooperation and Arctic Governance: Regime effectiveness and northern region building (Oxon: Routledge, 2007) 1; ECH Keskitalo, Negotiating the Arctic: The Construction of an International Region (New York: Routledge, 2004); David VanderZwaag, Rob Huebert & Stacey Ferrara, “The Arctic Environmental Protection Strategy, Arctic Council and Multilateral Environmental Initiatives: Tinkering while the Arctic Marine Environment Totters” (2001) 30:2 Denv J Int’l L & Pol’y 131 [VanderZwaag, Huebert & Ferrara, “AEPS”]; Monica Tennberg, The Arctic Council: A Study in Governmentality (Rovaniemi: University of Lapland, 1998); David Scrivener, “Arctic environmental cooperation in transition” (1999) 35:192 Polar Record 51; Donald Rothwell, The polar regions and the development of international law (Cambridge: Cambridge University Press, 1996); Oran R Young, Creating regimes: Arctic accords and international governance (Ithaca: Cornell University Press, 1998) [Young, Creating regimes]; Oran R Young, “Governing the Arctic: From Cold War Theater to Mosaic of Cooperation” (2005) 11:1 Global Governance 9 [Young, “Governing the Arctic”]; Oran R Young, “The Structure of Arctic Cooperation: Solving Problems/Seizing Opportunities” (Paper prepared at the request of Finland in preparation for the fourth conference of Parliamentarians of the Arctic Region, Rovaniemi, 27–29 August 2000, and the Finnish chairmanship of the Arctic Council during the period 2000–2002), online: Conference of Parliamentarians of the Arctic Region <http://www.arcticparl.org/files/images/conf4_sac.pdf>.

3 Md Waliul Hasanat, “A Unique Arrangement of Soft-law Cooperation in the Barents Region” in Monica Tennberg, ed, Politics of Development in the Barents Region (Rovaniemi: Lapland University Press, 2012) 66 [Hasanat, “Unique Arrangement”]; Frank Möller & Samu Pehkonen, “Discursive Landscapes of the European North” in Frank Möller & Samu Pehkonen, eds, Encountering the North: cultural geography, international relations and northern landscapes (Aldershot: Ashgate Publishing, 2003) 1; Pertti Joenniemi, “The Barents, Baltic and Nordic Projects: A Comparative Analysis” in Geir Flikke, ed, The Barents Region Revisited (Oslo: Norwegian Institute of International Affairs, 1998) 9; Alexander Sergounin, “The Barents Regional Cooperation and the Russian Security Discourse” in Geir Flikke, ed, The Barents Region Revisited (Oslo: Norwegian Institute of International Affairs, 1998) 48; Mark Monsma, “Winds of Change within the Barents Organization: An Institutional Analysis of Transnational Regionalization in the North” (Working Paper No 10, CERUM, 1995); Johan Eriksson, “Security in the Barents Region: Interpretations and Implications of the Norwegian Barents Initiative” (Working Paper No 5, CERUM, 1995); John Kvistad, The Barents Spirit: The process of regionalization and Norwegian foreign policy in the Barents Euro-Arctic Region (Oslo: Oslo University Press, 1994); Ulf Wiberg, “Cooperation in the Barents Region” in Jan Åke Dellenbrant & Mats-Olov Olsson, eds, The Barents Region: Security and Economic Development in the European North (Umeâ, Sweden: CERUM, 1994) 27; Nils Engstad, “Developing the Barents Sea Region: Opportunities and Risks” in Jan Åke Dellenbrant & Mats-Olov Olsson, eds, The Barents Region: Security and Economic Development in the European North (Umeâ, Sweden: CERUM, 1994) 1.

4 “The Barents Regional Council’s Position to the EU Baltic Sea Strategy”, online: European Commission <http://ec.europa.eu>.

5 Md Waliul Hasanat, “International cooperation in the Northern Forum: emerging new norms in international law?” (2012) 48:247 Polar Record 372 [Hasanat, “International cooperation”]. See Richard Langlais, “Arctic co-operation organisations: a status report”, at 23–28, online: Conference of Parliamentarians of the Arctic Region <http://www.arcticparl.org/_res/site/File/static/conf4_


has gained increasing importance in international politics day by day,6 due to accelerating climate change occurring in the region.7 A growing number of states and actors outside of the northern regions are showing interest in joining these governance systems. However, existing governance systems in the region with broadly similar objectives8 do not seem to meet the present needs of the inhabitants of the North. This matter therefore warrants scholarly atten-tion that may determine how better results may be achieved by such systems. This research includes examining whether there is a need for multiple governance systems with similar objec-tives and that involve common actors; how the systems react to globally oriented challenges (e.g., environmental protection and climate change) posed in the region; the nature of obliga-tions that they create for associated entities from the viewpoint of both international law (abid-ingness) and countering the practical challenges (appropriateness) faced by the residents in the region; and so on. An evaluation of the relationships between these governance systems and the way in which their activities overlap may improve our understanding of these issues. However, no significant study has yet been conducted to consider these international governance systems collectively as platforms to promote the well-being of northern inhabitants.9

The main objective of this article is to study these selected international governance systems from the perspective of strengthening their institutional frameworks by enhancing synergies between them—an idea that was promoted at the Rio+20 conference.10

langlais.pdf>. See also Md Waliul Hasanat, “Definitional Constraints Regarding Soft Law” (2007) 1&2 AALCO Quarterly Bulletin 8 at 28–30 [Hasanat, “Definitional Constraints”].

6 See Christopher S Browning, ed, Remaking Europe in the margins: Northern Europe after the enlargements (Aldershot: Ashgate Publishing, 2005).

7 The potential consequences of climate change in the Arctic include, inter alia, the melting of sea ice, the opening of new sea routes, and increased access to marine resources that were previously inaccessible. These changes may lead to an increase in shipping and economic activities, and also hamper biodiversity and the traditional livelihood of the northern indigenous peoples. Climate change in the Arctic also impacts negatively upon situations that involve the rest of the world and has thus given the issue a global character. The coastal states of the Arctic Ocean want to exercise their rights to increased continental shelves; they are also aware of the shipping, fishing and exploitation of resources by other states in the changing ecosystem of the Arctic Ocean. See Intergovernmental Panel on Climate Change, Climate Change 2007: Synthesis Report – An Assessment of the Intergovernmental Panel on Climate Change (Valencia, Spain: IPCC, 2007) at 30-31, 33, 46, 52, online: <http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr.pdf> [AR4 Synthesis Report]; Arctic Monitoring and Assessment Program (AMAP), Arctic Climate Issues 2011: Changes in Arctic Snow, Water, Ice and Permafrost (AMAP, 2011) at v, vi,vii, 3,5,10, online: AMAP <http://www.amap.no/documents/doc/arctic-climate-issues-2011-changes-in-arctic-snow-water-ice-and-permafrost/129> [AMAP SWIPA 2011].

8 Md Waliul Hasanat, “The Role of International Governance Systems in Protecting the Arctic Environment: Examining Climate Change Policy” (2012) 4 Yearbook of Polar Law 561 [Hasanat, “Role of International Governance”].

9 But see Md Waliul Hasanat, “Diverse Soft-Law Cooperation Forms in the Arctic – Do They Complement or Contradict Each Other?” (2012) 14:3 Int’l Comm L Rev 273; Oran R Young, “Whither the Arctic? Conflict or cooperation in the circumpolar north” (2009) 45:232 Polar Record 73; Oran R Young, “Can the Arctic Council and the Northern Forum find common ground?” (2002) 38:207 Polar Record 289 [Young, “Common ground”]. See also Md Waliul Hasanat, Soft-Law Cooperation in International Law: The Arctic Council’s Efforts to Address Climate Change (Rovaniemi: Lapland University Press, 2012) [Hasanat, Soft-Law Cooperation in International Law].

10 The key objectives of the conference included strengthening the institutional framework for sustainable development initiatives by enhancing synergies between existing cooperative institutions (United Conference on Sustainable Development, “The United Nations Conference on Sustainable Development”, online: United Nations Conference on Sustainable Development <http://www.uncsd2012.org>).


Following the introductory section, Part 2 provides a brief account of each governance system. Part 3 examines the legal status of each system, and Part 4 analyzes the reasons for forming distinct types of governance systems in the circumpolar North other than those of formal international organizations. Part 5 explores their influence on international law and discusses the importance of studying such types of governance systems from the viewpoint of international law. Part 6 explains the interconnections between the four systems of governance and how illuminating their relationships could better serve to assess the potential of these gov-ernance systems in the future. The final part draws conclusions on the subject and examines whether synergies exist between the studied governance systems operating in the circumpolar North.

2. MAJOR GOVERNANCE SYSTEMS DEVELOPED IN THE CIRCUMPOLAR NORTH

There are currently a number of international governance systems operating in the circumpolar North. They aim to address local issues, generally related to protecting the region’s environ-ment which is vulnerable to economic activities and climate change.11 The four systems of gov-ernance chosen for study here employ diverse operational systems, which are described below.

2.1 The Arctic Council

The eight Arctic states—Canada, Denmark, Finland, Iceland, Norway, Sweden, the Russian Federation (“Russia”), and the United States—formed the AC in 1996, with the adoption of the Ottawa Declaration.12 The Ottawa Declaration replaced an earlier governance system in the circumpolar North among the same states—the Arctic Environmental Protection Strategy (“AEPS”), created in 1991.13

The main objective of the AC is to promote sustainable development and environmental protection in the region.14 The AC has granted a special position to Arctic indigenous commun-ities with the status of Permanent Participant (“PP”).15 This is a comparatively new approach to an international governance system in that it allows non-state actors participating in the decision making process to sit with states’ representatives within the AC (although the former

11 Arctic Council, Arctic Marine Strategic Plan (Arctic Council, 2004) at 3-4, online: Arctic Council <http://www.pame.is/images/stories/AMSP_files/AMSP-Nov-2004.pdf> [AMSP].

12 Declaration on the Establishment of the Arctic Council, Ottawa, Canada, 19 September 1996 [Ottawa Declaration].

13 During the Cold War era, it was difficult to link all of the Arctic states within a single cooperative forum, mainly due to the existence of two superpowers, the Soviet Union and the United States. However, Mikhail Gorbachev made a speech in 1987 in Murmansk concerning the establishment of a nuclear weapon-free zone in northern Europe, limiting naval activities in the sea areas adjacent to northern Europe, the use of Arctic resources in a peaceful manner, conducting scientific research on the Arctic, the cooperation of northern countries for environmental protection, and an openness of the northern sea routes to icebreakers for maintaining escorted passage (Rothwell, supra note 2 at 229–31). This speech inspired Finland to organize a meeting with the representatives from all the Arctic states in 1989 in Rovaniemi, Finland (Hasanat, “Towards Model”, supra note 2 at 124). They met again in 1991 at the same place, but also with representatives of various indigenous peoples’ organizations in the region and created the AEPS through the adoption of a declaration (Declaration On The Protection Of The Arctic Environment, 14 June 1991, 30 ILM 1624).

14 Ottawa Declaration, supra note 12, art 1(a).15 The communities with PP status are the Inuit Circumpolar Council, the Saami Council, the Russian

Arctic Indigenous Peoples of the North (“RAIPON”), the Aleut International Association, the Arctic Athabaskan Council, and the Gwich’in Council International.


are non-voting members). However, a PP is entitled to attend all meetings organized under the AC, and has the right to raise points of order throughout discussions on various issues to be immediately decided upon by the chair.16

The AC has granted observer status to several non-Arctic states and organizations—both governmental and non-governmental—in order to involve the global community in the activ-ity of the AC.17 An observer is entitled to attend all open meetings and contribute to develop-ment projects operated under the AC. Presently, twelve states,18 nine intergovernmental organizations,19 and eleven non-governmental organizations20 have observer status within the AC. In addition to these observers, the European Union currently acts as an ad hoc observer until a decision is made on the European Commission’s request for full observer status to the AC.21Although the observer states lend support to the work of the AC, the AC has no control over them. Given that observer states often fund the AC’s projects, they are able to invoke considerable influential capacity, even at the policy-making level. Another issue is that some states hesitate to acknowledge the superior position of indigenous peoples (who have PP status) compared to that of the state observers within the hierarchy of the AC. This tension has led indigenous groups to worry about outside interference in their regional issues. Considerations such as these have led the AC to adopt an observer manual that articulates the roles and lim-itations of observers.22

Rules regarding the AC’s internal functions and policy-making decisions are made at a biennial meeting of foreign affairs ministers of the Arctic states.23 Recently, the AC introduced a meeting of deputy ministers between two ministerial meetings to lessen the gap in com-

16 Arctic Council, Arctic Council Rules of Procedure, adopted by the Arctic Council at the First Arctic Council Ministerial Meeting (Iqaluit, Canada, 17–18 September 1998), revised by the Arctic Council at the Eighth Arctic Council Ministerial Meeting (Kiruna, Sweden, 15 May 2013), art 12 [Arctic Council Rules of Procedure].

17 Ottawa Declaration, supra note 12 at para 3. 18 France, Germany, Poland, Spain, the Netherlands, the United Kingdom, China, India, Japan, Italy,

Singapore, and the Republic of Korea are observers. (Arctic Council, “Observers” (27 April 2011) Arctic Council, online: Arctic Council <http://www.arctic-council.org/index.php/en/about-us/arctic-council/observers#> [Arctic Council, “Observers”]).

