Draft Arctic Treaty: An Arctic Region Council*

 by Donat Pharand, Professor Emeritus of International Law, University of Ottawa

 

* Excerpted from the Canadian Institute of International Affairs, National Capital Branch, The Arctic Environment and Canada's International Relations (Ottawa: Canadian Arctic Resources Committee, 1991),pp.AI-A10.

Copyright, Canadian Arctic Resources Committee, 1991

 

Introductory Remarks

 

This Draft is still preliminary in nature, but could perhaps constitute a discussion paper.

I am pleased to acknowledge the benefit I have derived from discussions of the Arctic Council Panel, chaired by Franklin Griffith and Rosemary Kuptana, and the Interim Statement of the Panel dated January 1991.

 The present Proposal is drafted in Treaty form for two reasons: first, it makes for more concise drafting, and, second, a Treaty is preferable to a Declaration or a Memorandum of Understanding because of their questionable legally binding nature in international law.

 Each draft provision is followed by a brief commentary or explanation.

 PREAMBLE

 

The Governments of Canada, Denmark, Finland, Iceland, Norway, Sweden, the Union of Soviet Socialist Republics, and the United States of America,

 Recognizing the increasing concern of the indigenous peoples and other inhabitants of the Arctic Region for the deterioration of their environment;

 Realizing the urgent need of comprehensive measures for the protection of the environment of the Arctic Region and its inhabitants;

 Noting that, pursuant to the United Convention on the Law of the Sea, states bordering an enclosed or semi-enclosed sea should co-operate through an appropriate regional organization in the co-ordination of scientific research, the protection of the marine environment, and the conservation of the living resources of the sea;

 Believing that regional cooperation should lead to the use of the Arctic Region for peaceful purposes;

 Affirming that such peaceful uses are in the interest of all mankind and in furtherance of the first purpose of the United Nations to maintain international peace and security;

 HAVE AGREED to establish an international organization to be known as the ARCTIC REGION COUNCIL

 Commentary

The purpose of the Preamble is only to indicate, in general terms, the desirability of having a Council. It contains no legal obligation.

 1—AREA OF APPLICATION

 For the purposes of the present Treaty, the "Arctic Region" means the area north of 60 North Latitude, including Labrador and the region in northern Quebec known as "Nunavik".

 Commentary

The expression "Arctic Region" was chosen instead of "Arctic Basin" because the latter would normally exclude Iceland, Finland and Sweden, which should be included. Of the numerous ways to define the "Arctic Region", the 60th parallel of latitude appears to be the most appropriate. It includes all the areas covered by the tundra or continuous permafrost, except for parts of northern Quebec and of Labrador; hence, the qualified definition. More specifically, the area north of 60 includes virtually all of the relevant regions of the eight Arctic States:

 Canada: Yukon, N.W.T., most of northern Quebec and the tip of Labrador

Denmark: all of Greenland

Finland: all

Iceland: all

Norway: all of Svalbard and most of mainland Norway (north of Oslo)

Sweden: most of the territory (north of Stockholm)

U.S.SR.: roughly the northern half (counting the archipelagos) of the territory, including the numerous rivers emptying in the Arctic Ocean

U.S.A.: virtually all of Alaska

The area includes, of course, all of the Arctic Ocean and surrounding seas, as well as the southern limit of sea ice. By contrast, the Arctic Circle would have left out significant bodies of water, large areas of the tundra and of sea ice.

  —PURPOSES

 The main purposes of the Arctic Region Council (hereinafter referred to as "Council)" are:

 

(1) to facilitate regional cooperation generally among its Members;

  (2) to insure the protection of the environment;

  (3) to promote the co-ordination of scientific research;

  (4) to encourage the conservation and appropriate management of living resources;

  (5) to foster economic and sustainable development;

  (6) to further the health and social well-being of the indigenous and other inhabitants of the Arctic Region;

  (7) to promote the use of the Arctic Region for peaceful purposes.

Commentary:

  The above purposes put the emphasis on civil matters (e.g., environment, scientific research, economic development, and human welfare) but includes the military indirectly through the promotion of "peaceful purposes" . Although this is a loaded expression which has caused considerable difficulty of interpretation, it does appear in certain key treaties (Antarctic and Non-Proliferation), and States have learned to live with it. The expression, with its ambiguity, does have considerable virtue and cannot be objected to without reason.  

