February 10, 2014 | by KATHRIN KEIL
"The more the merrier" or "as big as necessary"? Arctic governance shows how a small-size policy-making approach can complement more inclusive agreements in order to ensure the right level of participation for "right-sized" policy-making.
In times of pressing global problems, when countries and people geographically far apart depend heavily upon each other’s commitment to a common cause, international institutions are usually faced with the challenge of achieving as many signatories as possible on the final pages of their declaration documents in order to guarantee institutional effectiveness. Many such declarations and agreements, in fact, only enter into force once a specific threshold of signatories and national ratifications has been achieved. For many challenges, first and foremost global climate change, we indeed need as many on board as possible to avoid free-riding.
However, this should not lead us to believe that “the more the merrier” is the rule for every problem in need of international cooperation, especially at the regional level. As students of international relations learn early on, situations of conflict can become harder to solve as the cast of characters involved in the issue grows. Thus it can often be that successful institutional cooperation depends on keeping this cast of characters only “as-big-as-necessary”, rather than “as-big-as-possible”.
Only as Big (and Diverse) as Necessary: The Arctic Council
Arctic governance offers a number of good examples of the “as-big-as-necessary” approach. The prime political body of the Arctic region, the Arctic Council, is a high level forum with a fixed membership. That membership is comprised of the eight states possessing territory above the Arctic Circle: Canada, Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russia, Sweden and the United States.
While it appears natural in the first place that only the eight Arctic countries have a seat at the Council, the increasing attention the Arctic is gaining all over the world reminds us of the close ties between the Arctic region and the rest of the world in economic, legal, environmental and climatic processes. This link and relevance of the Arctic to the rest of the world has been acknowledged from the very beginnings of the Arctic Council through the provision of observer status for non-Arctic states, inter-governmental and inter-parliamentary organizations, and global and regional non-governmental organizations. Indeed, increasing international attention to the Arctic in the last few years has led to the extension of the existing observer group (initially, the United Kingdom, Germany, Poland and the Netherlands joined by France in 2000 and Spain in 2006) with the acceptance of China, Italy, Japan, the Republic of Korea, Singapore and India as observers during the 2013 Ministerial Meeting in Kiruna, Sweden.
As well as this flexible approach to state inclusion, the Arctic Council has a uniquely diverse participant structure. Next to the eight state members, the Council has six so-called “Permanent Participants”, which are six indigenous peoples’ organizations with full consultation (but no voting) rights in connection with the Council’s negotiations and decisions. The Council thus departs from the commonplace state-centric, intergovernmental institution model in favor of a diverse structure, which is focused on fulfilling the aims for which the institution was created, namely “to provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of the Arctic Indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic” (Declaration on the Establishment of the Arctic Council, Art. 1(a)).
With its cast of states, indigenous groups, and a variety of observer states and organizations, the Arctic Council is a good example of a flexible and “right-sized” institutional structure, providing for the presence and limited participation of non-Arctic actors while ensuring that Arctic states as sole members and indigenous peoples organizations as Permanent Participants remain in the driver’s seat.
The “exclusive club” of the Arctic Council is logical
Another example of “as-big-as-necessary” institutional arrangements are two agreements negotiated under the auspices of the Arctic Council, which are the 2011 “Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic” and the 2013 “Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic”. While it appears a bit cumbersome to exert oneself for the “under the auspices of…” formulation, this phrase is legally – and, ultimately, politically – significantly different from the simpler expression of “Arctic Council agreements”. Crucially, the Arctic Council is not the legal entity adopting these agreements. Rather, the eight Arctic states – who happen to be the exact membership lot of the Arctic Council – have used the Arctic Council as a forum to negotiate these arrangements between themselves. They negotiate as sovereign states, and the agreements are intergovernmental state agreements. By this, they essentially make use of the Council in its originally intended function as a “high level forum” (Declaration on the Establishment of the Arctic Council, Art. 1).