19 The intergovernmental organizations are the International Federation of Red Cross and Red Crescent Societies, the International Union for the Conservation of Nature, the North Atlantic Marine Mammal Commission, the Nordic Council of Ministers, the Nordic Environmental Finance Corporation, the Standing Committee of Parliamentarians of the Arctic Region, the United Nations Economic Commission for Europe, the United Nations Development Programme, and the United Nations Environment Program (ibid).

20 The non-governmental organizations are the Advisory Committee on Protection of the Seas, the Arctic Circumpolar Gateway, the Association of World Reindeer Herders, the Circumpolar Conservation Union, the International Arctic Science Committee, the International Arctic Social Sciences Association, the International Union for Circumpolar Health, the International Work Group for Indigenous Affairs, the Northern Forum, the University of the Arctic, and the World Wide Fund for Nature (ibid).

21 Ibid. See also Arctic Council, Kiruna Declaration, Eighth Ministerial Meeting of the Arctic Council (15 May 2013) [Kiruna Declaration].

22 Arctic Council, “Arctic Council Observer Manual for Subsidiary Bodies”, online: Arctic Council <http://www.arctic-council.org>.

23 Arctic Council Rules of Procedure, supra note 16, arts 7, 15.


munication at the political level.24 Both ministers and deputy ministers direct the Senior Arctic Officials (“SAO”s)25 in the implementation of their political commitments.

The AC performs its activities through different Working Groups (“WG”s) comprising representatives drawn mainly from the national ministries, including other government bodies and research institutions of member states, and from the PPs. Their secretariats are supported voluntarily by individual member states.26 Presently there are six WGs:

1. The Arctic Monitoring and Assessment Program (“AMAP”)

2. Protection of Arctic Marine Environment (“PAME”)

3. Emergency Prevention, Preparedness and Response (“EPPR”)

4. Conservation of Arctic Flora and Fauna (“CAFF”)

5. The Sustainable Development Working Group (“SDWG”)

6. The Arctic Contaminants Action Program (“ACAP”)27

Each of the WGs carries out different activities under the guidance of the SAO, which they report to regularly. In addition to the WGs, the AC has created several Task Forces (“TF”s) and Action Plans to work on specific issues for a limited period of time.28 The Secretariat of the AC is located in Tromsø, Norway.29

24 Arctic Council, Tromsø Declaration, Sixth Ministerial Meeting of the Arctic Council (Tromsø, Norway, 29 April 2009); Arctic Council, “FAQ, Ministerial Meetings”, online: Arctic Council <http://www.arctic-council.org/index.php/en/resources/other-resources/faq>.

25 Each Arctic state designates a senior civil servant responsible for the Arctic affairs of their government. However, SAO meetings include a senior official from each of the Arctic states and PPs’ representatives (Arctic Council Rules of Procedure, supra note 16, art 21). The SAO coordinates, monitors, and guides the subordinate bodies (e.g., WG and Task Force) formed under the AC and receives reports from them. The SAO reports to the AC regularly on the basis of those subordinate bodies’ reports. Additionally, it reviews proposals concerning cooperative activities submitted by the member states or PPs and prepares recommendations on those proposals for AC Ministerial Meetings (ibid, art 24). The AC Ministerial Meetings instruct the SAO to provide a means of addressing individual issues connected with the AC.

26 The AMAP secretariat is located in Oslo, Norway (“Organisational Structure”, online: AMAP <http://www.amap.no/about/organisational-structure>). The PAME secretariat is located together with the CAFF secretariat in Akureyri, Iceland (“Secretariat”, online: PAME <http://www.pame.is/secretariat>; “CAFF International Secretariat”, online: CAFF <http://www.caff.is/secretariat>). The EPPR and ACAP secretariats are situated in Moscow, Russia (“EPPR Chair and Secretariat”, Arctic Council, online: EPPR <http://www.arctic-council.org/eppr/links-contacts/eppr-chair-and-secretariat/>),and the SDWG secretariat is located in Ottawa, Canada (“Sustainable Development Working Group”, Arctic Council, online: SDWG <http://www.sdwg.org/content.php?doc=12>).

27 Arctic Council, “Working Groups” (15 April 2011), online: Arctic Council <http://www.arctic-council.org>.

28 For example, the Task Force for Institutional Issues and Task Force on Search and Rescue (Arctic Council, “Task Forces of the Arctic Council”, (29 December 2011), online: Arctic Council <http://www.arctic-council.org>).

29 In fact, the AC had to wait a long time before a permanent secretariat was established. Originally, the responsibility of providing secretarial support was imposed on the chairing state (Arctic Council, Arctic Council Rules of Procedure, First Arctic Council Meeting (Iqaluit, Canada, 17-18 September 1998) online: Arctic Council <http://www.arctic-council.org/index.php/en/document-archive/category/375-sao-meeting-borrow-oct-2000>) and followed the rules set out in the Arctic Council Rules of Procedure (supra note 16, art 32). The situation evolved in 2006, when three Nordic states (Norway, Denmark,


The AC supplies noteworthy scientific information to policy-makers and Arctic residents, as well as to the public and technical personnel, by producing a number of reports on differ-ent Arctic issues (e.g., environmental protection, climate change, sustainable development, the well-being of the region’s inhabitants, and the adaptation of local people to changed situations).30

Granting observer status to different types of entities has assisted the AC in maintaining close cooperation with other international organizations and institutions, both within and outside of the Arctic region. The AC has also connected national parliamentarians in distin-guished forums, such as the Conference of Parliamentarians of the Arctic Region (“CPAR”).31 In addition to the observer bodies, the AC affirms its support towards many international initiatives and global forums, in particular those with activities relating to environmental pro-tection and sustainable development. For instance, the AC has affirmed its support of the United Nations Framework Convention on Climate Change (“UNFCCC”)32 since its inception, and organizes side events and issues statements during its Conference of Parties. The AC issued a joint statement at the first meeting of the Kyoto Protocol,33 and organized a side event at the UNFCCC 15th Conference of the Parties in Copenhagen in December 2009. In 2011, the AC confirmed the commitment of all Arctic states, together with others, to implement the agreement reached in Cancun and the climate talks in Durban, and urged urgent action to be taken by all parties to achieve the long-term goal of the UNFCCC.34 The expert groups created through the AC’s working groups maintain a high standard of research and are invited by

and Sweden) agreed to share a common secretariat located in Tromsø, Norway for the duration of their chairmanships (2006 to 2012) (Governments of Norway, Denmark, & Sweden, Common Objectives and Priorities for the Norwegian, Danish and Swedish Chairmanship of the Arctic Council 2006–2012 (Arctic Council, 2006)). Subsequently, the idea of establishing a permanent secretariat by 2013 was endorsed by the Nuuk Ministerial Meeting in 2011 (Arctic Council, Nuuk Declaration, Seventh Ministerial Meeting of The Arctic Council (12 May 2011) [Nuuk Declaration]). In 2013, the Tromsø secretariat became the permanent secretariat of the AC (Kiruna Declaration, supra note 21)

30 The reports prepared by the AC are mainly of two types: 1) synthesis or overview reports, made on the basis of key findings and recommendations; or 2) scientific or technical reports, prepared with detailed scientific analysis. However, in preparing such reports, the WGs use data obtained from a combination of modern research and also traditional indigenous knowledge.

31 The first meeting of the Arctic Parliament was held in Reykjavik, Iceland in 1993. Afterwards, CPAR, which has observer status with the Arctic Council, formed in 1996 with the inclusion of the European Parliament. Thereafter, regular meetings were convened in: Yellowknife, Canada in 1996; Salekhard, Russia in 1998; Rovaniemi, Finland in 2000; Tromsø, Norway in 2002; Nuuk, Greenland in 2004; Kiruna, Sweden in 2006; Fairbanks, Alaska in 2008; the European Parliament in Brussels, Belgium in 2010; and Akureyri, Iceland in 2012. The next meeting will be held in Canada in 2014 (“Conferences”, Conference of Parliamentarians of the Arctic Region, online: Conference of Parliamentarians of the Arctic Region <http://www.arcticparl.org/conferences.aspx>).

32 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 UNTS 107, 31 ILM 849 (entered into force 21 March 1994).

33 See UNFCCC Conference of the Parties XI, Statement on Climate Change in the Arctic Region (9 December 2005) Canada, Denmark, Finland, Norway, Russia, Sweden and the United States of America with France, Germany, the Netherlands, Poland, Spain and the United Kingdom of Great Britain and Northern Ireland (Montreal, UNFCCC Conference of the Parties XI) online: Arctic Athabaskan Council <http://www.arcticathabaskancouncil.com/aac/files/climate_change/UNFCCCCOP11.pdf>.

34 Arctic Council, Statement to UNFCCC COP XVII prepared by Canada, Denmark, Finland, Iceland, Norway, Russian Federation, Sweden and the United States of America, online: Arctic Council <http://www.arctic-council.org/images/attachments/extra_information/arctic_council_statement_to_the_cop_xvii.pdf>. See also Nuuk Declaration, supra note 29 at 3.


reputed research institutions to co-produce reports with them. For instance, AMAP and CAFF co-produced a report with the International Arctic Science Committee in 2004 on climate change impacts that drew the attention of many, including some from outside the region.35 In 2011, the United Nations Environment Programme (“UNEP”) /Stockholm Convention Secretariat prepared a collaborative report with AMAP titled The Climate Change and POPs [Persistent Organic Pollutants]: Predicting the Impacts.36

2.2 The Barents Euro-Arctic Council

Five Nordic states—Denmark, Finland, Iceland, Norway, and Sweden—and Russia, together with the then-Commission of European Communities, agreed on a platform seeking to promote sustainable economic and social development in the Barents Region, an area of mili-tary confrontation during the Cold War.37 They formed the BEAC in 1993 by adopting the Kirkenes Declaration.38 The main objectives of the BEAC include the promotion of sustainable economic and social development in the Barents Region.39 All members under the governance

35 Arctic Climate Impact Assessment: Impacts of a Warming Arctic (Cambridge: Cambridge University Press, 2004) [ACIA Report].

36 UNEP/AMAP, Climate Change and POPs: Predicting the Impacts (Oslo: AMAP, 2012) online: Stockholm Convention <http://chm.pops.int/Programmes/GlobalMonitoringPlan/ClimateChangeandPOPsPredictingtheImpacts/tabid/1580/language/en-US/Default.aspx>.

37 The idea of the Barents Region emerged after the end of the Cold War. During the war, there was clear division between two established groups. The United States, Canada, Denmark and Iceland formed one group known as the NATO Arctic Squad. The Soviet Union formed another group with Finland and Sweden—two non-aligned states (Oran R Young, Arctic Politics: Conflict and Cooperation in the Circumpolar North (Hanover: University Press of New England, 1992) at 24)). The United States and Canada termed the situation a “geopolitical urgency” and developed policy to explore the political, socio-economic, and scientific information of the region (Matthew Farish, “Frontier engineering: from the globe to the body in the Cold War Arctic” (2006) 50:2 Canadian Geographer 177 at 182) At the same time, the Soviet Union initiated a degree of scientific cooperation with the adoption of its glasnost policy, subsequently leading to environmental cooperation (Richard Reed, David J Lemak & W Andrew Hesser, “Cleaning up after the Cold War: Management and Social Issues” (1997) 22:3 Academy of Management Review 614; Juan G Roederer, Effect of glasnost and perestroika on the Soviet scientific establishments: relevance to Arctic research (Washington, DC: US Arctic Research Commission, 1991)). For details on global involvement after glastnost, see Johan Galtung and Richard Vincent, Global Glasnost: Toward a New World Information and Communication Order? (Cresskill, NJ: Hampton Press, 1992). Norway initiated regional cooperation in order to counter the awakening of EU interests in the natural resources of the Arctic and to foster relationships with Russia (Young, Creating regimes, supra note 2 at 61; Kvistad, supra note 3 at 118). Subsequently, with the support of Russia, Finland and Sweden for the Norwegian initiative, the Barents Region was officially established (Pertti Pesonen and Unto Vesa, Finland, Sweden and the European Union, Research Report No 77 (Tampere Research Institute, 1998) at 59-60).

38 Declaration of Cooperation in the Barents Euro-Arctic Region Conference of Foreign Ministers in Kirkenes, 11 January 1993, online: BEAC <http://www.barentsinfo.fi/beac/docs/459_doc_KirkenesDeclaration.pdf> [Kirkenes Declaration]. For a brief history of the BEAC, see Finnish Barents Group et al, Barents: The Barents Euro Arctic Council (Helsinki: Ministry for Foreign Affairs: Committee of Senior Officials of the Barents Euro-Arctic Council, 1996).

