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Title: Polycentric Governance and Soft law in Arctic Environmental
Governance
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Table of Contents
CHAPTER 1: INTRODUCTION ..................................................................................................................................3
1.1. RESEARCH BACKGROUND..........................................................................................................................................3
1.2. RESEARCH QUESTION...............................................................................................................................................3
1.4. METHOD AND STRUCTURE ........................................................................................................................................4
CHAPTER 2: ACADEMIC LITERATURE REVIEW.........................................................................................................4
2.1. NEED FOR ENVIRONMENTAL GOVERNANCE IN THE ARCTIC ENVIRONMENT AND EXAMPLES OF GOVERNANCE.............................4
2.2. DISCUSSION OF EXISTING POLYCENTRIC SOFT LAWS.........................................................................................................5
2.3. SUSTAINABLE MANAGEMENT OF THE ARCTIC ENVIRONMENT WOULD BE POSSIBLE ONLY WITH COMPLETE STAKEHOLDER SUPPORT.6
2.4. REPRESENTATION IN ARCTIC GOVERNANCE...................................................................................................................6
CHAPTER 3: ARGUING FOR BETTER REPRESENTATION...........................................................................................6
3.1 ARCTIC STAKEHOLDERS..............................................................................................................................................6
3.2. THE CASE FOR MARGINALIZED REPRESENTATION ...........................................................................................................7
3.3. WHY EQUAL REPRESENTATION IS NECESSARY................................................................................................................8
CHAPTER 4: LEGAL ISSUES/CHALLENGES IN POLYCENTRIC SOFT LAWS IN THE CONTEXT OF EQUAL
REPRESENTATION OF ALL STAKEHOLDER INTERESTS .............................................................................................8
4.1. CHALLENGES IN TRANSNATIONAL APPLICATION .............................................................................................................8
4.2. THE INTERDEPENDENT ARCTIC ENVIRONMENT ..............................................................................................................9
4.3. RECOMMENDATIONS..............................................................................................................................................10
CHAPTER 6: CONCLUSION....................................................................................................................................11
REFERENCES.........................................................................................................................................................13
Chapter 1: Introduction
Environmental governance in the marine Arctic is a complex system. There are formal
and informal governance structure present in the Arctic. The complexity of the governance is
caused by these different structures. The countries in the Arctic and outside the territory of the
Arctic both try to take an active interest in the environmental governance. Are there issues of
differences in stakeholder representation and if so what could be done to manage these
differences? This is the research viewpoint taken up in this paper.
1.1. Research Background
The Arctic environmental governance is managed by legal and institutional frameworks
which are in the form of soft laws. In addition to this there are also other formal and informal
structures governing it. The Soft laws are not legally binding but are more of regulatory
agreements among international bodies (Nowlan, 2001). The marine Arctic ecosystem is
governed by a complex array of international treaties, conventions and programmes, bilateral
agreements, national and sub-national laws, and nongovernmental and governmental initiatives.
Some of the Governmental and non-governmental institutions that are involved are that of the
Marine Mammal Commission, the Nordic Council and more. The Barents Euro-Arctic Council,
the Alaska Nanuuq Commission, and the Russian Association of the Peoples of the North
(RAIPON) are representative of their respective territories. The Arctic comprises regions of three
continents Asia, Europe and North America along with eight states. The Marine ecosystem
governance is a critical issue for the Arctic (Pagnan, 2000). There is increasing pressure in the
Arctic because of the different activities that are going on there, namely in the form of shipping,
drilling, fisheries and more. The Global climate change issues have now been taken up by the
community at large. This puts more focus on the Arctic. Adaptation to the climate change
requires the different stakeholders to focus on Arctic environmental governance. The
stakeholders include all the countries directly bordering on the Arctic and also all other countries
of the world. Policy makers indigenous people and sub categories of international stakeholders
come into this list. A coherency with equal representation when it comes to Governance
structures is a necessity in the arctic. At local, regional and the global levels the stakeholders
have to be represented equally in their interests as the Arctic problem is a universal problem to
the earth.
1.2. Research Question
The issue of underrepresentation of smaller stakeholders (countries or groups such as
indigenous people) in the formation of polycentric soft law for Arctic environmental regulation
will be addressed here.
Where the legislative system is complex it automatically follows that there would be gaps
in legislation. In analyzing for the existing institutional and legal framework researchers have
established that there is an inherent complexity on how to take into consideration the local,
regional and international scales (OSPAR Commission, 2007). Gaps in governance and
stakeholder representation and interests have been identified, but how far are these gaps reflected
in the arctic governance and are the smaller stakeholders being underrepresented is a question
that has not been addressed in research before. This study of underrepresentation in the
legislative framework would be very broad considering that environmental governance aspects
are in plenty. At one end species oriented approaches exist which concern themselves with polar
bears and beluga whales. There are regional and cross sectoral approaches which concern
themselves with Barents Sea and the greater North East Atlantic’s (Rothwell, 2000). While a
place based ecosystem governance is the general aim, practical steps needs to be taken to
understand how soft law formulations in the past and present might require some change.
