Tuesday, January 20, 2009

WWF January 2009 Report on Gaps in International Governance of the Marine Arctic

The WWF International Arctic Programme has released its January 2009 report on International Governance and Regulation of the Marine Arctic: Overview and Gap Analysis by Timo Koivurova, University of Lapland, and Erik Molenaar, Universities of Utrecht and Tromsø.  The report was highlighted at the Age of the Arctic conference now in progress in Tromsø as part of Norway's contribution to the the International Polar Year.  A press release regarding the report emphasizes that the UN Convention on the Law of the Sea cannot close all of the governance gaps in the arctic.  The World Wildlife Fund plans to issue a follow-up report later this year suggesting ways to address the governance gaps identified in its overview and gap analysis.

A separate article on "Building the Science behind Arctic Conservation," released last year as part of WWF's 2008 Annual Report, highlights WWF's climate-related science in the Arctic.

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.

- - - - - - - - - -

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.”

Tuesday, January 13, 2009

U.S. Coast Guard Statement on new Arctic Region Policy: Icebreakers, anyone?

Adm. Thad Allen, Commandant of the U.S. Coast Guard, issued a brief statement today on the "Arctic Region Policy" signed by President Bush on January 9, 2009, and released to the media by the White House on January 12, 2009, as a dual Presidential Directive  (on National Security - NSPD-66, and on Homeland Security, HSPD - 25).  Curiously, neither the statement nor the directive(s) specifically mention icebreakers beyond the latter's  general reference to "icebreaking capabilities" in emergency response scenarios.  The Arctic Region Policy does refer to projecting "sea power throughout the region" and indicates that the appropriate Secretaries, agencies and departments shall  "Develop greater capabilities and capacity, as necessary, to protect United States air, land, and sea borders in the Arctic region."

Given the environmental, research and security priorities in the Arctic Region Policy, it bears remembering that the U.S. Coast Guard currently has only three icebreakers, one of which - the Polar Star - is out of  service.  One need not adopt entirely Scott Borgerson's colorful characterization of the three as "a geriatric bunch desperately in need of revitalization and/or replacement" in his analysis today of the new policy, to see that the U.S. needs more and improved icebreaker capacity.

According to the Coast Guard, The Polar Sea and Polar Star, both 399-foot polar class icebreakers, were "built in the 1970s and the newest and most technologically advanced icebreaker, the Cutter HEALY was added to the fleet in November 1999."  The Healy, a 420-foot icebreaker, supports scientific research as one of its primary missions, including the mapping of the U.S. extended continental shelf discussed in much more detail elsewhere in this blog.  This summer the National Academy of Sciences and the Pentagon's Pacific, Northern and Transportation commands were among those supporting  calls to increase United States icebreaker capacity

Monday, January 12, 2009

U.S. Presidential Directive on Arctic Region Policy released January 12, 2009

 Thanks to Caitlyn Antrim, of LOS News/Ocean Law Daily, and others for providing a copy of the Presidential Directive regarding "Arctic Region Policy" signed by President Bush on Friday, January 9, and released to the media today.

The document bears the additional headings


 Today, once again, I simply post the document, available here, this time with one comment to draw your attention to Part D. Extended Continental Shelf and Boundary Issues, which highlights the United States' reliance on the ECS processes set out in the Law of the Sea Convention.

Saturday, January 10, 2009

President Bush signs United States Arctic Policy

For now, I simply post a press release from the US Arctic Research Commission to put the word out that President Bush signed the long-anticipated United States Arctic Policy on January 9, with only days remaining in his administration. Because the policy itself has not yet been released to the media, the signing was picked up primarily by Alaskan regional news providers and, anticipating the move, the Wall Street Journal.  Senator Lisa Murkowski's office expects the policy itself to be released on Monday.

"President Bush signs Arctic policy [USARC press release]

President Bush signs Arctic policy that emphasizes scientific research and international cooperation

ANCHORAGE, AK, January 9, 2009 - The new Arctic Policy signed by the President today "reminds the world that the Arctic matters to the United States," said Mead Treadwell, Chair of the U.S Arctic Research Commission (USARC). "Our opportunities and responsibilities in the Arctic are increasing with climate change. The Arctic Ocean is becoming more accessible to the world, and this policy responds to these new realities."

The U.S. Arctic Research Commission proposed a review of U.S. Arctic Policy in a goals and objectives report sent to the President two years ago. The last time Arctic Policy of the United States was reviewed and revised by the National Security Council was 1994, and much change in the Arctic has occurred since, both in the environment and in international relations.

"The Commission commends the National Security Council and the Department of State for their leadership of this policy review, and looks forward to working with the next Administration, the Congress, the State of Alaska, and the international research community to see the research goals in the policy realized," Treadwell said.

"The policy should give a boost to Arctic research on climate, environment, economic opportunities, and the requirements of Arctic peoples. The policy reflects the need for increased international collaboration on scientific research and monitoring, and for ensuring better access for scientists in the Arctic Ocean."