39 The BEAC introduced the concept of the Barents Region, which initially included the county of Lapland in Finland, the counties of Finnmark, Troms and Nordland in Norway, the counties of Murmansk and Archangel in Russia, and the county of Norrbotten in Sweden (Kirkenes Declaration, supra note 38 at 2). The region subsequently expanded with the inclusion of the Republic of Karelia, the Nenets Autonomous Okrug, Kainu, Oulu, the Vasterbotton Regions, and the Republic of Komi (Barents Euro-Arctic Council, Joint Statement, Second Session of the Barents Euro-Arctic Council (Tromsø, Norway, 14-15 September


system however do not undertake its chairmanship, and the chair rotates between Finland, Norway, Russia, and Sweden, all of whom possess territories within the Barents Region.40

The BEAC has accredited a number of states from outside the region as observers, who contribute to the BEAC’s activities.41 Presently, Canada, France, Germany, Italy, Japan, the Netherlands, Poland, the United Kingdom, and the United States have observer status under the governance system.42 Its central international secretariat is located in Kirkenes, Norway, along with national secretariats in all the main member states except Russia.43

Meetings between the foreign affairs ministers of BEAC member-states constitute its highest decision-making forum, and were held annually until 2001, and every other year since then.44 Ministers of the environment from the BEAC’s member states have convened for

1994) online: BEAC <http://www.barentsinfo.fi/beac/docs/499_doc_Tromsocommunique_1994_e.pdf> [Joint Statement, 1994]; Barents Euro-Arctic Council, Joint Statement, Fourth Session of the Barents Euro-Arctic Council (Petrozavodsk, Russia, 5-6 November 1996) at s 3.1, online: BEAC <http://www.barentsinfo.fi/beac/docs/495_doc_Petrozavodskcommunique_1996_e.pdf>; Barents Euro-Arctic Council, Joint Communique, Sixth Session of the Barents Euro-Arctic Council (Bodo, Norway, 4-5 March 1999) online: BEAC <http://www.barentsinfo.fi/beac/docs/491_doc_communique_1999_e.pdf>; Barents Regional Council, Annual Report 2002-2003 (Barents Euro-Arctic Region, 2003) at 14, online: BEAC <http://www.barentsinfo.fi/beac/docs/2980_doc_arsrapport2002o2003.pdf>). “[T]he Barents Cooperation formed part of the emerging Europe of the Regions transversing the former East West divide and spanning regions from the Black Sea to the Barents Sea” (Joint Statement, 1994, ibid). “The Barents region is characterised by harsh climatic conditions, vulnerable environment and long distances which pose challenges to people and business” (Barents Euro-Arctic Region, The Barents Cooperation (International Barents Secretariat, 2013) at 3, online: BEAC <http://www.barentsinfo.fi/beac/docs/Barents_Cooperation_information_English_October_2013.pdf> [The Barents Cooperation]).

40 Annex to the Kirkenes Declaration: Terms of Reference for the Council of the Barents Euro-Arctic Region, Council of Foreign Ministers (Kirkenes, Norway, 11 January 1993), art 6, online: BEAC <http://www.barentsinfo.fi/beac/docs_tmp/460_doc_AnnextotheKirkenesDeclaration.pdf> [Kirkenes Annex]

41 Ibid, art 11.42 For more information, see BEAC, “Members of the Barents Euro-Arctic Council”, online: Barents Euro-

Arctic Council <http://www.beac.st/in-English/Barents-Euro-Arctic-Council>.43 The Finnish national Barents secretariat is located in Rovaniemi in association with the Regional Council

of Lapland. The Norwegian Barents secretariat is in Kirkenes, and the Swedish contacts are the County Administrative Board of Norrbotten and the County Administrative Board of Västerbotten. In case of Russia, functions related to the Barents cooperation are carried out by the regional governments (Ad-Hoc Group on Organisational Changes, “Towards More Effective Regional Barents Cooperation”, Barents Euro-Arctic Council (14 May 2007) at 6-7, online: BEAC <http://www.barentsinfo.fi/beac/docs/Ad-Hoc_Group_Report_ENG.pdf>).

44 1997 was an exceptional year in that no Ministerial Meeting was held.


regular meetings since 1994,45 and the heads of member-state governments met in 2003 and 2013 for the BEAC’s ten-year and twenty-year anniversary celebrations.46

The Committee of Senior Officials (“CSO”) consists of ambassadors or officials selected by the member states and the European Commission. The CSO is the central functioning unit of the BEAC, although representatives from observer states and indigenous peoples regularly participate in CSO meetings.47 The CSO is in charge of the BEAC’s activities during breaks between Ministerial Meetings.48

Like the AC, the BEAC works through its Working Groups: the Working Group on Economic Cooperation (“WGEC”), the Working Group on Customs Cooperation (“WGCC”), the Working Group on Environment (“WGE”), the Working Group on Youth Policy (“WGYP”), the Steering Committee for the Barents Euro-Arctic Pan-European Transport Area (“BEATA”), the Working Group of Indigenous Peoples (“WGIP”), and the Interim Joint Committee on Rescue Cooperation (“IJCRC”).49 In addition to these WGs, the BEAC has established a number of joint WGs with the BRC. These joint working groups share co-chairmanship at national and regional levels. They report separately to both the BEAC and the BRC concerning their activities.50 Among these joint groups are the Joint Working Group on Health and Related Social Issues, the Joint Working Group on Education and Research, the Joint Working Group on Energy, the Joint Working Group on Culture, the Joint Working Group on Tourism, and the Joint Working Group on Youth.51

The BEAC has conducted a number of projects that have contributed to the well-being of residents of the Barents region. For example, the BEAC’s present work addresses employ-ment and entrepreneurship among indigenous youth in the Barents region,52 issues involving

45 The ministers of the environment met for the first time in 1994 in Bodø, where they adopted the Barents Euro-Arctic Council Environmental Action Program, followed thereafter by meetings of the ministers of the environment in Rovaniemi in 1995, Saint Petersburg in 1997, Umeå in 1999, Kirkenes in 2001, Luleå in 2003, Rovaniemi in 2005, Moscow in 2007, Tromsø in 2010, and Umeå in 2011 (“Ministerial Meetings of the Barents Euro-Arctic Council”, Barents Euro-Arctic Council, online: BEAC <http://www.beac.st/in-English/Barents-Euro-Arctic-Council>). Ministers responsible for other departments (e.g., culture, youth, and sports) also meet occasionally.

46 Barents Euro-Arctic Council, Barents Euro-Arctic 10 Year Anniversary Declaration (Kirkenes, Norway, 11 January 2003) online: BEAC <http://www.barentsinfo.fi/beac/docs/462_doc_BarentsSummitDeclaration.pdf> [10 Year Anniversary Declaration]; Barents Euro-Arctic Council, Joint Communiqué, 14th Session of the Barents Euro-Arctic Council (Tromsø, Norway, 29 October 2013) at s 2, online: BEAC <http://www.barentsinfo.fi/beac/docs/BEAC_14_Session_Tromso_29_October_2013_Communique_final_ENG.pdf>.

47 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 195.48 Kirkenes Annex, supra note 40, art 10. 49 See Barents Euro-Arctic Council, “Barents working groups and activities”, online: BEAC <http://www.

beac.st/in-English/Barents-Euro-Arctic-Council/> [Barents Euro-Arctic Council, “Barents working groups and activities”].

50 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 293.51 Barents Euro-Arctic Council, “Barents working groups and activities”, supra note 49. 52 A project on Indigenous Entrepreneurship was initiated by the International Barents Secretariat in

2009, funded by the Danish Ministry of Foreign Affairs and operated by the Saami Association of Sweden, the Norwegian Saami Association and the Saami Association of Finland in close cooperation


children and youth,53 climate change and biodiversity,54 cross-border media networks,55 avail-ability of potable water supplies,56 development of the transport infrastructure,57 and issues concerning Barents culture.58 The input of the BEAC is remarkable with respect to inhabitants’ well-being. As Erkki Tuomioja, the Finnish Minister for Foreign Affairs, expressed, “[o]ur Council, with its working groups of local and regional level participation, represents remark-able knowledge and expertise, and has a potential for increasing impact in the coming years.”59

In addition to these projects, the BEAC also works for regional collective security. As recently stated during its twentieth anniversary about BEAC’s achievement is “due to the important role the Barents cooperation has played in strengthening mutual trust, stability and

with the Saami Council and indigenous organizations in Russia. The project offers business consulting and helps indigenous entrepreneurs to develop their business ideas into practical operations (“Activities”, Indigee, online: Indigee <http://www.indigee.org>).

53 Children and Youth at Risk in the Barents region (“CYAR”) is a multilateral program that aims to address marginalized children and youth issues, including social concerns, educational, health, law enforcement, and juvenile crime. Parental guidance courses are offered by specialists in the project, so that children and youth learn from their own families (Barents Euro-Arctic Council, “Steering Committee on Children and Youth at Risk 2008-2015 (CYAR)”, online: BEAC <http://www.beac.st/in-English/Barents-Euro-Arctic-Council>).

54 There is a project dealing with the conservation of biodiversity in light of climate change. Initiated by Umeå University, the main objectives include, inter alia, to evaluate the effectiveness of existing measures to protect the ecosystem and species in view of forthcoming climate change, to identify areas where human management may be required to help species to adapt to a new environment, and to examine technological possibilities and opportunities for the artificial support of species (Umea University Department of Ecology and Environmental Science, “The capacity of protected areas in the Barents Region to conserve biodiversity threatened by climate change and the Effects of predicted increases in anthropogenic pressures and land-use changes on future biodiversity in the Barents region”, online: Umeå University <http://www.emg.umu.se/english/>).

55 There is an ongoing project titled ‘Barents Mediasphere,’ which aims to create a cross-border media network. The project arranges training courses and meetings for regional journalists, along with producing media content (“Barents Mediasphere: Improving Cross-Border Communications”, online: Barentsinfo.org <http://www.barentsinfo.org/mediasphere>).

56 Ground Water Supply in the Sortavala District is a project for improving the quality of life in the Kaalamo and Ruskeala villages in Sortavala, Karelia by providing potable drinking water. The result of the project will be a thorough technical plan to build underground water intake structures, along with pump elevation stations and water treatment units. The project also seeks to connect the main water pipelines in Kaalamo and Ruskeala to a centralized water supply system (“Objectives”, online: Groundwater Karelia <http://www.groundwaterkareliaenpi.org/>).

57 The Barents Freeway project aims to ameliorate the socio-economic well-being of local communities in the Kolarctic area through the development of a transport infrastructure, in order to facilitate increased business competitiveness and cooperation between regional transport administrations. For a brief description of the project, see Barents Euro-Arctic Council, “The Barents Projects”, online: BEAC <http://www.beac.st/in-English/Barents-Euro-Arctic-Council>.

58 See “Barents Culture – an Arctic Experience”, online: Barents Culture <http://barentsculture.com/>.59 Erkki Tuomioja, “Speech by Foreign Minister Erkki Tuomioja in The Barents Euro-Arctic Council

meeting” (Speech delivered at the 13th Session of the Barents Euro-Arctic Council, Kiruna, Sweden, 12 October 2011), online: Ministry for Foreign Affairs of Finland <http://www.formin.fi/public/default.aspx?contentid=231439>.


security in Europe, by joint efforts in northern Europe based on the shared commitment to indivisible and comprehensive security.”60

The BEAC maintains partnerships and communication with a number of regional cooperative bodies, such as: organizations and cooperations (Barents Sports, Barents Road, Barents Tourism, and Barents Youth); academic and educational institutes (the Arctic Centre, the Northern Dimension Institute, the Barents Institute, and the University of the Arctic); financial institutions (the Nordic Environment Finance Corporation, the European Investment Bank, and the Nordic Investment Bank); and media and publishing organizations (Barentsobserver, Barents Press International, and the Arctic Herald).61 Like the AC, the BEAC has also connected national parliamentarians in distinguished forums, such as the Barents Forum.62

2.3 The Barents Regional Council

Seven subnational governments (e.g., provincial, county, and oblast governments) in the North, together with the Saami Council, created the BRC via a cooperation protocol.63 In fact, the BRC was established at the same place on the same day as the BEAC, and with the same aims and objectives.64 The BRC promotes closer cooperation among the inhabitants of the Barents Region.65 Including the founding regional governments,66 the BRC has extended its

60 Barents Euro-Arctic Council, Declaration on the 20th Anniversary of the Barents Euro-Arctic Cooperation (3-4 June 2013) at 1, online: BEAC <http://www.barentsinfo.fi/beac/docs/Barents_Summit_Declaration_2013.pdf> [20th Anniversary Declaration].

61 Barents Euro-Arctic Council, “Partners and related organizations”, online: BEAC <http://www.beac.st/in-English/Barents-Euro-Arctic-Council>.

62 The first meeting of Barents parliamentarians (the Barents Forum) was held in Kirkenes in 1997, and the first conference was in Alta, Norway, in 1999. The second conference was in Bodø, Norway in 2005; the third in Rovaniemi, Finland in 2007; the fourth in Syktyvkar in the Komi Republic, Russia in 2009; the fifth in Luleå, Sweden in 2011; and sixth in Harstad, Norway in 2013. The next conference will be held in Finland (Barents Euro-Arctic Council, Conference Resolution, 6th Barents Parliamentary Conference (Harstad, Norway, 23–24 April) online: BEAC <http://www.barentsinfo.fi/beac/docs/Parliamentary-Conference-2013-resolution-EN.pdf>). It seems that nowadays each BEAC Chairmanship hosts a Barents Parliamentary Conference as a general practice (Barents Euro-Arctic Council, Barents region: cooperation and dialogue towards sustainable development (Barents Euro-Arctic Council, 2007) at 6–7, online: BEAC <http://www.barentsinfo.fi/beac/docs/Parliamentary_BEAC_info_Eng.pdf>).

