Ympäristö- ja vähemmistöoikeuden tutkimusprofessori
OTT Timo Koivurova
The Importance of International Environmental Law in the Arctic
International Environmental Law (IEL) is a branch of international law that focuses on international environmental protection. Although its place in international law is already quite impressive, it is still a relative newcomer in the field. It was only after the 1972 Stockholm Conference on the Human Environment that international environmental protection efforts really started. In time, these prompted a corresponding development in the academic world, with legal scholars increasingly specializing in IEL, and textbooks being published in the discipline.
IEL norms apply both universally and regionally. Some principles of IEL, such as the principle of due diligence, are part of customary international law; that is, they require a certain kind of behaviour from all the legal subjects of international law, primarily states and their organizations. Principle of due diligence requires the legal subjects to ensure that no damage will occur to the environment of other states, or of areas outside their maritime jurisdiction. But the distinctive feature of IEL - in comparison to many other fields of international law - is that most of its norms are created by international treaties, which are binding only on the parties to those treaties. Many of these are global in scope, such as the UN Framework Convention on Climate Change, but a substantial number also apply in certain regions.
International Environmental Law in the Arctic
The majority of IEL scholars take the view that there are no specific IEL norms that apply in the Arctic region; the exception is Article 234 of the United Nations Convention of the Law of the Sea, which gives coastal states larger powers to control navigation in ice-covered areas in order to protect the Arctic environment. No one disputes that there are many legally binding international treaties that aim to protect the other circumpolar area, the Antarctic. But because the international environmental protection efforts focusing on the Arctic have been codified as declarations, strategies, and the like, the majority of IEL scholars consider them to be non-binding in international law but binding in some other manner, mainly in what is know as soft-law. Although the argument asserting the soft-law status of Arctic co-operation is hard to defend, as I have tried to demonstrate in my dissertation, it has to be accepted that the current consensus regards the co-operation as an example of soft-law co-operation, whatever is meant by the term.
This is not good news for the Arctic environment. The Arctic and its ecosystems are generally regarded as being more vulnerable to human-induced pollution than other areas of the globe. For example, Arctic food chains are short and simple, making it harder for the ecosystem to recover from pollution damage. Many commercial activities are also riskier in the often cold and dark Arctic conditions, increasing the likelihood of environmental accidents, which, if they take place, are hard to control and contain due to the same conditions.
If the general consensus is that the Arctic environment is in many ways more vulnerable to human-induced pollution, should not the generally applicable norms of IEL – those set out in international treaties and customary international law – apply more strictly to the Arctic. Even though this would be a desirable understanding of IEL, it is not the accepted one. The customary law of treaties gives states the power to freely decide such matters, but the Arctic states have not exercised that option.
From the beginning, the main focus in the Arctic co-operation has been international environmental protection. The Declaration and Strategy for the Protection of the Arctic Environment was signed here in Rovaniemi in 1991 by the eight Arctic states (the five Nordic states, the Russian Federation, the United States and Canada). Under this co-operation, known as AEPS, four environmental protection working groups were established: Protection of the Arctic Marine Environment (PAME), Conservation of Arctic Flora and Fauna (CAFF), Emergency Prevention, Preparedness and Response (EPPR) and Arctic Monitoring and Assessment Programme (AMAP). A Task Force on Sustainable Development was also created, which was soon to become one pillar of the Arctic Council, which was established in 1996. The AEPS programmes were soon integrated into the work of the Council, forming the second pillar of its work.
The Arctic Council has also commenced new environmental protection initiatives, such as the Arctic Climate Impact Assessment (ACIA) and the very ambitiously titled Arctic Council Action Plan to Eliminate Pollution in the Arctic (ACAP). Even though environmental protection has maintained its importance in the Arctic Council, the level of ambition of this co-operation has not been too far-reaching. In the Arctic, the focus has been on assessing environmental threats and damage that has already been incurred, rather than on establishing international treaties to combat these threats, as was done in the Antarctic.
According to AMAP, most of the human-induced pollution in the Arctic is not produced in the region but enters it via rivers and ocean and atmospheric currents. The principal threats to the region, ones already documented, come from outside: global climate change, ozone depletion and persistent organic pollutants. These are dealt with through global environmental protection regimes, to which the Arctic Council can only make a minor contribution, especially in its present modest form.
