Dr. Jessica Shadian, Associated Researcher, the Arctic Centre, University of Lapland
The consideration over whether or not to regulate and what kinds of legal and regulatory mechanisms should be used for sea ice offers a salient example of the broader shortcomings of traditional international law and within this the challenges of Arctic governance. Simply stated, the prevalence of sea ice is a vital facet of all coastal Inuit communities. Yet Inuit governments, Inuit communities and all six permanent indigenous participants on the Arctic Council do not have access to formal international law outside of the context of indigenous rights – through international human rights and the UN Declaration on Indigenous Issues. In the context of formal international (treaty-based) law, non-state entities do not have a seat at the table.
How then, do we make new legal mechanisms to deal with Arctic ice that will provide coastal indigenous communities much stronger political participation than merely being offered the ability to show up at a respective location to disclose their knowledge about traditions, histories, uses, and present conditions of ice? While it could be argued that the duty to consult, impact benefit agreements (IBA’s), and free, informed and prior consent are great advancements in aboriginal/state relations from a historical perspective, they are at the same time, only a starting point for creating a political and legal space for adequate indigenous participation and indigenous political recognition in Arctic policy and governance.
One solution could be to move away from a focus on traditional positivist international law towards legal theories which better speak to the realities of the Arctic. Yet, by doing so how do we determine when we are no longer talking about law but in fact governance? Is this distinction important? In my own research which analyses indigenous political participation of the Arctic’s indigenous peoples (particularly coastal Inuit indigenous communities – or ‘rights holders’) as well as the 6 indigenous permanent participants on the Arctic in the realm of Arctic governance, I turn to legal theories such as polycentrism, hybrid law and legal pluralism (e.g Scholte 2004, Loukacheva 2007, Ruth S. Meinzen-Dick and Rajendra Pradhan 2002). I also borrow from the work of legal scholars (e.g. Karkkainen 2004, Bulkeley 2005, and Osofsky June 2013) who write about post-sovereign resource management, transnational political spaces of environmental governance and the legal intersection between public and private authority. In line with these thinkers, there are the many IR scholars who rethink traditional notions of sovereignty and the state as the centre of analysis (Agnew 2005, Brock 2001, Biersteker and Weber 1996, Castree 2004, Lapid 2001, Newman 2001, Osiander 2001, Ruggie 1993, Shadian 2010). Others (Shadian 2014, Shaw 2002, Beier: 2009, and Castree 2004) also include literature on alternative diplomatic cultures and indigeneity theory to contribute to the big questions in IR. Along these lines geography literature further helps to reconceptualise political space (e.g. Cox 1997, Agnew 2005, Agnew and Livingstone).
When it comes to traditional meanings of territory within international law, territory is most often understood in the context of state sovereignty (territorial integrity). While international law acknowledges indigenous rights, a treaty based law for Arctic sea ice (e.g. an amendment to UNLCOS or a new law sea ice) would exclude indigenous ‘rights holders’ – and in some cases also owners of Arctic land and resources – from the direct processes of international lawmaking and monitoring (under traditional international law indigenous peoples are represented by the states of where they are citizens). Governance regimes, alternatively, such as ocean governance, marine spacial planning, maritime governance, or ecosystem based management begin with the premise that there are multiple resources, multiple uses (ice highway part of the year and shipping route another part of the year) and multiple users and that these users have a degree of power to help create and carry out the practices of the regime. If then, when it comes to finding a law for sea ice, is it more relevant to talk about creating a management regime or governance arrangement rather than creating formal international law for Arctic ice? And, if so what is at stake?