63 Barents Euro-Arctic Council, Protocol Agreement from the Statutory Meeting of the Regional Council of the Barents Region (The Euro-Arctic Region) (Kirkenes, Norway, 11 January 1993) online: BEAC <http://www.barentsinfo.fi/beac/docs/501_doc_StatutoryMeetingRegionalCouncil.pdf> [Protocol Agreement].

64 Barents Euro-Arctic Council, The Barents Program 2014-2018, (2 June 2013) at 1, online: BEAC <http://www.barentsinfo.fi/beac/docs/Barents_Programme_2014_2018_adopted_2_June_2013.pdf>. See also Kirkenes Declaration, supra note 38; Protocol Agreement, supra note 63, art 2.

65 Johan Jørgen Holst, “The Barents Region: Institutions, Cooperation and Prospects” in Olav Schram Stokke & Ola Tunander, eds, The Barents Region: Cooperation in Arctic Europe (London: Sage, 1994) at 11. See also Andrei Kozyrev, “Visions of the Authors of the Barents Euro Arctic Region Cooperation – Past and Future” in Lassi Heininen & Richard Langlais, eds, Europe’s Northern Dimension: The BEAR Meets the South (Rovaniemi: Lapland University Press, 1997) 45 at 45.

66 The founding members of the BRC are: Archangelsk County (Oblast), Finnmark County Council (Fylkeskommune), Lapland County (Län), Murmansk County (Oblast), Nordland County Council


membership to thirteen regions in the North.67 The chairmanship of the BRC rotates among the member regions for a period of two years, and the Norrbotten County Administrative Board in Sweden presently holds the chairmanship.68

The BRC has accredited three observing members—the Region of North Karelia in Finland, the Council of Christian Churches in the Barents Region, and the Parliamentary Association of Northwest Russia.69

The meeting of the regional heads (i.e., governors and leaders) constitutes the highest deci-sion-making facility of the BRC.70 The Executive Regional Committee (“RC”) consists of sub-ordinate officials of regional governments from the member regions and the Saami Council, and works as the main functional unit within the BRC.71 The RC takes new initiatives and follows up on approved projects of the BRC. The BRC also has its own working groups to perform various activities. These include:72

1. Regional Working Group on Environment

2. Regional Working Group on Communication

3. Regional Working Group on Youth Issues

4. Regional Working Group on Investment and Economic Cooperation

The BEAC and the BRC were established based on shared aims and objectives, and have been working in close cooperation since their inception.73 In most cases where the BEAC has formed close ties (e.g., to universities, research institutes and administrative institutes, and other bodies), ties with the BRC form automatically. The BRC has followed the activities and adopted the policies and plans initially put forward by the BEAC.74

2.4 The Northern Forum

The NF was established in 1991 by thirteen subnational governments (e.g., county and prov-ince) from eight states—Canada, China, Finland, Japan, the United States, Norway, Mongolia,

(Fylkeskommune), Norrbottens County (Län), the Saami Council, and Troms County Council (Fylkeskommune) (Protocol Agreement, supra note 63).

67 There are three regions from Norway (Nordland Fylke, Troms Fylke, and Finnmark Fylke), two from Sweden (Västerbotten Län and Norrbotten Län), three from Finland (Kainuu, Oulu, and Lapland) and five from Russia (Murmansk Oblast, the Republic of Karelia, Arkhangelsk Oblast, the Nenets Autonomous Okrug, and the Republic of Komi) (“Barents Regional Council”, online: BEAC < http://www.beac.st/in-English/Barents-Euro-Arctic-Council/Barents-Regional-Council>).

68 Protocol Agreement, supra note 63, art 4.69 European Union, The Barents Regional Council’s Position to the EU Baltic Sea Strategy (European Union,

2007) at 1, online: European Union: <http://ec.europa.eu/regional_policy/archive/consultation/baltic/doc/govern/barentsregionalcouncil.pdf>.

70 Protocol Agreement, supra note 63, art 4.71 Ibid.72 Barents Euro-Arctic Council, “Barents working groups and activities”, supra note 49.73 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 197.74 Ibid.


and the then-Soviet Union.75 Given the similar challenges the inhabitants of northern regions within these states have faced for a long time, they quickly found commonality as northerners within this governance system. The main objectives of the NF include improving the quality of life of the peoples in the North and supporting sustainable development in the North.76

Presently, the subnational governments that have membership in the NF are the Yukon and Quebec (Canada); the city of Akureyri (Iceland); Hokkaido Prefecture (Japan); Gangwon Province (Republic of Korea); Chukotka Autonomous Okrug, Khanty Mansiysk Autonomous Okrug, Sakha (Yakutia) Republic, and Yamal-Nenets Autonomous Okrug (Russia).77

Many companies and associations, such as chambers of commerce, capable of playing a significant role in the development of the northern economy have been granted special busi-ness partner membership within the NF governance system.78 Although business partners do not have voting rights, they are entitled to attend all open meetings convened under the NF, access the NF’s databases, publications, and other resources, and use of the NF Secretariat when conducting business.79 Eight business organizations from three states currently hold business partner memberships.80

The NF cooperates with many international organizations and programs in order to promote sustainable development, environmental conservation, and economic development. Examples include: the United Nations Development Program (“UNDP”), the United Nations

75 The history of the NF dates back to the 1970s and emerged from a series of four major conferences. The Governor of Hokkaido, Japan organized an international conference on the human environment in the northern region in 1974 in Sapporo and urged for regional cooperation. The second meeting convened in Alberta, Canada in 1979, with representatives from twenty-two northern regions, where the participants identified the main goal of the cooperation as being a means for improving the lifestyle of the inhabitants of northern regions. Unfortunately, the inability of Soviet regions to participate in the meeting prevented the establishment of a common northern regional agenda. These regions were, however, able to take part in the third conference, held in Anchorage, Alaska in 1990, as the dramatic moves towards openness of the Soviet Union allowed regional leaders to move forward with international cooperation, in regard to the development of northern regions. These representatives met again in Alaska the following year and officially adopted the Charter of the Northern Forum, aiming for it to act as a means for cooperation, continuing consultation and the exchange of concerns amongst northern leaders (Northern Forum, Charter of the Northern Forum, adopted at the Initial Gathering of Northern Forum Members, acting as the General Assembly (Anchorage, Alaska, 8 November 1991) at preamble [NF Charter]. For a detailed history of the NF, see Hasanat, “International cooperation”, supra note 5 at 372–75.

76 Northern Forum, Bylaws of the Northern Forum: a Non-Profit Corporation, approved by Resolution No 132 (Vologda, Russia, 17 November 2008) and by Resolution No 137 (Whitehorse, Yukon, Canada, 3 September 2009) art I s 1.2 [NF Bylaws].

77 Northern Forum, “Member Regions”, online: The Northern Forum <http://northernforum.org/index.jsp>.

78 Northern Forum, The Northern Forum Rules of Procedure, approved by Resolution No 132 (Vologda, Russia, 17 November 2008) and by Resolution No 137 (Whitehorse, Yukon, Canada, 3 September 2009) art 3.3 [NF Rules of Procedure].

79 Ibid.80 There are five business organizations from the United States (Alaskan Native Heritage Centre, Alaska

Sealife Centre, Denali Commission, Koniag Inc. and World Trade Centre of Alaska); one from Finland (Kometos Oy); and two from Russia (Makarov Clean Water JV, and JSC Prognoz) (The Northern Forum, “Business Partners”, online: The Northern Forum <http://www.northernforum.org/index.jsp>).


Educational, Scientific and Cultural Organization (“UNESCO”), and the World Health Organization (“WHO”).81 Cooperation is also maintained with other regional governance systems, indigenous communities, and scientific and research groups, including the AC, the University of the Arctic, the Daniel Commission in Alaska, the Inuit Circumpolar Council, the Russian Arctic Indigenous Peoples of the North (“RAIPON”), and the Saami Council.82 The United Nations (“UN”) recognized the NF as an NGO, allowing it to take part in certain UN activities.83 The NF has also developed partnerships with the Network of Regional Governments for Sustainable Development (“nrg4SD”) and the Forum of Global Associations of Regions (“FOGAR”).84 In 2007, the NF concluded a Memorandum of Understanding (“MOU”)85 with the UNDP and a Letter of Agreement jointly with the UNDP and FOGAR,86 establishing, inter alia, a social communication network.87 These involvements in international forums provide the NF with the opportunity to be a partner in the global community and to raise regional issues—that is, the challenges faced by the inhabitants of the North—at an international level.88

81 Northern Forum Board of Governors, “Pyeong-Chang Declaration, Pyeong-Chang, Gangwon Province, Republic of Korea 3 June 2011” at 2, online: Northern Forum <http://www.northernforum.org/servlet/download?id=3723>.

82 Northern Forum, “Other Partnerships”, online: Northern Forum <http://www.northernforum.org/index.jsp>.

83 Northern Forum, “International Partnerships”, online: Northern Forum <http://www.northernforum.org/servlet/content/291.html>.

84 Ibid.85 United Nations Development Programme & the Northern Forum, Memorandum of Understanding

between the United Nations Development Program and The Northern Forum (12 September 2007) online: The Northern Forum <http://www.northernforum.org/servlet/download?id=2910> [UNDP-NF MOU].

86 United Nations Development Programme, the Northern Forum, & the Forum of Global Associations of Regions (FOGAR), Letter of Agreement between The United Nations Development Programme, The Northern Forum and The Forum of Global Associations of Regions (12 September 2007) online: The Northern Forum <http://www.northernforum.org/servlet/download?id=2911> [Letter of Agreement].

87 See e.g. the UNDP-sponsored UN-Regions Partnerships “Towards Carbon Neutral and Climate Change Resilient Territories” initiative under the Hub for Innovative Partnerships programme. The objectives of the Hub are to support national government decentralization by assisting regional and provincial governments in developing and implementing their own development strategies in partnership with all stakeholders (Geneva Representation Office, “Down to Earth: Territorial Approach to Climate Change (TACC)”, online: United Nations Development Programme <http://web.undp.org/geneva/>).

88 For instance, the Russian regions are now part of the International Circumpolar Surveillance (“ICS”) in respect of the infectious disease sub-system of the AC through the NF. During a meeting with ICS representatives in Moscow (International Conference on Infectious Diseases, April 24–26, 2008, Morozovka Estate, Moscow, Russia), the Russian participants identified tuberculosis as the number one disease to be eradicated in remote regions of the Russian North. A workshop including doctors and practitioners from the Russian regions of the NF, together with international specialists, was organized in October 2010 in Khanty-Mansiysk, to discuss appropriate responses for the treatment of tuberculosis in these regions. Other health-related meetings have included: Substance Abuse Treatment and Prevention Training in the North in Khanty-Mansiysk, Khanty-Mansiysk AO-Yugra, and Yakutsk, Sakha Republic, Russia, September 24–28, 2007; Youth Substance Abuse Treatment Training, Alaska and Idaho, United States, May 1–12, 2006; and a Youth Substance Abuse Seminar, Whitehorse, Yukon, Canada, May 2005 (The Northern Forum, “Healthy Lifestyle”, online: The Northern Forum <http://www.northernforum.org/index.jspl>).


3. LEGAL STATUS OF THE GOVERNANCE SYSTEMS IN THE NORTH

This section examines the legal status of the four selected governance systems in the light of international law. The main standard used to determine their legal statuses involves examining the capacity of these governance systems to create legally binding obligations for the actors involved in the systems. This analysis will be undertaken using the founding documents of these governance systems and other documents they have produced.

3.1 The Arctic Council

The Ottawa Declaration,89 the constituent instrument of the AC, is a declaration rather than a treaty, which may indicate the creation of political commitments that are legally non-binding.90 The Ottawa Declaration includes the basis of the AC’s political power and seeks to promote the AC’s contribution, which does not impose binding commitments on the part of its members. The AC has its own Rules of Procedure,91 which give specific directions as to how the AC works.92 The Terms of Reference for a Sustainable Development Program deals with project activities under the AC.93 When viewed together, these elements indicate that the AC’s structure and working procedure is just as formal as that of an international organization.

Neither the biennial ministerial meetings nor deputy ministerial meetings create legally binding obligations. The AC has granted Permanent Participant status to indigenous groups, which in this case is arguably a better position than that of states with observer status, which is unusual in an international treaty or formal international organization. The AC mainly produ-ces persuasive documents that influence the decisions of member and non-member states. On

89 Ottawa Declaration, supra note 12.90 The Arctic states agreed to create the AC by a non-binding instrument. In fact, the officials who prepared

the draft were very keen to ensure that the instrument remained non-binding. For instance, the indigenous groups of the region preferred to use the traditional term “indigenous peoples.” They ultimately included the following explanation to keep the members free from international law: “The use of the term ‘peoples’ in this declaration shall not be construed as having any implications as regard the rights which may attach to the term under international law, that the Council determines can contribute to its work” (Ottawa Declaration, supra note 12 at para 2; VanderZwaag, Huebert & Ferrara, “AEPS”, supra note 2 at 154).