Yet, there are also various environmental problems originating in the Arctic, whose solution could lie with the Arctic Council. One such threat is the increasing exploitation of the vast natural resources of the region, especially the mining of various minerals and oil and gas exploitation. With the development of technology, the Arctic is becoming an increasingly attractive place for companies interested in exploiting its resources. The threat is real and it is underscored in Globio Report of the United Nations Environment Programme, which observes:
In the last part of the 20th century, the Arctic has been increasingly exposed to industrial exploration and exploitation as well as tourism. The growth in oil, gas and mineral extraction, transportation networks and non-indigenous settlements are increasingly affecting wildlife and the welfare of indigenous people across the Arctic…A 2050 scenario was made using reduced, stable, or increased rates of infrastructure growth as compared to the growth between 1940-1990. The scenario revealed that at even stable growth rates of industrial development, 50-80 % of the Arctic may reach critical levels of anthropogenic disturbance in 2050, rendering most of these areas incompatible with traditional lifestyles of many subsistence-based indigenous communities (p. 2)
The Arctic is already - and is increasingly becoming - integrated into the global market place. All the Arctic states, except Russia, are parties to the international free-trade regime, now operating under the World Trade Organization, and Russia is waiting in line to join the Organization. The WTO exercises enormous influence on how business is done worldwide, including the Arctic. By restricting the power of nation-states to interfere in the operation of market place, international economic law also ensures that all companies have the right to exploit the resources of the Arctic on a non-discriminatory basis. This development can be seen here in Finnish Lapland, where enterprises from all over the world have started to extract various minerals.
But the global market place, whose smooth operation is guaranteed by international economic law, does not operate without any social restraints. IEL has grown rapidly to cover almost all aspects of environmental protection. It has been estimated that at present there are about 1000 treaties that include environmental protection norms; of these treaties, 150 are multilateral. Important factor in establishing social restraints for companies is also international human rights law. This body of law exercises enormous influence world-wide, is codified in an impressive number of international treaties and aims to guarantee that basic human rights are not violated, for instance., in business activities.
For almost any imaginable situation of exploitation of natural resources in the Arctic, one can find plenty of norms that might be invoked by one group or the other to protect their interests, a situation reflecting the growing complexity of law in general. A good example of this complexity was witnessed here in Finnish Lapland in the Vuotos case. The planned construction by the Kemijoki company of an artificial lake and a dam on the upper course of the Kemijoki River triggered various legal systems - international human rights law, IEL, European environmental law and national water law.
Environmental Assessment in the Arctic
The increasing exploitation of the extensive natural resources of the Arctic is thus well regulated, if not in fact excessively so. The most promising method in IEL to manage these situations - before they become legal disputes - is clearly the Environmental assessment procedure (EA). This procedure aims to produce scientific information about the likely damaging effects of a proposed activity before it is constructed. The process involves all of the stakeholders – environmental NGOs, citizen groups, private individuals, companies and environmental administrations. The EA procedure in the Arctic raises issues that lie very much at the interface of environmental law and minority law, the area of expertise of this research professorship. In this presentation, The term ‘EA’ is used to refer to all environmental assessment procedures; ‘EIA’ refers to project-level EA procedures and ‘SEA’ denotes the evaluation of the environmental impacts of plans, programmes and policies.
The EA procedure, or at least EIA, has spread all around the world and is now regulated in most states. If the impacts of an activity are likely to cross state boundaries, there are international treaties, which ensure that the private and public sectors of the potentially affected states can participate in the national EA procedures of the origin state. In addition, many international funding institutions have their own EA rules designed to ensure that the projects they fund also meet environmental protection objectives.
Differences can be found between the national EA procedures, since the idea of EA has been implanted into different national traditions of environmental protection. Yet, certain basic elements of an EA procedure can be identified. The main function of an EA procedure is to produce scientific information on the likely environmental effects of a proposed activity. Another important function is to involve the public to encourage them to convey their views on what should be studied in impact studies and to comment on the quality of the environmental impact statement, a document describing the results of the impact studies.