3—MEMBERSHIP

 

The founding Members of the Council shall be the eight States whose territory projects north of the Arctic Circle: Canada, Denmark, Finland, Iceland, Norway, Sweden, the Union of Soviet Republics, and the United States of America.

 Commentary

Because of the geographic location of their territories (bordering the Arctic Ocean or the adjacent seas) and the fact that all indigenous peoples are located on most of those territories, the eight Arctic States or founding Members have special interests and responsibilities.

The admitted Members may be States, Governmental and Non-Governmental Organizations, territorial and regional governments. Such States, organizations, and governments are eligible for membership if they have demonstrated a substantial interest in the work of the Council and a capacity to further its purposes. Admission shall be decided by the Assembly upon the recommendation of the Commission.

 Commentary

To permit participation of all those with sufficient interest, the Council is open to membership of other States (such as France, Germany, Japan, United Kingdom), organizations of States (such as the European Community), NGOs (such as the ICC) and territorial governments (such as Alaska, Yukon, N.W.T., Greenland) and regional governments (such as Chakotskiy, Nunavik and the Nordic Sami Council). To ensure adequate qualifications, the admission of new Members depends on a favourable recommendation of the Commission where the founding Members form a majority of two-thirds.

 

4—ORGANS OF THE COUNCIL

 

The Council shall be composed of an Assembly and a Commission, as the two main organs, and a Secretariat as a subsidiary organ.

(1) The Assembly

 The Assembly shall consist of all Members of the Council.

The Assembly may discuss all questions relating to the purposes of the Council and shall establish general policies for the co-ordination of the activities of the Council and its Members. It may make recommendations to the Members or to the Commission on measures to be taken for the fulfillment of the purposes of the Council.

 The Assembly shall elect the four non-permanent Members of the Commission and appoint the Secretary of the Council. It may establish such subsidiary organs as are required to exercise its functions.

 A majority of Members of the Assembly shall constitute a quorum and its resolutions shall be adopted by consensus. It shall adopt its own rules of procedure and elect its President.

 Commentary

The Assembly, as for all similar plenary bodies, has nearly unlimited powers of discussion and rather limited powers of decision. It should be the forum where the basic purposes and general orientation and policies are discussed and agreed upon, but it is too large a body to see to the implementation of specific measures. The Assembly may exercise some indirect control over such implementation, however, through the election of the four non-permanent Members of the Commission.

 There could well be a "call back" clause according to which each recommendation made by the Assembly is accounted for (i.e., reported back to the Assembly) until such time as 1) the recommendation is considered implemented or 2) reasons why it has not been implemented are provided. This will ensure accountability for recommendations and continuity in the furthering of the Council's aims.

 Procedure by consensus having now gained a large degree of acceptance (particularly at the United Nations and the Third Law of the Sea Conference), it is suggested as an appropriate procedure here. It might be wise, however, to provide for actual voting if a consensus fails to materialize.

 

(2) The Commission

The Commission shall consist of twelve Members, of which the founding Members shall be permanent. The four non-permanent Members shall be elected by the Assembly, on the basis of an equitable representation of the admitted Members and their contribution to the purposes of the Council. The non-permanent Members shall be elected for four years, except for the first election when two shall be elected for two years only.

 The Commission shall decide on measures to fulfil the purposes of the Council and on the implementation of such measures. It may establish subsidiary organs required to exercise its functions.

 The Commission shall adopt its resolutions by consensus and it shall establish its own rules of procedure and elect its President.

 Commentary

 The Commission is intended to be the governing body on which the founding Member States will have a controlling voice by their number (8 out of 12) and permanency. They will not have any right of veto, however, and the other four Members (on a four year rotating basis) will enjoy equality of status during their term on the Commission.

The Commission will see to the actual taking and implementation of measures, since the Member States on the Commission are the ones with the principal means of enforcement and will bear the brunt of any consequent responsibility.

 The consensus mode is provided for, but it might be wise to foresee the possibility of voting on the more important substantive questions.

 

(3) The Secretariat

  The Secretariat shall be located on the territory of one of the founding Members. It shall comprise a Secretary and such staff as may be required. The Secretary shall be the administrative office of the Council and shall be appointed by the Assembly on the recommendation of the Commission. He shall act in his capacity as Secretary at all meetings of the Assembly and of the Commission. The Secretary shall make reports to the Assembly on the work of the Council at its regular meetings.