91 Arctic Council Rules of Procedure, supra note 16. 92 Ibid at paras 15–20 (ministerial meetings), paras 21–25 (SAO meetings), paras 28–31 (working groups,

task forces, and other bodies).93 Arctic Council, “Terms of Reference for a Sustainable Development Program”, (5 February

1998), online: Arctic Council <http://www.arctic-council.org/index.php/en/document-archive/category/4-founding-documents>.


balance, the AC is not an international organization under international law: it has developed using a soft-law approach,94 and thus falls outside the auspices of classical international law.95

3.2 The Barents Euro-Arctic Council

The Kirkenes Declaration, which created the BEAC, is not an international treaty. The Kirkenes Declaration mainly lists a number of common problems plaguing the Barents Region and recognizes that the member states share a general willingness for cooperation, rather than cre-ating any legally binding obligations. However, many statements originating in the declaration became useful to the states of the Barents Region by encouraging cooperative activities among them, under the auspices of the BEAC. These mutual efforts, which have addressed the chal-lenges in the region caused by the harsh climatic situation and the inaccessible circumstances of the North, are undertaken in compliance with certain international legal instruments.96

The Terms of Reference of the BEAC has, to a limited extent, created binding obligations for its member states. For instance, the member-state hosting a BEAC meeting must undertake the financial responsibilities that arise from arranging the meeting—a practice that member

94 Soft law is a comparatively new concept in modern international law, as it only emerged in the 1970s. States conclude soft law primarily as an alternative to classical international treaties to counter transnational challenges like transboundary pollution, environmental degradation, and the negative impacts of climate change. Addressing those challenges sometimes requires immediate action, and the conclusion of a formal international treaty—which is a lengthy process compared with the adoption of a simple declaration—might interfere with achieving the main objectives. Soft law does not create any legally binding obligations on the involved parties, but rather, political commitments that could be seen as being encouraging rather than authoritative. Soft law also allows for the participation of non-state actors along with states to address transnational challenges. A group of scholars in international law recognize soft law as an appropriate means to address new challenges caused by global climate change, although another group hesitates to accept soft law as a norm. See Henry G Schermers & Niels M Blokker, International Institutional Law, 5th revised ed (Leiden: Martinus Nijhoff Publishers, 2011); Gregory C Shaffer & Mark A Pollack, “Hard vs. Soft Law: Alternatives, Complements, and Antagonists in International Governance” (2010) 94 Minn L Rev 706; Hasanat, “Definitional Constraints”, supra note 5; Timo Koivurova, Environmental Impact Assessment in the Arctic: A study of international legal norms (Aldershot: Ashgate, 2002) at 116–17; Andrew T Guzman, “A Compliance-Based Theory of International Law” (2002) 90 Cal L Rev 1823 at 1829; Christine Chinkin, “Normative Development in the International Legal System” in Dinah Shelton, ed, Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press, 2000) 21 at 30; Ian Brownlie, Principles of Public International Law, 5th ed (Oxford: Clarendon Press, 1998) at 610; Case concerning Oil Platforms (Islamic Republic of Iran v United States of America), “Preliminary Objection” (12 December 1996), [1996] ICJ Rep 803; Jan Klabbers, “The Redundancy of Soft Law” (1996) 65 Nordic J Int’l L 167; Jan Klabbers, “Informal Agreements in International Law: Towards a Theoretical Framework” (1994) 5 Finnish Yearbook of International Law 267; R R Baxter, “International Law in ‘Her Infinite Variety’“ (1980) 29:4 ICLQ 549 at 550, 552; Aegean Sea Continental Shelf Case (Greece v Turkey), [1978] ICJ Rep 3; Oscar Schachter, “The Twilight Existence of Nonbinding International Agreements” (1977) 71 AJIL 296.

95 See generally Evan T Bloom, “The Establishment of the Arctic Council” (1999) 93 AJIL 712.96 For instance, compliance with international legal instruments includes state commitments to the

UN Conference on Environment and Development (Rio Declaration, 1992), the World Summit on Sustainable Development (Johannesburg Declaration, 2002), the Millennium Development Goals, the 1992 Convention on Biological Diversity, and the 2001 Stockholm Convention on Persistent Organic Pollutants.


states have respected since the inception of the BEAC.97 The use of less authoritative language, such as ‘will’ or ‘will not’ in the provisions rather than stronger terms like ‘shall’ or ‘shall not’, limits the binding nature of the terms.98 Many BEAC meetings resulted in the adoption of either Joint Communiqués or Reports.99 However, the phrasing in those instruments falls into one of three categories in terms of the strength of the obligation: 1) a general recognition or appreciation;100 2) a serious concern but loose commitment;101 and 3) an intent to take action.102 None of these phrasings impose strong commitments on BEAC members, and, in this way, the instruments of the BEAC support its soft-law character.

That said, certain instruments connected to the BEAC could be seen as being more authoritative than the Kirkenes Declaration, Joint Communiqués, or Reports. The agreement in 2007 regarding the Barents Secretariat103 between four member states contains many fea-tures common to classical treaties (e.g., amendment of the agreement, withdrawal from the agreement, acceptance, reporting). In 2008, the same four states in the Barents Region signed another agreement in the field of emergency prevention, preparedness and response,104 which in many ways bore a close resemblance to a classic international treaty. The assumption about these agreements is that the member states intended to get the same results from the agreements that would come from a classic international treaty, subject to keeping themselves outside the jurisdiction of traditional international law. Thus, the instruments produced under the BEAC appear in a diverse and difficult to define range of formats that should best be characterized as a soft-law form of governance.105

3.3 The Barents Regional Council

The Protocol Agreement that established the BRC encompasses a set of general commitments. The Protocol Agreement describes the background information, objectives, and goals of the

97 Kirkenes Annex, supra note 40, art 7.98 Hasanat, “Unique Arrangement”, supra note 3 at 69.99 The exceptions are the declarations adopted by the heads of states in BEAC’s ten-year and twenty-

year anniversaries (10 Year Anniversary Declaration, supra note 46; 20th Anniversary Declaration, supra note 60).

100 Examples of words of this category are “recognizes”, “takes note of”, “encourages enhanced cooperation”, “expresses its appreciation”, “welcomes”, “appreciates the activities”, and “notes the active role.”

101 Examples include “continues to pay special attention”, “underlines the need to address”, “emphasizes the importance”, “commends the enhanced cooperation”, and “believes that.”

102 Examples include “supports efforts to further improve”, “stresses the urgent need to affirm”, “Parties should”, “reaffirms its willingness”, and “considers the application of.”

103 Agreement between the Government of the Republic of Finland, the Government of the Kingdom of Norway, the Government of the Russian Federation and the Government of the Kingdom of Sweden on the Establishment of an International Barents Secretariat for the Cooperation in the Barents Euro-Arctic Region, 15 November 2007, Finland TS 2007 No 118 [Agreement on the Establishment of an International Barents Secretariat].

104 Agreement between the Governments in the Barents Euro-Arctic Region on Cooperation within the Field of Emergency Prevention, Preparedness and Response, 11 December 2008, Finland TS 2012 No 22 [Agreement on Cooperation].

105 For details, see Md Waliul Hasanat, “Cooperation in the Barents Euro-Arctic Region in the Light of International Law” (2010) 2 Yearbook of Polar Law 279 at 299-305 [ Hasanat, “Cooperation in the Barents”].


BRC, and identifies the conditions for its establishment.106 The Protocol Agreement also includes a few authoritative instructions concerning operational expenditures.107

The Regional Council Protocols produced by the BRC express a number of common concerns of the region, including a number of proposals for establishing relevant working groups under the governance system.108 Notably, the Protocols do not contain any strong com-mitments that may create binding obligations on the BRC’s members. The Joint Statements issued by the BRC aimed at the BEAC foreign affairs ministers’ meetings mainly reaffirm its support for the activities of the BEAC, along with its deep concerns with respect to specific issues (in particular, those connected to the well-being of the local peoples).109 The commit-ments expressed throughout the statements seem loose and do not create any legally binding obligations on its member regions. 110

Thus, in many ways, the BRC falls into the group of soft-law governance systems. However, an important element of soft-law governance systems is the participation by national governments, a feature that is absent in the BRC. That said, the BRC is a group of subnational governments who deal with matters crossing national borders that are usually managed by national governments, specifically through their ministries of foreign affairs. One may there-fore ask whether this type of action may fall under the ultra vires activity of subnational gov-ernments superseding their national governments. The fact is that in most cases, a national government has either delegated power to the subnational authority or has not objected to the activities of the subnational government for a long period of time.111 Yet, the absence of national government participation has made the BRC weaker than soft-law governance sys-tems.112 Therefore, it might be practical to suggest that the BRC should be categorized as a hybrid soft-law governance system.113

3.4 The Northern Forum

Determining the legal status of the NF seems somewhat more challenging, when compared to the three forms of governance discussed above. During its establishment, even the negotia-tors were confused about the status of the NF and as to whether it should be considered as a

106 Protocol Agreement, supra note 63.107 Ibid, art 5.108 See Hasanat, “Cooperation in the Barents”, supra note 105 at 302-303.109 Hasanat, “Unique Arrangement”, supra note 3 at 72.110 Ibid.111 Hasanat, “International cooperation”, supra note 5 at 382. “For instance, in the 1980s, when the

provincial government of Lapland, Finland initiated a cooperation agreement with the Murmansk Oblast, Russia, the central government of Finland exchanged a few letters concerning how to deal with a regional government of a foreign state. Ultimately the Lapland Province received permission from the national government to conclude the agreement” (ibid at 11). The author came to know this through an interview with Hannu Viranto, the former Lapland representative to the Northern Forum, who has taken part in many NF activities since 1997 (Waliul Hasanat, Interview conducted with Hannu Viranto, 21 February 2011, Rovaniemi, Finland).

112 Hasanat, “Unique Arrangement”, supra note 3 at 77.113 Ibid.


private or public entity.114 The NF has received the status of a non-profit corporation,115 yet at the same time, the NF Charter defines the governance system as both an “international orga-nization” and “non-governmental organization”.116 Moreover, the developed partnership with the UN as well as taking part in different activities operated by the UN provides the NF with further potential. This multi-dimensional character presents challenges to scholars seeking to determine the NF’s legal status.

The NF governance system is a legal entity as defined by US law, that is, the Alaska Nonprofit Corporations Act,117 and section 501 (C) (3) of the US Internal Revenue Code of 1986,118 which is applicable to incorporated non-profit organizations. Thus, the NF enjoys the privileges and immunities conferred by domestic laws in Alaska. However, these laws do not seem to prevent the NF from following its self-made rules, which are more relaxed and less formal than the US laws. The lack of both a treaty in the NF’s constituent instrument and the creation of binding commitments, suggest that it would be sensible to consider the NF as a soft-law form of governance.119 In contrast, the non-participation of national-level governments directly in the NF further suggests that even a soft-law categorization is much too strong. As such, it is perhaps more suitable to view the NF as a hybrid soft-law governance system.120

These diverse characteristics of the selected international governance systems have made their positions somewhat ambiguous in classical international law. They fit well with other soft-law bodies and address new concerns that have resulted from environmental degradation in the North. However, in recent years, these governance systems have been moving towards the creation of stronger commitments by concluding several legally binding international instruments. For example, the AC recently adopted an agreement on cooperation regarding search and rescue in the Arctic,121 and an oil spill agreement.122 The NF concluded an MOU

114 Northern Forum, Conference Proceeding of the Northern Forum Meeting among the Governors, Premiers and Designated Representatives (Anchorage, Alaska, 30-31 May 1991) at 27 [on file with author].

115 Northern Forum, The Northern Forum Resolution no 11 Regarding Amendment to The Northern Forum’s Articles of Incorporation to Declare Nonprofit Status, approved on 3 October 1993, Tromsø, Norway.

116 NF Charter, supra note 75, art 2.117 Nonprofit Corporations Act, Alaska Stat tit 10, chap 20. 118 Internal Revenue Code, USC tit 26 § 501(c)(3), (1986).119 Hasanat, “International cooperation”, supra note 5 at 382.120 The concept of hybrid soft law is fairly new. A group of scholars in international law described the

concept when evaluating the legal status of the Copenhagen Accord (adopted at the 15th UNFCCC in December 2009, Copenhagen, Denmark). The Copenhagen Accord was made in such a way that it created confusion as to whether or not it generates international obligations. Nevertheless, the concept of hybrid, or ‘soft soft law,’ has not yet gained significant acceptance among scholars of international law. Moreover, establishing this new concept seems rather challenging since there is still debate among scholars about the legitimacy of soft law itself. See Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 27, fn 103.

121 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic, 12 May 2011, Can TS 2013 No 6, 50 ILM 1119 (entered into force 19 January 2013).

122 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 15 May 2013, online: Arctic Council <http://www.arctic-council.org>.


with the UNDP, and a Letter of Agreement with the UNDP and FOGAR123—all of which have clear legal consequences. Within the BEAC, the 2008 agreement concerning emergency pre-vention, preparedness and response124 and the agreement regarding the Barents Secretariat125 are also legally binding on its four member states.

4. REASONS FOR ESTABLISHING SOFT-LAW FORMS OF GOVERNANCE IN THE NORTH

Several attempts have been made at establishing formal international organizations to address the region-specific challenges faced by peoples living in the North.126 However, none of these attempts have been successful; no such formal organization operating under public interna-tional law has been formed to date. This section will discuss the prevalence of soft-law gover-nance systems in the North.