Most environmental problems are nowadays regulated in different levels of legal systems, in IEL, in European environmental law and in the national environmental protection systems. This is very much the case also in the Arctic. EA is first of all regulated in IEL. The Arctic states are required under the customary law principle of due diligence to ensure that no damage will occur to the environment of other states, or of areas outside their maritime jurisdiction, as a result of the activities under their jurisdiction and control. This principle clearly requires transboundary procedures between states already in the planning stage of the proposed activity, including assessment of likely transboundary impacts. It should be kept in mind, however, that the generality of the principle of due diligence makes it possible that states will not follow it in practice. It is therefore important that the principle is implemented through international treaties, the main one being the Convention on Environmental Impact Assessment in a Transboundary Context, known as the Espoo Convention.
This Convention implements the principle of due diligence in an ideal manner. It requires the states to notify each other when a significant transboundary impact is likely to follow from a proposed activity - as well as obligates them to make a transboundary impact assessment - and consult the other state. In addition, the public of the potentially affected state has a right to participate in the EIA procedure of the origin state on the same footing as the public of the state of origin. The Espoo Convention is very important in the Arctic since it has been signed by all eight Arctic states, an act that in itself carries some legal effects under the customary law of treaties, and has been ratified by five of them. The Convention has also recently been complemented by the Protocol on Strategic Environmental Assessment, which, when it enters into force, will ensure that the states parties introduce a SEA procedure for governmental plans and programmes, and consult the other states facing possible environmental impacts.
The Arctic EA system seems most complex when national EA procedures are examined. The state of Alaska and the entire Russian Arctic are the least problematic. Alaska has its own EA procedure, modelled after the federal EA procedure, and Russia has federal EA regulations. Canadian provinces and territories have quite extensive autonomous powers in many fields of policy, including environmental policy; the northern territories of Canada have their own kinds of EA procedures, which place more emphasis on the rights and interests of indigenous peoples. Finland, Sweden and Denmark are Member States of the EU, but since Greenland and Faroe Islands chose not to become part of the EU, these home-rule governments have created their own EA procedures. Of all the Arctic states, only Finland and Sweden are required to implement the EIA and SEA directives of the EU. However, because of the European Economic Area agreement between European Free Trade Association (EFTA) and EU, EFTA states Iceland and Norway are required to implement the directives as well. An exception is the Svalbard Islands, which was excluded from the EEA agreement and now has an EA procedure of its own, enacted by Norway.
The structure of EA regulation seem rather complex, reflecting the general the complexity of Arctic governance. In functional perspective, however, the complexity lessens somewhat. In fact, without distorting things much, one can say that four major federal state legal systems meet at the Arctic Ocean: The Russian Federation, the EU, Canada and the United States. Even though the EU is not a federal state - legal thinking hovers between considering it an inter-governmental organization or a sui generis legal system – in functional terms it is much more integrated federal system than its North American counterparts. This is well seen in EA regulation, which requires all Member States – as well as all EFTA states (through the EEA agreement) – to implement the EIA and SEA directives, which set minimum requirements for the kind of EA procedure the Member States and EFTA states must have. The EA system in the EU goes much further than that in Canada or in the US, where the federal government may only apply its EA procedures to its own activities or to activities which it has funded or for those it has issued a permit. As a result, most private economic activities are excluded from the scope of federal EA. In the US and Canada, states and provinces can freely decide whether to even have an EA procedure or not.
Even though there are some pieces of EA legislation that apply particularly to Arctic conditions, such as the EA procedures applicable to the Svalbard Islands and the Nunavut territory in Canada, it is mostly the case that the EA rules in international, European and national law do not take into account the very specific Arctic circumstances. With the exception of Iceland, the capitals of the Arctic states are far away from the states’ Arctic territory, and it is thus no wonder that the Arctic perspective does not figure in their EA procedures. This was the reason why Finland initiated a project in 1994 in AEPS co-operation to draw up guidelines on how to do EIA in Arctic circumstances. After intensive preparatory work and international negotiations the Alta Ministerial meeting of 1997 accepted two instruments that both address EA in the Arctic:
We receive with appreciation the “Guidelines for Environmental Impact Assessment (EIA) in the Arctic” and the “Arctic Offshore Oil and Gas Guidelines” developed under the AEPS, and agree that these guidelines be applied (para. 3)
In these EIA Guidelines, the special conditions of the Arctic - the vulnerability of the region’s ecosystems and the presence of indigenous peoples - have been taken into account in order to adjust the operation of international and national EA laws. Even though these guidelines were agreed to be applied by the Arctic states in Alta ministerial and the Arctic Parliamentarians asked their governments to implement these EIA Guidelines in their Salekhard meeting in 1998, studies done at the Arctic Centre reveal that these Guidelines have not made their way into the practice. In fact, only five years after their formal approval in the Alta ministerial meeting, the Arctic Centre conducted a study, commissioned by the Ministry of the Environment, showing that almost none of the Arctic stake-holders – companies, regional environmental administrations, indigenous peoples, etc. – even knew that the Guidelines existed. Several reasons can be outlined for this failure of the EIA Guidelines to attain their desired goal, namely to really influence how Arctic EA is done. One is that EIA Guidelines were left without any real follow-up mechanism; a website was established but this only provides general information about Arctic EA’s. This is in direct contrast to the follow-up method devised for the other instrument adopted at the same time as the EIA Guidelines, the Arctic Offshore Oil and Gas Guidelines, which contains some EA recommendations. The Offshore Guidelines are revised periodically, a mechanism which clearly contributes to keeping them a living reality.