 

Commentary

 

The Secretariat is intended to be, certainly at the beginning, a very small organ consisting only of a Secretary and a very small staff (a couple of people). Of course, it might develop into an important office, depending on the activities of the Council.

 

5—MEETINGS

 

Regular meetings of the Assembly and of the Commission shall be held every other year.

 Special meetings may be held at such other time and place as each organ may decide.

Regular meetings shall be held in the Arctic Region and under the auspices of one of the founding Members in rotation.

 

 Commentary

A meeting every two years should be enough in the early period of operation, with the possibility of special meetings for both the Assembly and the Commission.

 The special interests of the founding Members are recognized in that they will host the meetings. Canada might host the founding meeting.

 

6—EXPENSES  Each Member shall bear its own expenses, unless otherwise agreed.

 The expenses of the Secretariat shall be borne by the Member on whose territory it is located.

 

Commentary

 The expenses of the Council should be kept at a minimum and each Member should defray its own expenses for attending meetings. The expense of the Secretariat might pose a problem, particularly if it has to produce documents in more than one language. If so, some kind of sharing formula will have to be devised. As for the location of the Secretariat, Canada might wish to volunteer such services to begin the work of the Council, particularly if it hosts the founding meeting.

 

 

7—SETTLEMENT OF DISPUTES  Any dispute between Members shall be resolved by peaceful means of their own choice, in particular those provided for in the Charter of the United Nations.

  Commentary

This being a very delicate subject, it is preferable to provide for a general obligation only and which is already present in the United Nations Charter.

 

8—ENTRY INTO FORCE, AMENDMENTS, AND REVIEW

 

(1) Entry into force

 

The present Treaty shall enter into force upon signature [or after ratification] by all of the eight founding Arctic States. It shall come into force for each of the other Members at the time of their signature [or after their ratification/accession].

 

Commentary

 

Depending on their constitutional requirements, ratification might be necessary for some of the States (it is not so for Canada). If so the Treaty would have to be subject to ratification by States. If not, consent to be bound could be expressed by signature which would apply to both States and Organizations.

 

(2) Amendments

 Amendments to the Treaty shall be adopted by the Assembly on the recommendation of the Commission. Such adoption shall be made by consensus or, failing that, by a vote of two-thirds.

Amendments shall enter into force upon adoption [or, after ratification by two-thirds of the Members].

 

 Commentary

Although amendments should not be frequent, they should be possible and should not be blocked by the lack of consensus in the Assembly. Hence, their adoption and ratification by a vote of two-thirds.

 

(3) Review Conference

 After the Treaty has been in force for twenty-five years, any member may request a Conference to review the operation of the Treaty.

 

Such Conference shall be held on the recommendation of the Commission and approved by the Assembly either by consensus or a vote of two-thirds. Any amendment adopted by the Conference shall enter into force after signature [or ratification] of all members.

 Commentary

Although the whole treaty system should be made to endure, a review might become desirable after a while. Twenty-five years would appear to be a reasonable trial period (it is 30 years for the Antarctic Treaty). Amendments adopted at a Review Conference would come into force in the same way as the Treaty itself originally came into force, by all Members expressing their consent to be bound (either by signature or ratification, depending on the requirements agreed upon for the entry into force of the Treaty).

 


"And why not a council of Arctic Countries eventually coming into existence to co-ordinate and promote co-operation among them?"

 Brian Marlene, Prime Minister of Canada, Leningrad, November 1989

"The Government believes that now is the time to move forward to establish that Arctic Council Canada intends to propose an Arctic Council to the seven other Arctic countries—Finland, Sweden, Norway, Iceland, Greenland, the United States and the Soviet Union. We will raise the proposal at a ministerial meeting in Finland next spring on environmental co-operation. Canada is willing to host a small secretariat for this Council and contribute to sustaining it from the outset."

 Joe Clark, Secretary of State for External Affairs, Ottawa, November 1990

"Achieving a permanent arctic council among a group of nations with widely differing geographic, economic, cultural, and strategic interests will not be a simple task. But we believe it is a goal worth pursuing.

 "To move the process along, Prime Minister Marlene will be writing to the heads of government of the seven other nations inviting them to send representatives to Canada later this year. Together, they can begin exploring how such a permanent council might be constructed and what its mandate and responsibilities might be."

 Tom Sodden, Minister of Indian Affairs and Northern Development, Copenhagen, June 1991

 


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