Nigel Bankes

Climate Governance in the Arctic: Introduction and Theoretical Framework

The introductory chapter describes the objectives of this edited volume and provides a theoretical framework for considering the contributions of the various authors. The objective of the book is to take an institutional perspective on climate change in the Arctic discussing both mitigation and adaptation. Beginning with an account of the soft law institutions in the Arctic, the chapter then briefly canvasses the relevance of general legal norms that apply in the Arctic e.g. the law of the sea and international human rights. The theoretical framework is introduced by a discussion of key terms including mitigative and adaptive capacity and vulnerability. The chapter canvasses the different perspective of both international lawyers and international relations scholars and some of their terminology before concluding with summary accounts of the various contributions.

Climate Change and the Regime for the Conservation of Polar Bears

In 1973 the polar bear range states agreed to conserve polar bears and the ecosystem of which polar bears are a part. Commentators generally regard that Agreement as a success. The Agreement protected polar bears principally by prohibiting the unsustainable harvest of bears. The bear has also been protected by its listing on Appendix II of the Convention on International Trade in Endangered Species (CITES). However, it is now apparent that the principal threat to the polar bear is climate change rather than hunting or international trade in bears and bear products.

Precluding the Applicability of Section 2 of Part XV of the Law of the Sea Convention

ABSTRACT Part XV of the Law of the Sea Convention (LOSC or the Convention) affords priority to section 1 of Part XV over the compulsory procedures entailing binding decisions laid out in section 2. This article examines the jurisprudence that has arisen with respect to Articles 281–283 of section 1 of Part XV. Article 281 allows parties to the Convention by agreement between them to opt out of compulsory and binding dispute resolution. Article 282 is a choice of forum provision that allows parties to prefer binding dispute resolution under the terms of another agreement “or otherwise,” such as by way of optional declarations under the Statute of the International Court. Article 283 requires the parties to a dispute concerning the interpretation or application of the Convention to exchange views regarding the appropriate means of settling that dispute before triggering the compulsory procedures entailing binding decisions of section 2 of Part XV.

Recognition of Indigenous Land Rights in Norway and Canada

Many states offer constitutional protection to the traditional lands of indigenous peoples. International treaties protecting ethnic minorities and indigenous peoples also require protection of the rights of indigenous communities with respect to traditional territories. States have followed different routes in identifying the ownership and resource rights of indigenous communities. In Norway, the Courts have traditionally applied the rules on prescription and immemorial usage, developed through centuries in the farming societies of Scandinavia. The legislature has chosen to follow the same approach in the Finnmark area of Norway under the terms of the Finnmark Act (2005). By contrast, in Canada, a settled colony with an English common law tradition, the Courts have developed a sui generis approach to the recognition of Aboriginal title. This article examines the rules for identifying and legally recognising the traditional lands of indigenous people in Norway and Canada with a view to reflecting on similarities and differences.

Using Strategic Environmental Assessments to Guide Oil and Gas Exploration Decisions: Applying Lessons Learned from Atlantic Canada to the Beaufort Sea

Strategic Environmental Assessments have been used on the Atlantic Coast of Canada to inform oil and gas exploration decisions. Both the Newfoundland and Nova Scotia offshore petroleum boards have about a decade of experience with strategic environmental assessments. In the Beaufort Sea, there is no such process currently in place to guide decisions about oil and gas exploration. In the wake of the Deep Horizon spill in the US, this article considers the lessons learned from the Atlantic Canada experience, and makes recommendations for the design of an oil and gas strategic environmental assessment process for exploration in the Beaufort Sea.

Conclusions on climate governance in the Arctic

This concluding chapter seeks to systematize the mitigative and adaptive responses to climate change considered by the different authors of this volume by posing four questions: who is charged with adaptation and mitigation, which adaptive and mitigative measures are being targeted, what are the means for adaptation and mitigation, and, finally, are the suggested actions able to support expressed aims for adaptation and mitigation? The discussion of these questions reveals the importance of the current institutional contexts in the framing of adaptation and mitigation issues. It also emphasises the importance of context and the variety of adaptive measures that are being considered, both within national and local contexts but also within the patchwork of different international regimes that touch the Arctic. The chapter concludes by canvassing recent governance developments and especially the initiative of the five coastal states (the Ilulissat Declaration) and that of the European Union. These developments have the potential to challenge existing governance structures based on the eight member states of the Arctic Council and its system of permanent representatives.