Environmental Assessment and the Arctic Indigenous Peoples
The EIA Guidelines outline quite a number of important recommendations as to how to involve the region’s indigenous peoples, but, as mentioned above, these Guidelines have not found their way into practice. From the perspective of the original occupants of the Arctic, the Arctic indigenous peoples, (who live in all the Arctic states with the exception of Iceland), this is very unfortunate, because it is precisely natural resource exploitation projects that many times threaten their traditional livelihoods and culture in general. In most international and national laws regulating the EA procedure indigenous peoples are not treated as special participants.
However, international human rights law can provide some important protection for Arctic indigenous peoples. This body of international law is increasingly used by the indigenous peoples in general, including Arctic indigenous peoples, to protect their interests. ILO Convention No. 169 on Indigenous and Tribal Peoples contains some clauses requiring special participation rights for indigenous peoples in EA procedures as well, but Norway and Denmark are the only Arctic states to have ratified it. The most promising and, in effect, an international treaty already resorted to by Arctic indigenous peoples to protect their interests, is the International Covenant on Civil and Political Rights. The Covenant applies throughout the Arctic since all the eight Arctic states are parties to it. The Covenant does not contain any express provisions on indigenous peoples but its article 27 does apply to the rights of minorities generally. At the time when the Covenant was adopted, in 1966, the indigenous peoples movement was yet to be born and thus there could not have been any separate provision on their rights. However, international human rights law has evolved with the development of societies, both international and national. The Human Rights Committee, a body that supervises the implementation of the Covenant, has made some important contributions suggesting how the Covenant’s provisions should be interpreted, including Article 27.
The Committee receives country reports from its 151 states parties, gives concluding observations on the human rights situation in each state, and on the basis of these country reports issues General Comments. These generalize the experience gathered from examining the country reports and provide an authoritative interpretation of the Covenant provisions, including Article 27. The Covenant is complemented by a Protocol on the basis of which the Committee can hear complaints from individuals under the jurisdiction of state party. There are 104 parties to the Protocol; this number includes all of the Arctic states but the United States. The Arctic indigenous peoples have been active in defending their rights on the basis of Article 27. For instance., the Finnish Saami have brought the Finnish government before the Human Rights Committee in two cases in order to defend their traditional livelihood, reindeer herding, against economic activities in their traditional area for which the state has granted a permit, such as stone quarrying and deforestation.
Of utmost importance is that the Committee has outlined criteria by which Article 27 should be interpreted from the perspective of indigenous peoples. Article 27 reads as follows:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Firstly, the Committee has interpreted the concept of ‘culture’ very broadly, to include traditional livelihoods of indigenous peoples - such as hunting, fishing and reindeer herding. Secondly, the Committee interprets Article 27 as requiring states to take into account two elements, when they plan or grant permits for economic activities in the traditional territories of indigenous peoples. There has to be a meaningful consultation on the part of the state with the indigenous peoples, one genuinely striving to find a solution to the conflict between different land uses (procedural criterion). In addition, an economic activity proposed to operate in the traditional territories of indigenous peoples may not threaten the economic viability of the traditional livelihood (material criterion). Also very important is the criterion that the state must constantly ensure that the cumulative impacts of several developments do not pose threats to the economic viability of traditional livelihoods.