4.1 Northern Agenda

This agenda arose from the shared challenges faced by northern populations, and centres, inter alia, upon the protection of the environment and of traditional cultures and addressing the chal-lenges caused from climate change.127 In fact, the northern agenda appears complex because it encompasses a number of issues that are couched in complexity, vagueness, and uncertainty.128 The initiatives that emanate solely from states of the circumpolar North appear to be insuffi-cient to address the rapid and multi-faceted changes that are taking place in the North. Thus, there is a clear need to include both states from outside the region and non-state actors, such as international organizations (governmental and non-governmental), research institutes, local peoples, and civil society groups in these governance systems. For instance, actions occurring outside of the region nonetheless affect climate change in the circumpolar North, and thus

123 UNDP-NF MOU, supra note 85; Letter of Agreement, supra note 86.124 Agreement on Cooperation, supra note 104.125 Agreement on the Establishment of an International Barents Secretariat, supra note 103. 126 For instance, Pharand drafted a treaty model about an Arctic Regional Council, which was published

by Canadian Arctic Resource Committee (“CARC”) in 1991, suggesting the establishment of a formal international organization in the region (Donat Pharand, “Draft Arctic Treaty: An Arctic Regional Council” in The Arctic Environment and Canada’s International Relations (Ottawa: Canadian Arctic Resources Committee, 1991) at A1, online: Canadian Arctic Resources Committee <http://www.carc.org/pubs/v19no2/5.htm>). Then, Finland commissioned Pekka Haavisto to prepare a report for the SAOs concerning the structure of the work of the Arctic Council. The final report was delivered to the AC secretariat on June 29, 2001 after the SAOs had discussed the draft report from June 12–13, 2001 (Arctic Council, “Minutes of the Arctic Council Senior Officials’ Meeting” (Rovaniemi, Finland, June 12-13, 2001) at 3-5, online: Arctic Council <http://www.arctic-council.org/index.php/en/document-archive/category/143-sao-meeting-in-rovaniemi-finland-june-2001>).

127 For a general treatment of environmental challenges in the North, see Paul Arthur Berkman & Alexander N Vylegzhanin, eds, Environmental Security in the Arctic Ocean (Dordrecht: Springer, 2010).

128 Donald McRae, “Arctic Sovereignty? What is at Stake?” (2007) 64:1 Behind the Headlines 1. See also Emily Figdor & Alison Cassady, The Carbon Boom: National and State Trends in Global Warming Pollution Since 1960 (Los Angeles: Environment California Research & Policy Center, 2006) at 6, online: Environment California<http://www.environmentcalifornia.org/uploads/Jg/Pk/JgPkRMfUISU7lgncGaA1bA/Carbon-Boom-CA-9.16.06.pdf>.


directly impact the northern environment and the livelihoods of local residents. Moreover, any steps aimed at mitigating climate change ( such as limiting CO2 emissions ) require a balance of the use of facilities provided by modern science and imposing binding obligations on north-ern states.129 However, these mitigating initiatives provide few measurable results in the short term, and as such, states outside of the region are unlikely to sacrifice their national interests for the long-term protection of the environment and peoples of the North.130

Several of the changes occurring in the North require immediate action. Adopting a formal international treaty is a lengthy process to counter fast-occurring changes;131 adopting a declaration requires comparatively less time. In this way, we see that the northern agenda does not foster favourable conditions for the creation of formal international organizations that will impose legally binding obligations on their members.

4.2 The Local Inhabitants

The circumpolar North encompasses settled territories located far north of the capital cities of the northern states, with the exception of Iceland. Notably, a number of indigenous groups have resided in the region for long periods of time and have developed distinct and diverse live-lihoods and cultures which are different from the lifestyles enjoyed by residents in the southern parts of the Northern states. In fact, their livelihoods and cultures are closely connected to the northern natural environment, which is vulnerable to climate change, development and the economic activities conducted in the region. However, national policy-makers are mainly situ-ated in the south, and do not properly understand the needs of northerners.132 This disconnect has prevented policy-makers from making northern needs a national priority. In turn, this has led northerners to develop closer ties to peoples living in other areas of the circumpolar North,

129 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 201-202.130 The issue of climate change was not a main agenda item at the inception of the AC. However, the issue

was incorporated under the mandate of the AC within two years of its establishment, and currently assumes a dominant role. The AC has tried to influence Arctic states and the global community in order to affect the management of the global climate change regime. To this end, the AC provides noteworthy information to the governments and inhabitants of the Arctic regarding climate science. This information mainly centres on the negative impacts of climate change and suggestions for adapting to the impacts of climate change from both Arctic and global perspectives. At the same time, such information creates awareness among Arctic inhabitants about the impacts of climate change so that they may prepare to adapt themselves to the changes. The issue of climate change became a priority concern under the BEAC as result of the 2004 ACIA Report. Climate change has also been placed on the agenda of the WGE. The BEAC has established close relations with other relevant international and regional forums, for instance with the Nordic Council of Ministers involving a climate change project (Impacts of Climate Change on Biodiversity and Ecosystem Goods and Services in the Barents Region), in which the BRC plays a role. The NF maintains programs that focus on understanding climate change, and holds meetings on the issue. The NF also disseminate valuable information on its website. The NF also cooperates with the UNDP and the UNEP in facilitating the participation of regions in climate change mitigation. For an examination of the climate policy of each institution, see Hasanat, “Role of International Governance”, supra note 8 at 569-578.

131 Vienna Convention on the Law of Treaties, 22 May 1969, 1155 UNTS 331 at arts 6-33, 8 ILM 679 [VCLT]. For instance, the negotiations for the conclusion of UNCLOS started in 1973, the treaty was signed in 1982, and came into force in 1992.

132 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 202


across traditional state boundaries.133 These different groups have created stronger ties through experiencing similar challenges, and they have collectively tried to create a common voice rep-resenting a northern perspective on regional development and policy making.

The contributions of northern indigenous peoples to these governance systems are notable especially in terms of residents’ well-being. As PPs, these indigenous groups are actively involved in many activities of the AC, take part in Ministerial Meetings (along with other meetings), and play an active role within the WGs of the AC.134 They are also the main source of Traditional Knowledge135 used in assessing the state of affairs in the Arctic. The principles adopted for the AEPS recognized the parallels between indigenous knowledge and modern science in assessing the state of affairs in the Arctic.136 Indigenous involvement was also key in the inclusion of indigenous issues in the Arctic Climate Impact Assessment Report, which notably states, “indigenous communities face major economic and cultural impacts.”137 The Arctic Climate Impact Assessment Policy Document report also recommends that Arctic states work closely with local communities in the Arctic to promote the ability of these communities to adapt to and manage the various impacts of climate change and ultraviolet radiation.138 That some of the PPs use consultants with real knowledge about the functioning and activities of the AC could be an example of their seriousness within the governance system; once the Arctic Athabaskan Council (a PP within the AC), proposed that a reformation proposal for the AC could be explained by their deep connection with the AC.139

The Indigenous Peoples Secretariat (“IPS”) acts as a coordinating platform for Arctic indigenous groups who have PP status within the AC.140 Indigenous peoples also take part in the Ministerial Meeting of the BEAC through the WGIP. In the BRC, the Saami Council has a membership status equal to that of regional governments.141 However, there is no mem-

133 Ibid.134 Arctic Council Rules of Procedure, supra note 16, art 5.135 The terms Traditional Ecological Knowledge (“TEK”) and Traditional Knowledge (“TK”) are used

interchangeably (John Sallenave, “Giving Traditional Ecological Knowledge Its Rightful Place in Environmental Impact Assessment” 22:1 (1994) Northern Perspective 16 at 16–19).

136 Arctic Council, Arctic Environmental Protection Strategy (14 June 1991) at 9–10, online: Arctic Portal <http://www.arcticportal.org>.

137 For information on how indigenous and local knowledge may be complementary to the scientific approach for environmental assessments, see ACIA Report, supra note 35 at 10–11.

138 Arctic Council Ministerial Meeting, Arctic Climate Impact Assessment Policy Document, (24 November 2004) online: ACIA <http://www.acia.uaf.edu/PDFs/ACIA_Policy_Document.pdf>.

139 Arctic Athabaskan Council, “Improving the Efficiency and Effectiveness of the Arctic Council: A Discussion Paper” (March 2007) online: Arctic Council <http://www.arctic-council.org/index.php/en/document-archive/category/206>.

140 The IPS is currently located in Copenhagen, Denmark but is due to move to Tromsø, Norway (Kiruna Declaration, supra note 21 at 8).

141 The WGIP has six members: one Saami representative from each state (Finland, Norway, Russia, and Sweden), along with one Vepsian and one Nenets representative from Russia. There are also four observers: representatives from the Saami Council, the Association of World Reindeer Herders, the Russian Arctic Indigenous Peoples of the North and the Resource Centre for Rights of Indigenous Peoples (Working Group of Indigenous Peoples in the Barents Euro-Arctic Region Meeting, “Terms of Reference for the Working Group of Indigenous Peoples in the Barents Euro-Arctic Region” (15 December 2010) at paras


bership or formal participation mechanism for indigenous peoples within the main bodies of the NF, despite part of the criteria for defining the northern region (as ascertained by the NF) being its “small population, [as well as] diverse and strong indigenous cultures.”142 The Inuit Circumpolar Council, RAIPON, and the Saami Council have nonetheless developed rela-tionships with the NF. In turn, these relationships have facilitated the inclusion of a number of indigenous issues in many NF publications. These issues have included, for example, the protection of traditional cultures,143 and the ability of indigenous groups to take part in deci-sion-making processes related to concerns of their communities.144 We see, therefore, the value of ensuring that local indigenous groups have access to governance systems operating in the North.145

However, in accordance with classical international law, only states (and international organizations to some extent) may to be party to a formal international treaty creating legally binding obligations.146 The parallel participation of indigenous groups with states in any inter-national treaty or international organization is not allowed.147 Not only are soft-law govern-ance systems more open to the participation of non-state entities, but the inclusion of these local groups in a regional governance system could also better serve the overall well-being of residents in the region. These soft-law governance systems have developed outstanding know-ledge and skills to address Northern-specific challenges, and now play a significant role in decision making concerning Northern issues that would traditionally be dealt with by more formal international organizations.

4a–4d, online: Barents Euro-Arctic Council <http://www.beac.st>). Through the Action Plan, the WGIP promotes measures in trade and business development, language and media, health and social issues, and also environmental and cultural issues in the Russian Arctic region (Working Group of Indigenous Peoples in the Barents Euro-Arctic Region, “Action Plan for Indigenous Peoples in the Barents Euro-Arctic Region 2009-2012” (Tromsø, Norway, 21 January 2009) online: BEAC <http://www.barentsinfo.fi/beac/docs/WGIP_Action_Plan_2009-2012_ENG.pdf>). In 2010, the Barents Indigenous Peoples’ Congress, organized by the WGIP, issued a resolution calling on the Arctic Council to grant permanent participant status for the Nenets, Saami, and Vepsians (Barents Indigenous Peoples’ Congress, Resolution from the 1st Barents Indigenous Peoples’ Congress, 4–5 February 2010, online: BEAC <http://www.beac.st>). See generally Timo Koivurova, “The Status and Role of Indigenous Peoples in International Governance”, (2011) 3 Yearbook of Polar Law 169.

142 NF Rules of Procedure, supra note 78, art 3.2.143 Northern Forum, Saint Petersburg Declaration, 25 April 2003, s 3, online: Northern Forum <http://www.

northernforum.org/servlet/download?id=172>.144 Northern Forum, Rovaniemi Code of Conduct: Principles Related to the Conduct of Business Operations in

the Circumpolar North (Rovaniemi, Finland, 12–15 September 1994), s 4–6, online: Northern Forum <http://www.northernforum.org/servlet/download?id=235> [Rovaniemi Code].

145 Rob Huebert, “The Arctic Council and Northern Aboriginal Peoples” in Jill Oakes & Rick Riewe, eds, Issues in the North (Manitoba: Canadian Circumpolar Institute, 1998) 141.

146 See VCLT, supra note 131, arts 2(a), 2(g).147 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 202.


4.3 Historical Reasons

During the Cold War, the circumpolar North had considerable military-strategic value for the two world superpowers of the time, the Soviet Union and the United States.148 At the time, establishing any formal international organization focused on Northern issues seemed impos-sible.149 Currently, however, the European Union has also emerged as a possible candidate due to two member states—Finland and Sweden. Olav Schram Stokke and Geir Hønneland have opined that the joint cooperation of the three great powers (the European Union, Russia, and the United States) is required for establishing a successful international organization in the North.150 Moreover, possible Canadian involvement must also be considered. Although Canada is not generally regarded as a global superpower, its strong presence in the circumpolar North and its considerable contributions to Northern policy making render it an important player.151 The United States has resisted committing itself to many formal international organi-zations or treaties that generate legally binding obligations.152 This resistance may be tied to the supposition that it may be more difficult for a dominant state to frequently exert its influence over weaker states within a formal legal international regime.153

The end of the Cold War allowed for the development of formal intergovernmental cooperative forums that connected northern peoples, and thus resulted in different forms of governance systems:

1. A Finnish initiative resulted in the creation of the AEPS, which later transformed into the AC under a Canadian initiative;

2. The Barents cooperation was established under a Norwegian initiative, which expanded into a twofold system of governance—the BEAC and BRC;

3. The governor of Alaska played a leading role in the creation of the NF, although its history dates back to the 1970s.154

The northern states, regional or subnational governments, and peoples established these forms of governance in the early 1990s, following the end of the Cold War. This illustrates the strong influence of the political history of the region on development of governance systems in the circumpolar North.

