The Ice Law Project and the House of Lords (P. Steinberg)

Phil-SteinbergThe Ice Law Project and the House of Lords

Professor Philip Steinberg, Professor of Political Geography and Director of IBRU, Durham University

As the organiser of the Ice Law Project, I’ve been avoiding writing my own Ice Law reflection. My ideas about the relationship between geophysics and geopolitics in the world’s icy regions already appear throughout the project’s website, so it seemed appropriate to reserve the ‘Reflections’ section for others’ thoughts.

However this past Tuesday (22 July) I testified at a hearing in Westminster in which I ended up confronting some of the same questions that had been addressed a month earlier in Durham at the Ice Law Project’s Workshop on the Ice-Land-Water Interface, but from a very different angle. The Westminster hearing was one of several being sponsored this summer and autumn by the House of Lords’ Arctic Committee as it seeks ‘to consider recent and unexpected changes in the Arctic and their implications for the UK and its international relations.’ I was one of three participants on a panel that was brought specifically to address whether the Arctic is posing new challenges to the United Nations Convention of the Law of the Sea (of which Britain is a state party) and whether UNCLOS is up to addressing these challenges. The video of the day’s proceedings is available here (the first hour, from 10:40 to 11:40, covered security issues while the Law of the Sea was the topic from 11:40 to 12:40).

This was a very different context than the Ice Law Project. It appeared to me that a number of the committee members – perhaps expressing the isolationist Europscepticism that is so prevalent in British politics – were beginning to wonder whether adherence to UNCLOS required an unacceptable surrender of British sovereignty, and whether perhaps this was particularly the case in the Arctic. This critique is of particular interest to me, because the Ice Law Project similarly, if for quite different reasons, questions whether UNCLOS provides the ideal foundation for Arctic governance. As became apparent in some of the preliminary deliberations of the Ice Law Project (see for instance James Baker’s reflection), UNCLOS reifies a distinction between land and water, it ascribes a specific materiality to the ocean (liquid), and it elevates state actors to the point where ‘collective management’ effectively means management by the ‘collectivity of states’. For all those reasons, UNCLOS may not be the best framework for a regulatory system that would be attuned to the lifeways of people who engage with the ocean in non-commercial ways and it may be particularly poorly suited for the Arctic, a region whose geophysical properties directly challenge an assumed land-water binary. That’s why the Ice Law Project seeks to understand the difference that ice makes: so that we can envision regulatory institutions more suited to the livelihoods and investments that occur in northern communities and also so that we can use this instance of a particularly poor fit between geophysics and geopolitics to interrogate more clearly how the two intersect.

By contrast, when addressing the House of Lords committee, I (and my co-panelists) emphasised that the Arctic was in fact a fairly ‘normal’ maritime region. Throughout the testimony, we each found ourselves explaining that UNCLOS functions fairly well as a means for accommodating a variety of state and corporate interests and that therefore there are no fundamental problems inherent in applying UNCLOS to the Arctic. Indeed, the general message of my testimony was that Arctic land is securely under the control of the coastal states, the Arctic Ocean is being rationally managed for the benefit of the community of states under the provisions of UNCLOS, and this combination of sovereign land and UNCLOS-defined ocean establishes a sound basis for working through any disputes that are likely to arise.

Veteran Arctic watchers will perceive that these sentences echo the tenor of the Ilulissat Declaration, which arguably has been the most conservative and statist intervention in Arctic governance to emerge in the past decade. In giving this neo-Ilulissat message that the Arctic is a fundamentally ‘normal’ place was I betraying the principles of the Ice Law Project? I don’t think so. As I noted in my statements before the committee (see in particular my testimony, at 11:59, 12:15, and 12:33), the Arctic’s climate matters. The region’s frigid environment provides space for creative application of existing legal frameworks; indeed it necessitates this creativity. Innovations along these lines range from UNCLOS’ Article 234, to the International Maritime Organization’s Polar Code, to the Arctic Council’s negotiation of a regional search-and-rescue agreement that, unlike those in other regions, covers both sea and land, to the Arctic Council’s inclusion of indigenous Permanent Participants whose right to participate alongside states arises specifically from the ways in which indigenous peoples’ livelihoods cross boundaries between land and water as well as between states. Each of these innovations, in their very different ways, derives from recognition of the Arctic’s difference.

If the committee members throw their weight behind British involvement in the Arctic, I have no doubt that they too will end up confronting these differences. However, I don’t see the driving force for the recognition of Arctic difference coming from non-Arctic states. Indeed, I would not be surprised if non-Arctic states end up being the last to acknowledge how the Arctic is different, because they arguably are the biggest winners from a blanket application of UNCLOS to the region. After all, UNCLOS ensures that the maritime part of the Arctic will be managed in such a way as to preserve access by extra-local states (as they seek out the region as a venue for investments and also as they seek to use it as a surface for transport) while also reaffirming the general sanctity of the state system.

Thus it seems completely reasonable to adopt a two-pronged strategy. On the one hand, in line with my testimony (and those of my colleagues) at the House of Lords, non-Arctic states should be urged to respect UNCLOS as a framework that establishes a predictable and generally favourable climate for stable governance. On the other hand, it makes sense to encourage others who actually encounter that environment – residents, Arctic states, investors, etc. – to consider how the UNCLOS framework can be adapted to meet the particular challenges of a frigid environment and to maintain a creative and proactive stance toward Arctic governance.

At some point of course, the application of UNCLOS to the Arctic and its adaptation to the specific nature of the Arctic environment may reveal competing imperatives. That’s precisely why – along with exploring regulatory innovations – the Ice Law Project seeks to interrogate just how flexible the modern state can be (and cannot be) in accommodating a world that is recognised as consisting of something more complex than a (solid) land – (liquid) water binary.

I don’t have an answer to this question, but I’m hoping that, together with my colleagues in the Ice Law Project, we can figure this out. In the meantime the House of Lords committee seeks further input and is inviting written submissions.

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