On the Law of the Sea Convention, the policy promotes Arctic exploration and research as a means to expand our nation's offshore Arctic territory consistent with the United Nations process. The policy also gives strength to efforts now pending in Congress to provide the U.S. with icebreaker capacity to operate year-round in Arctic waters. Icebreakers will serve many missions in the Arctic, including their current role as a primary platform for U.S. Arctic Ocean research.

To follow up, the Commission continues to support the eight-nation Arctic Marine Shipping Assessment, associated with the Arctic Council, to be published this spring. "That document will give nations the background to ensure that Arctic shipping will be safe, secure, and reliable," Treadwell said.

Because the U.S. has many important and strategic interests in the Arctic, the USARC has called for research efforts in five broad categories: (1) environmental change of the Arctic Ocean and Bering Sea; (2) Arctic human health; (3) civil infrastructure; (4) natural resource assessment and earth science; and (5) indigenous languages, identities, and cultures.

Details on these research goals will be released shortly in the Commission's report to the incoming administration and to Congress, "Summary Report on Goals and Objectives for Arctic Research 2009 for the U.S. Arctic Research Program." The report also calls for greater interagency efforts to coordinate and collaborate on Arctic research programs, greater federal financial support of scientific research conducted by academia and non-profits, and means to capitalize and support the ongoing costs of infrastructure (e.g., icebreakers, laboratories, satellites, observatories, networks, sensors, and autonomous vehicles), necessary to conduct Arctic research.

The Arctic Research and Policy Act of 1984 established USARC. This federal agency's principal duties are to develop and recommend an integrated national Arctic research policy and to assist in establishing a national Arctic research program plan to implement the policy. Commissioners also facilitate cooperation between the federal government, state and local governments, and other nations with respect to Arctic research, both basic and applied. The U.S. conducts approximately $400 million in Arctic research annually."

Mead Treadwell, US Arctic Research Commission
907-223-8128 (cell)

Monday, January 5, 2009

2009 Anniversaries: Alaska, and Samuel Johnson

If you heard only a fraction of the New Year's programming over the last week, you know that 2009 marks both the 50th anniversary of Alaska joining the United States and the 300th anniversary of Samuel Johnson’s birth. Are there any plausible connections between the two, or any connections to arctic law, science, and policy?

Johnson is believed to have had at hand the missionary Hans Egede’s Description of Greenland (1745) as he wrote his two fictive Rambler essays "Anningait and Ajutt; a Greenland tale" (Rambler Nr. 186, and its conclusion in Nr. 187) in the early 1750s.* Verlyn Klinkenborg’s apt
comparison of Johnson’s dictionary research to arctic exploration notwithstanding, the Rambler essays predated and were not directly connected with Johnson’s 1755 Dictionary of the English Language. William C. Horne, in his 2001 essay "Samuel Johnson Discovers the Arctic,"* presents Johnson as “one major Enlightenment figure who possessed a deep interest in the natural environment and human inhabitants of the Arctic” and who offered “implicit criticisms of materialism and imperialism;” or so, at least, argue Horne’s editors in their introduction to his essay (Armbruster & Wallace, 11).

One prosaic lesson from Johnson’s arctic connection is that science, whether social or natural, depends on access to research and reporting that has gone before in order to have some basis, and baseline, for future work. Without Egede’s book, Johnson would likely not have written his Greenland tale. As tenuous as the suggested link might be, policy makers need to query: what research will not be available in the future because they have decided not to fund it? Is the work they are funding worthy and capable of supporting future scientific inquiry?

It also bears noting that, without access to Egede’s work, Johnson would not have been able to reject one of Egede’s basic conclusions. Horne argues that Johnson rejected Egede’s romantic assertion of Inuit contentment in face of want in order to imply that Inuit and European alike suffered under “the vanity of human wishes” – a favorite theme of Johnson’s (Horne, 82-83). On the other hand, Johnson hewed closely to Egede’s observations of the natural world; evidence he appears to have considered more reliable than Egede’s romantic conclusions as to the nature of the Greenlandic soul (Horne, id.).
The accuracy, and biases – known or unconscious – of those whose work we build on must also be tested and challenged, a habit in which natural scientists may be more practiced than social scientists, lawyers, or policy makers. How others use that work must also be tested and challenged in turn for its faithfulness to the original sources, its own historical biases and blind spots.

Sheer chronology makes it difficult to claim any connection between Johnson and Alaska. I will, however, in future entries, highlight notable Alaskan efforts to promote solid links between science, law and policy making.

*See, e.g., Horne, William C. “Samuel Johnson Discovers the Arctic: A Reading of a "Greenland Tale" as Arctic Literature,” in: Beyond Nature Writing: Expanding the Boundaries of Ecocriticism. Ed. Karla Armbuster and Kathleen R Wallace. Charlottesville and London: UP of Virginia (2001), and Sarah Moss, Romanticism on Ice: Coleridge, Hogg and the Eighteenth-Century Missions to Greenland, in: Romanticism on the Net : Numéro 45, February 2007.

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.