Saturday, January 17, 2009

Law, Science and International Cooperation in the U.S. Arctic Region Policy

The United States Arctic Region Policy (NSPD 66/HSPD 25), which President Bush signed last week revamping a 1994 policy, generated considerable media attention, but often for the wrong reasons. The policy’s laudable invocation of law, science and international cooperation was largely ignored (sometimes willfully, it seemed) except from expected sources such as the U.S.Arctic Research Commission. For voices toning down the rhetoric from north of the U.S. border, including an uncharacteristic reassurance from Canadian Prime Minister Stephen Harper, see Arctic Economics (please note my comment there correcting any impression I may have created that the new policy completely ignores icebreaking capability).  In Arctic Economics, Ben Muse culls a representative sampling of the U.S. and Canadian newswires and blogosphere; the reference to Russia’s anticipated arctic policy highlights the need to gather an even wider range of responses from other arctic nations.

The 2009 U.S. Arctic Region Policy (ARP) undergirds the fact that science and law – working together – are essential foundations to effective, considered, and visible U.S. participation in the arctic arena. Here it is worth recalling an obvious but occasionally overlooked fact: that the arctic arena implicates Alaskan, national, regional and international interests. The ARP grasps and conveys that fact clearly. Other arctic countries should welcome the policy’s dedication of a substantial segment to “Promoting International Scientific Cooperation” (Part III. E.) as well as the ARP’s multiple references to international and multinational cooperation, explored below.
Five of the twenty-four addressees of the ARP have key responsibilities within the U.S. government for the legal or scientific foundations of national policies generally:

The Secretary of State
The Attorney General
Counsel to the President
Director of the Office of Science and Technology Policy
Director, National Science Foundation.

The vast majority of the remaining addressees head up agencies or departments whose operations depend upon the availability of solid scientific studies to inform policies and operations, and to draft and enforce regulations, and many of whom are involved in the Interagency Arctic Research Policy Committee (IARPC): The Secretaries of Defense, Interior, Transportation, Health and Human Services, and Energy; The Administrator of the Environmental Protection Agency; and the Chairman of the Council on Environmental Quality, to name just the most obviously science-dependent candidates. All addressees rely on the constitutional and administrative legal structure that supports the functioning, however laboriously, of the U.S. government.

The very first paragraph of the ARP highlights the legal foundations of the policy and the president’s intent to follow national and international law: “This directive shall be implemented in a manner consistent with the Constitution and laws of the United States, with the obligations of the United States under the treaties and other international agreements to which the United States is a party, and with customary international law as recognized by the United States, including with respect to the law of the sea.” Because the U.S. is not yet a party, specific references to the UN Convention on the Law of the Sea and the need for U.S. accession appear later in the document.

As set out in Section II, Background, the ARP takes into account several developments, including “The effects of climate change and increasing human activity in the Arctic region” and “A growing awareness that the Arctic region is both fragile and rich in resources.” Neither development would have been apprehended without scientific and legal framing of related issues.

Section III, Policy, is the core of the ARP. Phrases implicating law (for a regulatory or cooperative framework) and science (to populate and enforce those frameworks) abound in Section III, which says it is U.S. policy to “Protect the Arctic environment and conserve its biological resources; Ensure that natural resource management and economic development in the region are environmentally sustainable” and “Enhance scientific monitoring and research into local, regional, and global environmental issues.”

The policy vows, in Part III.B. relating to National and Homeland Security, continuation of existing maritime policies and authorities “including those relating to law enforcement.” It also states, not surprisingly, that “The United States exercises authority in accordance with lawful claims of United States sovereignty, sovereign rights, and jurisdiction in the Arctic region.” By “Encourag[ing] the peaceful resolution of disputes in the Arctic region,” the policy adopts an eminently lawful position.

The policy emphasizes in Part III.C. on International Governance that U.S. participation in international and regional entities promotes U.S. interests in the arctic. The “Arctic Council, the International Maritime Organization (IMO), wildlife conservation and management agreements” are among the entities mentioned. Space allows noting only that the ARP repeats the well-known U.S. position that “the Arctic Council should remain a high-level forum,” not become a formal international organization, and possibly be updated structurally to improve operations. Also not surprising is the ARP’s confirmation of the U.S. position made known in such documents as the May 2008 Ilulissat Declaration “that an "Arctic Treaty" of broad scope -- along the lines of the Antarctic Treaty -- is not appropriate or necessary.” Importantly, the ARP ties U.S. accession to the U.N. Convention on the Law of the Sea to national interests in the Arctic, including Extended Continental Shelf and Boundary issues (to which Part III.D. is dedicated).

Research Platform USCGC Healy

 Promoting International Scientific Cooperation (Part III.E.) is worth reading in its entirety for elaboration of its basic premises, that "Scientific research is vital for the promotion of United States interests in the Arctic region. Successful conduct of U.S. research in the Arctic region requires access [read: “law”] throughout the Arctic Ocean and to terrestrial sites, as well as viable international mechanisms
 for sharing access to research platforms and timely exchange of samples, data, and analyses”. Section E is replete with terms such as “collaborative research,” i.e. with the “Nordic Council and the European Polar Consortium, as well as with individual nations.”

