20 January 2014
Protecting the Arctic area – a responsibility of many?
On 16 December 2013, the fourth SHARES Debate entitled Protecting the Arctic area – a responsibility of the Netherlands? was held in Amsterdam. The panel consisted of three speakers: Louwrens Hacquebord, René Lefeber, and Daniel Simons. André Nollkaemper acted as moderator. This blog post highlights the main parts of the debate.
Background – changes and threats
Through the melting of the ice of the Arctic, as a consequence of global warming, new economic opportunities for states and businesses arise. Areas that until recently were covered in ice are now opening up, creating, for example, permanent navigational routes between Asia and Europe, and enabling the exploitation of oil and gas resources that had been previously located in inaccessible areas. The Netherlands, as well as companies incorporated in the Netherlands, are among the many actors that want to capitalise on these new opportunities. The increase of economic activities can pose significant risks to the fragile ecosystem of the Arctic. This raises a fundamental question: who is responsible for the management, use and protection of the Arctic area? In this complex situation, question arise over the role and responsibility of the Netherlands and other actors, including Dutch companies such as Van Oord, Boskalis and Shell. The Netherlands’ policy framework concerning the polar regions (Beleidskader Nederland en de Poolgebieden 2011-2015) addresses the importance of the Arctic area for the Dutch industry, and describes the Arctic administrative system as a geographic and legal patchwork.
The role and rights of the Arctic states
A geological survey carried out by the United States revealed that there are (potential) substantial oil and gas reserves in the Artic area, which has led some of the Arctic states to claim parts of the sea and seabed (for more information and a map on Maritime jurisdiction and boundaries in the Arctic region of the International Boundaries Research Unit of Durham University see here). As a result of increasing oil prices, multinationals have an increased interest in the Arctic area. The five states bordering the Arctic Ocean (the United States of America, Canada, Russian Federation, Norway and Denmark (including Greenland and the Faroe Islands) can exercise authority under the 1982 United Nations Convention on the Law of the Sea (LOSC) over most of the oil and gas resources. They therefore play an important role and are primarily responsible for managing and protecting the Arctic environment.
The most important international governmental forum in the Arctic is the Arctic Council, which is composed of the five aforementioned states and Sweden, Iceland and Finland (the latter three being Arctic states that do not border the Arctic Ocean). These Arctic Council member states cooperate and coordinate Arctic issues in this Council. An increasing number of ‘observer’ states participate in this forum, including the Netherlands.
The main applicable legal instrument for the Arctic area is the LOSC. The LOSC provides in Article 56(1)(a) that a coastal state has, in the exclusive economic zone (EEZ) ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’. However, these states also have obligations. Importantly, according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment’. In order to achieve this, Article 194(2) LOSC provides that states ‘shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’. Further, ‘States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’ (Article 194(1) LOSC). In the EEZ, coastal states have functional jurisdiction over the protection and preservation of the marine environment (Article 56(1)(b)(iii)). Article 56(2) LOSC moreover provides for the notion of due regard according to which coastal states need to consider the rights and duties of other states while exercising their rights and performing their duties under the LOSC.
Both Hacquebord and Simons emphasised that exploratory drillings and oil production are more and more conducted ‘offshore’ (away from the coast). These activities increasingly take place in the direction of the geographic north pole, leading to risk and disturbance for flora and fauna. A potential disaster would be more difficult to fight and could have severe environmental consequences for this area. Be that as it may, currently, all Arctic states have planned offshore exploratory drillings in the area. Gazprom is most advanced in offshore oil production.
The role of third states and the Netherlands
Besides the Arctic states, many other states have become involved in the discussion on issues related to the Arctic, including China, Japan, South-Korea and the Netherlands. These third states see economically viable opportunities, having for example an interest in permanent navigational routes between Asia and Europe. It needs to be emphasised that according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment.’ Therefore each of these states has a (subsidiary) responsibility for the protection and preservation of this unique and fragile area.
The Netherlands, as a third state, has to strike a balance between the economic interests and gains involved and protecting the ecosystem of the Arctic. According to Hacquebord, because the Netherlands has a long tradition of being actively involved in scientific research in the area (starting 1882-1883 and going back to the time of Willem Barentsz at the end of the 16th century), it also has a responsibility for this area. The Netherlands currently also conducts research there. Because the Netherlands is connected via natural systems such as climate and migratory birds with the Arctic, sea level rise due to melting of the ice that occurs in that area also has consequences for the situation in the Netherlands as a low laying country. Although the ‘observer’ status of the Netherlands in the Arctic Council must not be overestimated, it can make a difference in the working groups of the Council (where policy on e.g. protection of the Arctic marine environment and sustainable development is being determined), through the Dutch researchers that are members of these working groups. For the PowerPoint presentation of Professor Hacquebord see here.
Lefeber, who recently represented the Netherlands at the International Tribunal for the Law of the Sea in Hamburg in the Arctic Sunrise case between the Netherlands and Russia, emphasised in his oral pleadings in this case the historical link of the Netherlands with the Arctic area (calling the account of Willem Barentsz and the other sailors part of the Dutch national cultural heritage). He mentioned that the Netherlands feels responsible to a limited extent for the Arctic area, since it recognises and respects the sovereignty of the Arctic states over the territory. The Arctic states have prescriptive jurisdiction and enforcement jurisdiction, also with regard to the adjacent maritime areas. However, the exercise of jurisdiction has to be in conformity with international law.
According to Simons, the role and influence of the Netherlands should not be overestimated, but it can however make a positive contribution to minimise environmental risks. As observer, the Netherlands can plead for strict and binding rules and thereby make investing in the oil/gas industry in this area costly and less attractive. Shell for example has conducted some exploratory drillings in the Arctic area, and Gazprom and Shell have recently established a joint venture. According to Simons, the Netherlands should exercise more restraint and look more critical to the long term interests it has as a low laying country.
The European Union
During the discussion with the audience the role of the European Union (EU) was discussed. The speakers noted that the EU is trying to become involved, a request for observer status is under continued consideration. The EU sees economic opportunities and invests for example in the Arctic programmes of the European Polar Board. However, currently there is not sufficient support to grant the EU such a status.
The role of NGOs
NGOs such as Greenpeace and the World Wide Fund for Nature are becoming more active in the protection of the Arctic area, occasionally leading to conflicts with both Arctic states and multinationals. The main aim of NGOs is to raise public awareness and try to affect change in policies of states and companies. Hacquebord drew attention to the fact that NGOs (together with the media) have changed our perception of the Arctic area, by portraying it as a fragile ice wilderness with special animals that belongs to all of humanity and which is being ‘invaded’ by oil companies.
 Unfortunately, none of the contacted companies was able or willing to participate in this debate.
 According to Simons, this survey has showed that there is (possibly) enough oil to meet world demand for about three years.
 ‘The Arctic Ocean is a unique ecosystem, which the five coastal states have a stewardship role in protecting. Experience has shown how shipping disasters and subsequent pollution of the marine environment may cause irreversible disturbance of the ecological balance and major harm to the livelihoods of local inhabitants and indigenous communities. We will take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection and preservation of the fragile marine environment of the Arctic Ocean.’
 Article 193 LOSC provides in general terms that: ‘Sovereign right of States to exploit their natural resources States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.’