The influence of the Covenant and its Article 27 cannot be underestimated in the making of Arctic EA procedures. First of all, the Article 27 binds legally all eight Arctic states. As the Committee has authoritatively interpreted it, the Article requires a special position for the Arctic indigenous peoples in the making of Arctic EAs. If the natural resource exploitation in question threatens their traditional territories, they have to be meaningfully consulted by the state authorities. The Committee cannot specify this general requirement in much detail within the scope of its procedures but in the Arctic setting the requirement would seem to go much further than that set out in the EIA Guidelines. What is needed in Arctic EAs are, according to Article 27, separate consultations with the indigenous peoples, not ones requiring their prior consent but ones obligating the decision-makers to take their perspective on the proposed economic activity seriously into account in all phases of EA procedure. The material criterion of maintaining the economic viability of traditional livelihoods sets out a general standard, which must influence what issues are studied in impact assessment phase; this criterion is, of course, directed more to the permitting authority, who makes the final decision on whether the proposed activity is to proceed and under what conditions.
It can be observed from all of the above that the challenges to Arctic, IEL and general legal research are manifold. These challenges are enormous within legal research alone; they are even greater when we pursue multidisciplinary understandings of the issues. The need for interdisciplinary dialogue is evident, especially in IEL, and the framework for this dialogue is well established for instance, with these three Arctic Centre Research professorships. However, addressing this very complex task is clearly beyond the scope of this presentation.
There are two main challenges to Arctic and IEL legal research. The regulatory environment in almost all aspects of law has become increasingly international and with good reason: most of the problems of human societies nowadays can only be effectively countered by global action. Problems such as global pollution, terrorism, economic instability, and the proliferation of nuclear weapons, to name but a few, require global solutions and universally applicable norms. This situation has manifested itself in international law, which has seen an enormous number of international normative instruments being concluded between states and within inter-governmental organizations in almost all aspects of policy-making. In IEL, the proliferation of various kinds of international instruments has prompted a general call among those of us involved in international environmental protection to implement existing instruments rather than make any new ones.
This ‘move towards implementation’ has manifested itself in IEL as a change in focus from general international law to studying how international environmental law is implemented in European law and national legal systems, a development that requires increased understanding of the functioning of European and national legal systems. This is significant in the Arctic since there the interplay between international law, federal legal systems and the law of the relevant provinces and states is at the heart of understanding the functioning of law applicable in the region. This became quite evident in the structure of EA regulation in the Arctic reviewed above.
Another challenge in IEL and Arctic legal research comes from the process of sustainable development, which started from the Brundtland Report, culminated in the Rio Conference on Environment and Development in 1992 and was recently continued by the World Summit on Sustainable Development in Johannesburg in 2002. Here, IEL research, with its strong focus on international environmental protection, has had to come to grips with international policy-making, which includes an ever broader range of issues relating to sustainable development. This holistic international agenda has also reflected itself in international law, with some scholars calling for a new systematic perspective on international law - the law of sustainable development - which would include, for instance, international economic law, international human rights law and IEL. The main challenge for legal research in this development is that specialization in a certain field of law should not prevent the scholar from understanding all the legal disciplines affecting a certain problem, as, for instance, occurs with environmental pollution caused by natural resource exploitation. This was examined above in relation to natural resource exploitation in the Arctic and it seems clear that without a proper understanding of international human rights law, IEL and international economic law as well, the understanding of the regulatory system remains imperfect.
Both these main challenges to IEL and Arctic legal research require expertise, which seems almost impossible to attain by an individual legal scholar. One has enough work to master the field of IEL, with its 1000 international treaties and other norms, let alone familiarize oneself with a very complex system of law, such as European law, and many national environmental protection systems. In addition, one should also have a grasp of neighbouring legal disciplines. Despite the enormous nature of these challenges, this is what is required of law and legal thinking for it to contribute to rather than compromise sustainable development.
Certainly, these challenges should also be met by new theoretical perspectives of law, as the old theories are very much based on the functioning of Western legal systems; these theories confine themselves to national territory, and on the idea that various legal systems have their separate existence from each other. New theoretical perspectives should reflect the fact that already now the various legal systems are in constant interaction with each other. Another important development would be for the legal scholars of different disciplines to at least take these challenges seriously, and make an effort to open up their own perspective to legal systems of higher generality – international and European law – as well as neighbouring disciplines of law. This would already be quite an accomplishment, making it possible for legal scholars to co-operate across disciplinary boundaries within law, a development which itself would increase the prospects of law to really contributing to sustainable development.