It is in part E that the ARP comes closest to drawing a direct line between arctic science and arctic policy (perhaps because the connection is so obvious?). Referring to the need for accurate prediction of environmental and climate change and regional observing networks [see, e.g. regarding the US and the Arctic Observing Network] especially for environmental data, the ARP says: “The United States promotes active involvement of all Arctic nations in these efforts in order to advance scientific understanding that could provide the basis for assessing future impacts and proposed response strategies.” Finally, it draws the policy-science link directly by directing the appropriate authorities to “Work with the Interagency Arctic Research Policy Committee (IARPC) to promote research that is strategically linked to U.S. policies articulated in this directive, with input from the Arctic Research Commission.”

Arguably, one of the most important sentences for the purposes of linking science and law is the ARP’s statement in Part H., on the Arctic Environment, that “Despite a growing body of research, the Arctic environment remains poorly understood.” Without increased scientific knowledge, laws, regulations and non-binding mechanisms to address environmental and related governance problems will be impossible or ineffective. Solid science is the basis of effective enforcement.

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Selected References to International Cooperation 
in Part III of the U.S. Arctic Region Policy

A.   Policy
“Strengthen institutions for cooperation among the eight Arctic nations”; “effective search and rescue in the Arctic will require local, State, Federal, tribal, commercial, volunteer, scientific, and multinational cooperation.”

B.   National Security and Homeland Security Interests in the Arctic
“The United States has broad and fundamental national security interests in the Arctic region and is prepared to operate either independently or in conjunction with other states to safeguard these interests.”

C.  International Governance
“Continue to cooperate with other countries on Arctic issues through the United Nations (U.N.) and its specialized agencies, as well as through treaties such as the U.N. Framework Convention on Climate Change, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Convention on Long Range Transboundary Air Pollution and its protocols, and the Montreal Protocol on Substances that Deplete the Ozone Layer.”  See also references to the Arctic Council, above.

E.   Promoting International Scientific Cooperation (a sampling)
“U.S. research-capable platforms … should work with those of other nations through the establishment of an Arctic circumpolar observing network. All Arctic nations are members of the Group on Earth Observations partnership, which provides a framework for organizing an international approach to environmental observations in the region.”
“Actively promote full and appropriate access by scientists to Arctic research sites through bilateral and multilateral measures and by other means.”

F.   Maritime Transportation in the Arctic Region
“Develop additional measures, in cooperation with other nations, to address issues that are likely to arise from expected increases in shipping into, out of, and through the Arctic region” and cooperative agreements for search and rescue."

G.   Economics issues, including Energy
Curiously, the section on Energy contains possibly the largest number of references to international cooperation: calling for responsible management of energy resources “by continuing to work closely with other Arctic nations”, recognizing the value of existing forums such as the “Arctic Council, the International Regulators Forum, and the International Standards Organization.”

“Work with other Arctic nations,” “Consult with other Arctic nations to discuss issues related to exploration, production, environmental and socioeconomic impacts, including drilling conduct, facility sharing, the sharing of environmental data, impact assessments, compatible monitoring programs, and reservoir management in areas with potentially shared resources; “Identify opportunities for international cooperation on methane hydrate issues, North Slope hydrology, and other matters”; “shared support activities, including infrastructure projects”; and “Continue to emphasize cooperative mechanisms with nations operating in the region to address shared concerns, recognizing that most known Arctic oil and gas resources are located outside of United States jurisdiction.”

H.   Environment
Supports principles of international fisheries management; calls for the U.S. to “In cooperation with other nations, respond effectively to increased pollutants and other environmental challenges”; and “Seek to develop ways to address changing and expanding commercial fisheries in the Arctic, including through consideration of international agreements or organizations to govern future Arctic fisheries.”

Icebreaking into the Arctic

The USCGC HEALY embarked Barrow, Alaska, in August 2008 to map the US extended continental shelf, or ECS, in the Arctic Ocean (HLY 0805). Healy sailed again from 7 August to 16 September, 2009 (HLY 0905) to continue ECS mapping, joining with the Canadian icebreaker, the Louis S. St.-Laurent. The two vessels mapped together again in 2010 (see HLY1002) and 2011 (HLY1102).

As the only law professor on the science crew, I was along on HLY 0805 and 0905 to better understand
the science behind the legal process that the UN Convention on the Law of the Sea establishes for states making ECS submissions. As to why the US is mapping now, even though it has not yet acceded to the Convention, read on both here, and in the Law of the Sea notes below.

Thanks to
Vermont Law School and especially to Larry Mayer, Director of the University of New Hampshire's Center for Coastal and Ocean Mapping, for making my part in the trip possible.
Thanks, as well, to Adriane Colburn, for opening new windows on and for the deep.