With these agreements, the Arctic states aim to strengthen cooperation among them for aeronautical and maritime search-and-rescue and for oil pollution preparedness and response for their Arctic waters and coasts. Among other coordination measures between national authorities, the eight countries have clearly delineated the areas of responsibility within their own waters and territories as well as beyond in international Arctic waters. The majority of expected increasing activities in the Arctic – transit and destinational shipping, cruise-ship tourism, oil and gas development, fishing – will take place within the territorial waters and exclusive economic zones of the eight Arctic states. They are also much closer to any increasing activity in international Arctic waters, relative to non-Arctic actors. With both of these facts in mind, the “exclusive club” of the Arctic Council is logical. Put differently, the eight Arctic states will be the ones most active in their Arctic areas, and it will be they who are most directly affected by any activities, possible accidents and environmental threats occurring in the Arctic. Thus stronger coordination and cooperation among them in the realm of search-and-rescue and oil pollution preparedness and response makes sense.
There are ongoing efforts to use this institutional format also for other areas, such as for oil pollution prevention, for improved scientific cooperation among the eight Arctic states, and for achieving black carbon and methane emission reductions in the Arctic.
National jurisdiction and policy priorities remain key
While this “right-sized” and flexible approach works well on many relevant Arctic policy issues, this model also has significant limitations. First and foremost, we have to recall that the Arctic Council is not a full-fledged international organization with legal personality adopting legally-binding decisions, but rather a “high level forum” for the Arctic states and the Permanent Participants. Its foremost activities are in the realm of gathering and processing research for policy recommendations, which have to be adopted by consensus by the eight Arctic states. While this can also result in concrete policy-making, this is only indirectly through the single Arctic states and based purely on national jurisdiction.
For this reason, a harmonization of Arctic Council states’ policies is not a necessary result of Arctic Council cooperation, not even in its foremost policy area of environmental protection. This is reflected in the different rankings of Arctic countries when it comes to dedicating policy resources to environmental issues, as revealed by the Bertelsmann Stiftung’s Sustainable Governance Indicators project. While Sweden, Norway, Denmark and Finland perform pretty well, Iceland, Canada and the US show rather low dedication to environmental policy in comparison to other OECD countries. This reflects the supremacy of national policy priorities over environmental standards, such as Iceland’s focus on attracting energy-intensive industries and generally on using the countries’ natural resources rather than preserving them. Similarly, the Canadian policy to utilize the country’s extensive natural resources, first and foremost Alberta’s oil sand resources, have prevented the development of stronger greenhouse gas emission targets and hampered the adoption of strict environmental protection laws.
Finally, we must be aware of concrete policy issue limitations. The Arctic Council format and the two agreements described above might work well in the realms of search and rescue and oil pollution preparedness and response. They might well also serve in the area of oil pollution prevention. In other areas, however – fisheries, for example, or shipping in international waters – other countries also have extensive rights and freedoms granted under international law, first and foremost the United Nations Convention on the Law of the Sea (UNCLOS). These rights include (among others) the freedom of navigation and fishing on the high seas. Regulation of these activities and safety and environmental protection measures thus must include potential ‘users’ of the Arctic high seas. Further, the Council’s ongoing attempts to reduce black carbon and methane emissions in the Arctic must include non-Arctic actors, since the majority of black carbon deposition in the Arctic is emitted in Asia and Europe
Agreements among the Arctic states can be forerunners in such areas, such as a recently revived attempt to negotiate an agreement for regulating commercial fishing activities in the high Arctic Ocean among the eight Arctic countries. But since non-Arctic actors will also, in the end, have to commit to regulations such as fishing quotas and black carbon reductions, they will have to be included beyond an observer role as parties to eventual agreements. In sum, depending on the issue at hand, the Council’s exclusive, small-size policy-making approach must be complemented by more inclusive agreements in order to ensure the right level of participation for “right-sized” policy-making.