148 For a detailed history of the region see generally Ken S Cotes et al, Arctic Front: Defending Canada in the Far North (Toronto: Thomas Allen, 2008); Shelagh D Grant, Polar Imperative: A History of Arctic Sovereignty in North America (Vancouver: Douglas & McIntyre, 2010).

149 Young, “Governing the Arctic”, supra note 2. See also Keskitalo, supra note 2.150 Hønneland & Stokke, supra note 2 at 6–8. See also Franklyn Griffiths, Rob Huebert & P Whitney

Lackenbauer, Canada and the Changing Arctic: Sovereignty, Security, and Stewardship (Waterloo: Wilfrid Laurier University Press, 2011) (detailed address of the future of resource management in the Canadian Arctic).

151 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 206.152 Ibid.153 Carlos Díaz-Alejandro, “Delinking North and South: Unshackled or Unhinged?” in Albert Fishlow, ed,

Rich and Poor Nations in the World Economy (New York: McGraw-Hill, 1978) 87 at 92. 154 See Hasanat, “International cooperation”, supra note 5 at 372-75.


4.4 National Interests

The rapid rate of climate change in the region has resulted in the melting of sea ice and the opening of new sea routes, which allows increased access to previously inaccessible marine resources.155 These changes have led to a rise in shipping and economic activities.156 Thus, the coastal states of the Arctic Ocean have taken a particular interest in the changes taking place in the region157 that touching their national economic interests.158 However, they have remained skeptical as to whether a new international legal regime might restrict the development of their national interests concerning the continental shelves or as regards the increasingly acces-sible natural resources of the Arctic Ocean.159 It is ironic that the existing arrangements may better serve the national interests of these states, due to the fact that these arrangements are mainly based on the law of the sea and the United Nations Convention on the Law of the Sea (“UNCLOS”),160 which together provide a number of rights that could be applied in the Arctic Ocean.161

155 AR4 Synthesis Report, supra note 7 at 30, 31, 33, 46, 52; AMAP SWIPA 2011, supra note 7 at v, vi,vii, 3,5,10. The AC advocates using natural resources in a sustainable manner, so that the benefits go to local residents (mainly indigenous peoples), since they are the main victims of environmental degradation in the Arctic region. According to the AC, climate change and economic activity are the two principal sources of change occurring in the Arctic (AMSP, supra note 11 at 3-4). The BEAC promotes increased economic development in order to support local peoples, since many are located far from densely populated areas. These efforts aim to limit the migration from the Barents area to the south (mainly by younger generations) by providing modern facilities and developments, alongside protecting traditional cultures (The Barents Cooperation, supra note 39 at 1). The NF also promotes economic development and the establishment of entrepreneurship in the region, and has accordingly granted special membership to businesses and associations (see NF Charter, supra note 75, at preamble; Northern Forum, Khanty-Mansiysk Declaration, Eighth General Assembly of the Northern Forum (Khanty-Mansiysk Autonomous Okrug – Ugra, Russia, 28 September 2007), s E.2; Northern Forum, Whitehorse Declaration, Ninth General Assembly of the Northern Forum (Whitehorse, Yukon, Canada, 3 September 2009), s D.6 [Whitehorse Declaration]).

156 AMAP SWIPA 2011, supra note 7 at viii.157 See generally Barry Scott Zellen, Arctic Doom, Arctic Boom: The Geopolitics of Climate Change in the Arctic

(Santa Barbara: Praeger, 2009). See also Rob Huebert, “The Law of the Sea and the Arctic: An Unfulfilled Legacy” (2004) 18 Ocean Yearbook 193.

158 For instance, five Arctic Ocean coastal states – Canada, Denmark, Norway, Russia, and the United States – have created a group to manage their interests in the region and accordingly adopted the Ilulissat Declaration in 2008 (Arctic Ocean Conference, Ilulissat Declaration (27–29 May 2008), online: Oceanlaw.org <http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf>). See also Rob Huebert, International Law, “Geopolitics and Diplomacy in the Northwest Passage” (2006) 1:1 The Journal of Ocean Technology 16 at 16–22; Koivurova, “Limits and Possibilities”, supra note 2.

159 For a discussion of ongoing territorial disputes, see Michael Byers, Who Owns the Arctic?: Understanding Sovereignty Disputes in the North (Vancouver, Canada: Douglas & McIntyre, 2010).

160 United Nations Convention on the Law of Sea, 10 December 1982, 1833 UNTS 396, 21 ILM 1261 (entered into force 16 November 1994) [UNCLOS].

161 Ibid, art 234. The Ilulissat Declaration, supra note 158, uses the term “law of the sea” because the United States is not a party to UNCLOS. However, the United States has also often affirmed that most provisions of UNCLOS codify a customary international law of the sea (Betsy Baker, “Law, Science, and the Continental Shelf: The Russian Federation and the Promise of Arctic Cooperation” (2010) 25:2 Am U Int’l L Rev 251 at 262, 272 fn 108).


4.5 Differences in Political Will

Strong political will is a prerequisite for the establishment of a formal international legal regime.162 However, not all states in the circumpolar North view the establishment of such a regime with the same level of importance. Take for example the AC governance system, where a number of ministers were absent from AC ministerial meetings (except for the most recent meetings in Nuuk and Kiruna).163 Although some states may feel that establishing a formal international organization in the region is a fruitful endeavour, others may see it as a casual platform generating disparate motivations for governance. Illustrating this disparity in opinion, a recent survey found that 61 percent of northern Canadians, 51 percent of southern Canadians, 61 percent of Icelanders, 51 percent of Danes, 47 percent of Finns, 40 percent of Norwegians, 27 percent of Swedes, 21 percent of Russians, and 16 percent of Americans are aware of international cooperation in the Arctic and have heard of the AC.164 Another survey showed low levels of knowledge regarding mutual cooperation among the citizens and residents of the eight Arctic states in general, with particularly low levels of knowledge among northern residents who are directly affected by such cooperation.165

The situation that exists in the BEAC is similar. Not all the member states seem to share the same level of activity with respect to different initiatives launched under the governance. Two members, Denmark and Iceland, are generally not involved in the making of strong com-mitments or in the creation of legal regimes, although this may be due to their lack of territory in the region concerned. The divergent attitudes of NF members concerning these cooperative efforts have, however, weakened the institutional strength of the governance system; many regions from Arctic states have revoked their membership.166

One speculation on forming soft-law governance systems is that these systems may some-times evolve into hard-law bodies when the entities involved commit to deeper and more responsible cooperation.167 However, none of the governance systems mentioned has yet attained that status, despite the increasingly strong commitments made by policy-makers in

162 Oran R Young, “International Regimes: Problems of Concept Formation” (1980) 32:1 World Politics 331 at 343-344.

163 For the first time at an AC Ministerial Meeting, six foreign ministers were present at Nuuk in 2011 (Nuuk Declaration, supra note 29). There were reasonable grounds for absence for the remaining two foreign ministers—Finland’s could not attend because the formation of a new government was in progress, and the newly formed government in Canada sent their environmental minister. In 2013, seven ministers, including six foreign ministers, were present at the Kiruna Ministerial Meeting (a Minister for the Arctic Council and a Director General represented Canada and Iceland, respectively) (Kiruna Declaration, supra note 21).

164 Ekos Research Associates, “Rethinking the Top of the World: Arctic Security Public Opinion Survey Final Report” (January 2011) online: Walter & Duncan Gordon Foundation <http://gordonfoundation.ca>.

165 The sample survey conducted by the author took place in East Lansing, Washington, DC, New York, Kirovsk, Moscow, Copenhagen, Nuuk, Aarhus, Stockholm, Luleå, Toronto, Montreal, Reykjavik, Kirkenes, Tromsø, Rovaniemi, Oulu, and Helsinki (Waliul Hasanat, unpublished sample survey).

166 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 215; Hasanat, “International cooperation”, supra note 5 at 376.

167 For instance, three UN General Assembly resolutions (GA Res l721/XVI, 1884/XVIII, and 1962/XVIII) evolved into the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of


the North for protecting the environment of the region from the rapid changes occurring due to climate change and globalization.

5. THE INFLUENCE OF GOVERNANCE SYSTEMS ON INTERNATIONAL LAW

It is acknowledged that none of the selected forms of governance constitute an international organization from the viewpoint of international law, and are incapable of producing any legally binding instruments without their members’ consent. The complex characteristics of these four soft-law governance systems have diverse impacts on international law. On one hand, these systems contribute to the development of public international law, whilst on the other hand, they pose several challenges to international law and, in particular, to classical international law. These systems have established a number of customs that have been prac-ticed by their members for a considerable period of time. Most of these governance systems also follow procedural formalities to differing extents with respect to specific issues.

One challenge for classical international law is the AC’s introduction of the concept of Permanent Participant, which gives indigenous peoples a better position when discussing international issues within a soft-law governance system than they would have within many international organizations, and better even than the position of some states with observer status within the AC. It is somewhat difficult for classical international lawyers to recognize such a concept, since they ascribe to the view that states, as holders of sovereign authority, play the main role in the international arena. However, existing formal international governance systems that handle complex global concerns related to environmental protection often do not seem sufficient to properly address the new challenges resulting from rapid changes occurring in certain regions. If the success of such a system requires the inclusion of actors other than states within its framework, the international community, in recognizing the real needs of a given situation, should be open to this possibility, rather than exclusively focusing on classical concepts and formalities.

The BEAC has introduced the concept of the Barents Region, on the basis of which the BRC was also formed. Arguably, if some regions share the same challenges or opportunities, they could be bound within a regional framework, irrespective of whether they belong to a single state or not. Granting membership to states without territory in the Barents Region is another new idea that facilitates the view that cooperation may also occur with outside actors.

The BRC exemplifies a governance system wherein subnational governments cooperate across national boundaries and indigenous peoples participate as members. This practice of allowing the input and cooperation of indigenous groups with a group of subnational govern-ments goes against the Westphalian standard—only states may be involved in international decision making regarding the management of international issues. The BRC’s relationship with the BEAC has catalyzed new thought in international law on how subnational level gov-ernance systems can cooperate with those at the national level.

Outer Space including the Moon and Celestial Bodies. See also C M Chinkin, “The Changes of Soft Law: Development and Change in International Law” (1989) 38 The Int’l & Com L Qu’ly 857.


The NF has enriched international law by introducing a new concept of the “common environmental domain.”168 This concept is a useful tool under international environmental law to counter cross-border environmental degradation. Moreover, the NF governance system has defined the “northern regions”169 in such an innovative way that it may include regions from different parts of the globe within a single framework.170

The members of these four governance systems convene regular meetings, manage internal activities (including overseeing the activities of subordinate entities, e.g., working groups and secretariats), while also managing their external relations in systematic ways. The members and other actors involved in these governance systems respect procedural formalities in accordance with recommendations made in the instruments prepared under the auspices of those gover-nance systems. These formalities may be loosely compared to established customs in interna-tional law, and thus may endow the activities of these systems with a certain authority and legitimacy.

The involvement of these soft-law forms of governance systems in global forums has created several challenges for classical international law, when comparing their roles to those of states. For instance, the AC has issued a number of statements to the UNFCCC and organized two side events at UNFCCC meetings, although some AC members hold differing positions regarding the international climate change regime.171 The NF concluded an MOU with the UNDP, which recognizes that “partnerships between regional governments can achieve greater results than working at the national level.”172 This declaration, however, opens up a sensi-tive question in international law, namely, a state’s ability to deal with global challenges. The UNDP, a subsidiary organ of the United Nations, finds regional cooperation more effective as compared to traditional intergovernmental organizations and argues for the granting of

168 The concept of “common environmental domain” concerns the relationship between property stewardship and ownership, and seeks to the region from activities that deplete or damage environmental integrity (including water, air, and land). This concept is based on the congenial coexistence of people and nature, a precondition of human life in the harsh and adverse conditions of the North (Rovaniemi Code, supra note 144, s 2).

169 According to a NF position paper, the Northern regions are characterized by:

i. Harsh climate and vulnerable ecosystems;

ii. Small population, diverse and strong indigenous cultures;

iii. Economy based primarily upon extraction of natural resources and outsourcing of all goods;

iv. Limited internal investment capital, high operating costs;

v. Limited infrastructure, mostly oriented North-South; and Limited influence on national government and multinational corporate decision making (Arctic Council & Northern Forum, Northern Forum, SAO2001/B/14.1 (Northern Forum Position Paper, Northern Forum) at 1, online: Arctic Council <http://www.arctic-council.org/index.php/en/document-archive/category/344-14-northern-forum>).

170 For a detailed description of the NF’s contributions to international law, see Hasanat, “International cooperation”, supra note 5 at 383.

171 For instance, the United States has not ratified the Kyoto Protocol, and Canada has withdrawn from the Kyoto Protocol.