Compulsory and Binding Dispute Resolution under the United Nations Convention on the Law of the Sea: Introduction

To ensure the implementation of the provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC), as well as to ensure that disputes about its interpretation or application are resolved through peaceful means, a comprehensive dispute resolution system was included in Part XV in the LOSC. Part XV consists of three main sections, as well as supplementary annexes addressing the various dispute resolution bodies referenced in the LOSC. This extensive set of rules collectively makes up the dispute settlement machinery within the LOSC and is one central pillars of the Treaty. A vast majority of the world’s states have ratified the LOSC. Adjudicative third-party dispute settlement under the LOSC has increased in number and subject-matter diversity. The International Tribunal for the Law of the Sea (ITLOS) has dealt, for example, with claims for damages arising out of the alleged unlawful arrest of vessels; requests for the release of detained vessels; maritime boundary delimitation; illegal, unreported, and unregulated fishing; and issues concerning responsibilities and liabilities of states with respect to deep seabed mining. The collective case law, including several awards rendered by arbitral tribunals under Annex VII of the LOSC, has contributed markedly to the clarification of Part XV of LOSC. On 21–22 September 2016, the K. G. Jebsen Centre for the Law of the Sea at UiT The Arctic University of Norway in Tromsø, Norway, arranged a two-day workshop on dispute settlement in the law of the sea. The workshop focused on those provisions in the LOSC dealing with compulsory procedures entailing binding decisions. The purposes of the workshop were to assess the experience gained so far with the compulsory dispute resolution provisions of the LOSC in international litigation, and to provide an assessment of whether these provisions have worked as intended by the treaty drafters and of the extent to which unanticipated issues have arisen. This special issue of Ocean Development & International Law consists of the research articles developed on the basis of the papers that were presented and discussed in plenary session at the Tromsø workshop.

Clarifying the parameters of the Crown’s duty to consult and accommodate in the context of decision-making by energy tribunals

This article examines two recent decisions of the Supreme Court of Canada dealing with the Crown’s duty to consult and accommodate Indigenous communities in the context of decision-making by Canada’s national energy regulator, the National Energy Board (NEB). While the Court reached a different conclusion on the merits in the two cases, the cases do articulate a common understanding of the relevant legal rules. As a consequence, the decisions offer important insights as to what will suffice to discharge the Crown’s obligations and what will not. The article outlines the evolution of the Crown’s duty to consult and accommodate in the context of the relationship between Indigenous communities and settler society within Canada and then examines the two decisions for the additional guidance that they offer to decision-makers and their advisers in the particular context of independent regulatory tribunals like the National Energy Board.

The Regime for Transboundary Hydrocarbon Deposits in the Maritime Delimitation Treaties and Other Related Agreements of Arctic Coastal States

ABSTRACT This article assesses the treaty practice of the five Arctic Ocean coastal states and Iceland in dealing with the issue of transboundary hydrocarbon deposits as part of the conclusion of maritime delimitation and other related agreements. That practice suggests a number of different ways in which states deal with the issue of hydrocarbon deposits bisected by a maritime delimitation: (1) silence, (2) a standard unity of deposit clause, (3) more complex variations on the standard clause including framework agreements for the development of transboundary deposits, and (4) a delimitation line with some form of joint development zone. This article assesses the Arctic state practice within this typology seeking to supplement the existing literature which tends to focus on the North Sea and Southeast Asia.

Introduction: navigating multilevel governance in aquaculture

This volume of essays examines the legal and related policy issues associated with the development of the aquaculture sector, principally in relation to marine aquaculture or mariculture operations. There is little doubt about the current and future global importance of aquaculture. The United Nations Food and Agriculture Organization’s (FAO) report on The State of World Fisheries and Aquaculture (2014) notes that global fish production has grown steadily ‘with food fish supply growing at an average annual rate of 3.2 per cent, outpacing world population growth at 1.6 per cent’.1 However, most observers consider that the capture fishery is unlikely to grow2 and thus, if overall fish production is to continue to outpace population growth and contribute to increased availability of food protein and food security, this enhanced production will need to come from the aquaculture sector. The importance of fishbased protein production for food security can hardly be overestimated. According to the FAO, ‘[f]ish protein can represent a crucial nutritional component in some densely populated countries where total protein intake levels may be low’.3 The global capture fishery in marine waters was 82.6 million tonnes in 2011 and 79.7 million tonnes in 2012 (with the difference principally due to a decline in the anchoveta catch).4 The total aquaculture production in 2013 (both marine and inland) was about 97.2 million tonnes, including close to 70.2 million