Need a new treaty for polar cooperation? | Polarjournal
Minister Gudlaugur Thor Thordarson had handed over the symbol of the chairmanship of the Arctic Council, to the Minister of Foreign Affairs Sergey Lavrov for the Russian chairmanship in Reykjavik on May 20, 2021. Image: Gunnar Vigfusson / Icelandic Ministry of Foreign Affairs

The Arctic Council, based on a flexible legal form, also called soft law, has suffered from the current geopolitical tensions. Treaty organizations, on the other hand, are stronger because of their legal foundation. Could this be a new line of work for the future Norwegian presidency?

In almost a month, Norway will take over the chairmanship of the Arctic Council. It will be handed over by Russia for two years. The isolation of Russia does not facilitate dialogue between the members of the Council, since nothing can be decided without its agreement. This hinders the cooperation of nations and indigenous peoples on environmental, economic and maritime issues that are at the heart of the discussions. “It is a forum and not an organization defined by a treaty that legally binds its signatories,” explains Timo Koivurova, a specialist in Arctic law at the University of Lapland in Finland.

Timo Koivurova and his colleague Akiho Shibata from Kobe University in Japan published on March 17 in the Cambridge University Press journal the results of their research on the effect of the war in Ukraine on the Arctic cooperative system.

Soft law in the Arctic

The Arctic Council was built on a non-legally binding agreement between 8 Arctic states and 38 observers. “The position of indigenous peoples is perfectly unique in this forum; they sit at the same negotiating table as nation states. It is the flexibility of the legal status that makes their inclusion in the discussions possible. The Arctic Council does not have a clear foundation from the point of view of the international legal system,” describes Timo Koivurova. It is based on the 1996 Ottawa Declaration, a legal instrument that experts call soft law. Here no party is united by law around the table, it is a form of mutual commitments of states to define their future actions.

Soft law can induce parties to an international cooperation to comply with declarations. No one doubts that the UN has an influence on the behavior of states. That’s why it’s called soft law, this softer path offers more flexibility in how countries follow UN resolutions.”

Timo Koivurova

After February 24th, 2022, the Arctic Council was directly affected by the Russian attack. On March 3, the 7 Western Arctic states declared that they would not travel to Russia for the meetings, and that they would temporarily halt their participation. Russia countered that it would continue to hold the presidency at the national level in order to insulate the Council from international tensions.

The robustness of treaties

Unlike soft law, treaties have proven to be stronger in this geopolitical context, as the thresholds for a state to be excluded in this cooperative framework are very high, according to the customary law of these treaties. “For the Svalbard Treaty, the parties are legally bound to each other, Russia retains its rights, because there are written tools that refer, such as laws, agreements or governances, and there is legal advice that helps in their interpretation. The Svalbard Treaty does not imply a meeting and leaves the control and its application mainly to Norway,” he describes. The involvement of Russia in Svalbard concerns mining, tourism, fishing and the presence of Russian nationals well anchored on the archipelago. This treaty system is not an exception.

The authors look back at the Non-Fishing Agreement in the Central Arctic Waters, for exemple, and here virtual and physical meetings have allowed for continued cooperation. “This and other examples show that in most cases Russia is not excluded from the negotiating table. From a legal point of view, the parties must ask themselves whether it has bridged any articles of the treaty in question,” he adds.

The Norwegian hope

Canada and Finland have in the past expressed the need for a treaty to strengthen the Arctic Council. “It did not seem to me that there was a real will in this sense lately within the Council. Today, however, it would have been very useful. We will surely face a period with little international cooperation with Russia, but the Arctic Council is still respected and it seems that everyone wants to continue to participate in this forum. We have some signals that Russia wants to do so as well”, explains Timo Koivurova.
Norway is organizing to take over the chairmanship of the Arctic Council; if the handover takes place on May 11, Timo Koivurova believes that “it will be difficult for the Council to take quick decisions that must be voted on unanimously. In such a tense geopolitical period, the parties remain cautious.”

It is fortunate that Norway is next on the list for the rotating presidency. It was able to deal as a NATO member with the Soviet Union during the Cold War. For Norway, the Ukrainian situation has not changed its approach, unlike Finland, for which the foundations of its defence policy have undergone a profound reform since its accession to NATO.

Camille Lin, PolarJournal

Link to study: Koivurova, T., Shibata, A., 2023. After Russia’s invasion of Ukraine in 2022: Can we still cooperate with Russia in the Arctic? Polar Record 59, e12.

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