172 UNDP-NF MOU, supra note 85 at 2.


“meaningful authority” to subnational governments.173 This raises two questions: what does “meaningful” denote, and in which context is “authority” used? Searching for the answers to these questions reveals the basic limitations of classical international law in handling modern challenges posed by the expanding concept of “legal personality” in international law.174

The Rovaniemi Code poses a further challenge to traditional international law with the following statement: “These guidelines are not intended to compromise in any way national, regional or local sovereignty.”175 This statement could be seen as rethinking the concept of strict state sovereignty as established under classical international law and recognizing the concept of “limited sovereignty”176 or “responsible sovereignty”.177 These concepts of sovereignty were introduced as alternatives to “strict sovereignty” in order to properly address emerging global challenges in environmental protection and the protection of the rights of vulnerable commun-ities.178 There are, however, other similar concepts in the scholarly literature, such as ecological sovereignty,179 “Arctic sovereignty,”180 and “Polar sovereignty”.181 These concepts are founded on a consideration of sovereignty from the viewpoints of “fact” (i.e., intrinsic to states) and “norm” (i.e., defined by international rules) whereby norms facilitate the fact.182 In contrast, others may hesitate to recognize the authority of these soft-law governance systems and may question whether these systems have the power to make these types of statements. Moreover, there is considerable doubt about the capacity of these governance systems to convince states of the validity of their innovative sovereignty concepts, which a group of scholars has identified as a major shortcoming.183 Rafael Domingo has advocated the application of a new global law to counter transnational problems that cannot be addressed by municipal law or the law of

173 See UNDP-NF MOU, supra note 85 at preamble; Letter of Agreement, supra note 86.174 Hasanat, “International cooperation”, supra note 5 at 383. 175 Rovaniemi Code, supra note 144 at 1.176 Ruth Lapidoth, “Sovereignty in Transition” (1992) 45:2 Journal of International Affairs 325. 177 Patricia Birnie, “International Environmental Law: Its Adequacy for Present and Future Needs” in

Andrew Hurrell & Benedict Kingsbury, eds, The International Politics of the Environment: Actors, Interests, and Institutions. (Oxford: Oxford University Press, 1992) 51 at 84.

178 Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance With International Regulatory Agreements (Cambridge: Harvard University Press, 1995) at 271–286.

179 Ken Conca, “Rethinking the Ecology-Sovereignty Debate” in Ken Conca & Geoffrey D Dabelko, eds, Green Planet Blues: Environmental Politics from Stockholm to Johannesburg (Boulder, Colorado: Westview Press, 2004) 65 at 72–79.

180 McRae, supra note 128. See also Inuit Circumpolar Council, “Arctic Sovereignty Begins with Inuit: Circumpolar Inuit Commit to Development of ‘Inuit Declaration on Sovereignty in the Arctic’”, (10 November 2008) online: Inuit Circumpolar Conference <http://inuitcircumpolar.com/files/uploads/icc-files/PR-2008-11-10-KuujjuaqSovereigntyWorkshop.pdf>.

181 Jabour & Weber, supra note 2.182 Robert H Jackson, Quasi-States: Sovereignty, International Relations, and the Third World (Cambridge:

Cambridge University Press, 1990) at 50–81.183 Mark A Levy, Robert O Keohane & Peter M Haas, “Improving the Effectiveness of International

Environmental Institutions” in Peter M Hass, Robert O Keohane, & Mark A Levy, eds, Institutions for the Earth: Sources of Effective International Environmental Protection (Cambridge: MIT Press, 1993) 397 at 415–417.


nations. Domingo has also advocated the use of existing traditional international systems in such a way that they fit with the “new global law.”184

6. INTERCONNECTIONS BETWEEN THE SELECTED GOVERNANCE SYSTEMS IN THE NORTH

It is useful to first review the objectives of the selected forms of governance systems, in order to determine the reasons for their interrelationships.

The main objectives of the AC are environmental protection and sustainable development in the Arctic.185 Generally, environmental protection refers to the practices of protecting the environment for the benefit of the natural environment, as well as that of its inhabitants.186 This concept connects several northern issues: the physical environment (e.g., ice, snow, and wilderness), biological life forms (e.g., flora, fauna), and the traditional cultures of northern inhabitants.187 Sustainable development includes, inter alia, the use of natural resources for the well-being of local peoples and future generations, the contribution of economic activities to local development, and the adaptive capacity of local inhabitants to rapidly changing condi-tions.188 Hence, sustainable development refers to the overall improvement of the situations of local peoples and future generations.189

The BEAC aims to promote sustainable economic and social development in the Barents Region.190 The Barents Region actually only covers a part of the circumpolar North, but the BEAC’s aims are similar to those of the AC. The objective of the BRC encompasses the promo-tion of a closer cooperation among the inhabitants of the North.191 Whilst closer cooperation is a vague term, the BRC’s objective resembles those of the AC and BEAC. The NF also aims to improve the quality of life of inhabitants of the North and to support their sustainable development192—again, apparently similar to the other three governance systems. Thus, their objectives are diverse, but work towards a single goal: the well-being of northern residents. As any collective initiative in reaching a common goal that targets a particular geographic location and its people may provide better results, the remainder of this section examines the interrela-tionships of these governance systems.

In addition to the eight Arctic states, France, Germany, the Netherlands, Poland, the United Kingdom, Japan, and Italy participate in both the AC and the BEAC as observer. Moreover, the European Commission holds the same position as the aforementioned states as

184 Rafael Domingo, The New Global Law (Cambridge: Cambridge University Press, 2010).185 Ottawa Declaration, supra note 12, art 1(a).186 See Carlo Carraro & Domenico Siniscalc, “Strategies for the International Protection of the Environment”

(1993) 52:3 J of Pub Eco 309.187 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 209.188 World Commission on Environment and Development, Our Common Future: From One Earth

to One World, UN Doc A/42/427 (1987) chap 1, arts 27-30, online: United Nations <http://www.un-documents.net/ocf-ov.htm#I.3>.

189 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 209.190 Kirkenes Declaration, supra note 38.191 Protocol Agreement, supra note 63, arts 1-3.192 NF Bylaws, supra note 76, art I sec 1.2.


a member in the BEAC and an ad hoc observer in the AC. Thus, the same group of states are involved in the AC and the BEAC in either member or observer capacities. A large number of states (Canada, Iceland, Japan, South Korea, and Russia) participate in the AC, and are also connected to the NF through their subnational governments. Yet, it is somewhat challenging to determine the exact interrelationships of the selected governance systems since these systems have a number of ambiguous characteristics. Most systems state that they maintain firm and strong relationships with each other through both their policy-level meetings and their website statements. However, there does not appear to be much practical cooperation in their oper-ational areas or daily activities.193

The NF has observer status at the AC, which has provided the NF with the opportun-ity to collaborate with the AC’s working groups.194 At present, the NF is a member of the SDWG of the AC, and is currently taking part in a project of the AC, the Infectious Diseases Surveillance Network.195 The NF has also expressed the intention to arrange a joint meeting with the SAO,196 though nothing concrete has yet emerged from this intention.197 The BEAC has previously suggested that the AC exclude “environmental hot spots” from its mandate, because the hot spots it deals with are located in the Barents Region, and continue to be addressed by the BEAC.198 The Barents Institute in Kirkenes, Norway, and the University of Tampere in Finland jointly conducted research into selecting possible fields of cooperation between the AC and the BEAC.

The BRC maintains a semi-formal relationship with the BEAC. They are connected in such a way that it is initially difficult to determine whether they are in fact two different entities. However, the fact that they have separate policy-making organs and operational tools indicate that they do constitute separate governance systems. 199 The BRC also cooperates with the NF.200

Often, these governance systems express normative or conceptual support for the programs and initiatives launched by the other systems and are very encouraging of their endeavours.201 This encouragement may include formal endorsement, along with disseminating the relevant information from others systems’ projects on their respective websites.202 The involvement of common actors has also created incidental communication. For example, the ministers of foreign affairs meet regularly in the AC and BEAC. Both forms of governance systems have

193 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 210.194 Ibid.195 Ibid.196 Northern Forum, Harbin Declaration, Seventh General Assembly of The Northern Forum (Harbin,

Heilongjiang Province, People’s Republic of China, 19 June 2005) at 5. See also Young, “Common ground”, supra note 9 at 290.

197 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 290.198 Waliul Hasanat, Interview with Alexander Ignatiev, Head of the International Barents Secretariat at

International Barents Secretariat (Kirkenes, Norway, 4 October 2011).199 Hasanat, “Cooperation in the Barents”, supra note 105 at 306-307. 200 Whitehorse Declaration, supra note 155, s D.6.201 Hasanat, Soft-Law Cooperation in International Law, supra note 9 at 211.202 Ibid.


found it important to convene ministerial-level meetings of other departments (e.g., health and environment),203 although the same people may take part in meetings organized under different bodies.204

Both the AC and the BEAC have connected their national parliamentarians at distin-guished forums, like the CPAR forum and the Barents Forum. In fact, the CPAR forum and the Barents Forum facilitate the workings of both governance systems with fruitful discussions and the preparation of recommendations for national governments and other relevant forums encountering emerging changes in the region. All of the governance systems put northern issues into the context of the global arena, and as such, have developed a practice of close cooperation with various international organizations and forums.

The governance systems also support each other conceptually, as they develop innovative ideas concerning sovereignty and participation, handle complex interdisciplinary and cross-border issues, and have members who follow the normative rules established by these systems. They have shown their competence in creating legally binding instruments, even though they only constitute soft-law forms of governance, as discussed above. Thus, it is profound that they have built indirect and conceptual connections rather than practicing actual joint efforts in their operational fields.

7. CONCLUSION

The governance systems discussed in this article were established in the early 1990s. Special geographic and climatic situations in the circumpolar North, along with the distinct charac-teristics of its inhabitants, have facilitated the formation of soft-law governance systems in the region rather than formal international organizations. Each system has its own uniquely phrased agenda. However, their main objectives appear very similar in terms of achieving the long-term goal of developing and maintaining the well-being of the region’s residents. All of the governance systems have paid special attention to issues connected to environmental protection and the indigenous peoples of the North. Moreover, a number of common actors participate in these governance systems.

Each system has an innovative legal status. The AC and the BEAC, two national-level governance systems, may be categorized as pure soft-law governance systems. The NF and the BRC, formed at subnational levels, can be seen as exercising the delegated power of national governments, and be categorized as hybrid soft-law governance systems. However, the concept of hybrid soft-law has yet to receive broad acceptance among international lawyers, and further in-depth research to develop its parameters as a distinct concept under modern international law is required.

International law has also gained new terminologies through these governance systems. The AC has introduced the concept of Permanent Participant. The NF has created a broad definition of “northern regions” and has introduced the concept of the “common environmen-tal domain”. The the BEAC and the BRC have defined the “Barents Region” and have estab-lished working groups that are responsible for this region to decision-makers at national and regional levels, for the BEAC and the BRC, respectively. All of the governance systems have

203 Ibid.204 It is common practice for the Arctic states to appoint the same person as CSO and SAO.


established specific customs that have been respected since the inception of these systems. They also strictly follow procedural formalities with respect to specific issues. They have contributed to the conceptual development of international law concerning different environmental issues. Moreover, their facilitation in negotiating and concluding certain international agreements has added a new step for the development of international environmental law.

These governance systems have created some debates, mainly in regard to conceptual issues between old and new structures of international law. These debates have added a certain dynamism to the field. However, the records of these governance systems show that commit-ments can be met using informal procedures, along with formal procedures. The wide range of participants—national governments, subnational governments, the business community, groups of indigenous peoples, non-governmental and international organizations outside the North—has brought new perspectives to resolving common concerns and cross-border challenges. As such, these systems can be seen as partners in global development cooperation through their relationships with the various international actors focusing on raising the global awareness of northern issues.

The norms created by the governance systems have clear consequences for their members and associated partners, and pose several challenges to classical international law. Such norms are categorized as strict, flexible or optional in terms of compliance, and also generate dif-ferent types of obligations. It is thus no surprise that the school of thought termed Global Administrative Law has gained prominence among international lawyers.205 Its particular insight is that one should not begin by examining the formal status of a legal instrument, but rather by analyzing it in terms of its functional attributes: if there is an international regime that falls outside of the concepts of international law, it is important to focus on attributes such as accountability and legitimacy.

With a few exceptions, there is a lack of significant joint projects or programs that connect the governance systems. In the long term, a strong coordination mechanism would facilitate their work and enhance their ability to achieve their common goal. Such a coordination mech-anism may also provide these selected governance systems with new ideas, for example, sharing responsibilities and reducing the number of governance systems in the region through mergers.

Among these governance systems, the AC maintains the highest profile and serves as an umbrella for most forms of international cooperation in the Arctic. The BEAC has a middling level of importance, and its connections with the BRC seems relatively more practical in terms of regional participation. The NF is becoming less significant due to the decreasing interests of a number of Arctic states in participating in the NF (along with the withdrawal of certain regions from the NF altogether).

Future joint initiatives connecting the selected governance systems do not seem improb-able, as they have similar groups operating within them and they are progressing toward a shared long-term goal. As such, a timely proposal offered in an appropriate manner would likely provide better outcomes in terms of protecting the environment of the North. One pos-sible suggestion is that the AC lead the major programs of such a joint initiative—considering its recent moves towards formalization and inclusion of an increasing number of states—whilst

205 See Nico Krisch & Benedict Kingsbury, “Introduction: Global Governance and Global Administrative Law in the International Legal Order” (2006) 17:1 EJIL 1.


offering some activities to the BEAC. At the same time, the BRC could be fully incorporated as a subordinate entity under the BEAC. If the AC granted observer status to the governments of the aforementioned “northern regions,” this would also remove any further need for the NF.

searching for synergies in international governance …1. introduction 7 2. major governance systems...

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