Different elements of the legislative and the governance framework are presented, and an
argument is made for change. A multi system approach toward stakeholder representation is
argued for governance in the Arctic environment.
1.4. Method and Structure
A secondary research method has been made use of here. The secondary research method
is one that makes use of existing literature evidence in the subject being analyzed. However, the
research question being answered is quite unique. Not much research has been conducted or a
consensus has been arrived at with respect to stakeholder representation in the law. The very
nature of the law is to ensure it is fair and just for everybody. In the case of the Arctic, the law
can be fair for everybody only when different stakeholder representations are given equal
weightage. For answering whether this weightage is given the research makes use of secondary
data. Primarily the research paper discussions have been divided into three sections. The next
section is a detailed literature review. This forms the core of the paper. All secondary data on the
subject to be discussed along with critical reviews on the data as presented by other researchers
are discussed here. Using the literature review as the base, an argument is made for better
stakeholder representation in chapters 3 and 4. While chapter 3 deals with the stakeholder, types
and marginalized representation, chapter 4 deals with the legal issues and challenges that might
exist for achieving this. The recommendations from discussing the research question are also
presented in this chapter.
Chapter 2: Academic Literature Review
A detailed academic literature review will be presented here. Some of the main subtopics
that are discussed here are the need for environmental governance, the existing polycentric soft
laws, the sustainable management in the arctic environment and the need for complete
stakeholder support and also problems of representations are then discussed.
2.1. Need for Environmental Governance in the Arctic Environment and examples of
Governance
Governance is a very general term that is used to describe those methods and goals that
are required for guiding human behavior toward the achievement of some forms of goals.
Environmental governance is the “the formal and informal arrangements, institutions, and mores
which determine how resources or an environment are utilized: how problems and opportunities
are evaluated and analyzed; what behavior is deemed acceptable or forbidden; and what rules
and sanctions are applied to affect the pattern of resource and environment use” (Ecologic, 2015,
p.1). This subsection will discuss the need for environmental governance and also example of
governance. Some of the environmental governance as established in this area are the
International Convention on the Regulation of Whaling (ICRW), the agreement on the
Conservation of Polar Bears which is an internationally formed one once again, the Convention
on the Protection of marine environment and more (Sherman, 1994). Each of these governing
authorities work with different environmental preservation agendas. The ICRW works with the
regulation of whaling and related sea creatures. An environmental governance for the different
aspects is necessary in order to handle these issues properly.
2.2. Discussion of existing polycentric soft laws
The existing polycentric soft laws in the case of Arctic environmental issues are
discussed here. Arctic law is the international and domestic regulations that are framed for the
Arctic environment, it includes international treaties which specifically deal with Arctic issues.
The first legally binding agreement was the Search and Rescue Agreement that was framed in
2011. The Arctic Search and Rescue Agreement is called the Agreement on Cooperation on
Aeronautical and Maritime Search and Rescue in the Arctic. This is an international treaty and
the states or regions that agreed to this treaty are Canada, Iceland, Denmark, Finland, Sweden
and the United States. This soft law attempts to establish the area of responsibility for each
search and rescue operation that takes place in the Arctic region based on the each of the state’s
and their territorial claims (Sobel et al, 2007). A SAR responsibility coverage is established.
Boundary between states, their sovereignty, rights and jurisdiction are protected by this law. This
is in fact the first ever binding agreement that was signed in order to ensure the Arctic region is
protected. The economic importance of the Arctic region is growing because of the global
warming issues and these forms of regional binding agreements are necessary.
The United Nations Conventions on the Law of the Sea (UNCLOS) aimed to frame the
constitution for the oceans There are specific articles in the UNCLOS that are applicable for
Arctic regions. Article 56 of the UNCLOS sets the rights for the coastal states and the means
they can use to exploit the resources of the regions (Juda, 1999). The resources of the region are
classified as fisheries, minerals and hydrocarbons for energy production and other energy related
resources. The Article 56 also recognizes the Exclusive Economic Zones that are set for these
exploitations. The Article 234 of the UNCLOS on the other hand only considers the legally
binding provisions based on the vulnerability status of the Arctic environment. So the regions
surrounding those vulnerable entities are allowed the freedom to adopt and enforce the necessary
laws for preventions of marine pollution in their areas. Marine pollution in the form of vehicles
in the ocean body are one of the most significant. Ice covered areas in the respective EEZ suffer
because of these pollutions (Ducrotoy, 1999).
Article 76 of the UNCLOS on the other hand sets the limits on the continental shelf as
belonging as a natural prolongation of the land territory. The high seas beyond the national
jurisdiction are considered as the marine protected areas. There are different institutional bodies
that are concerned with the cooperation and regulation of the both maritime safety and
environmental issues in the Arctic. The International Maritime Organization IMO sets the code
of safety for ships in the Polar regions. There are both status quo, non-binding guidelines and
also there are expectations or best practices as set by legally binding codes.
2.3. Sustainable Management of the Arctic environment would be possible only with
complete stakeholder support
Different stakeholders and why diverse stakeholder support in soft laws formulation and
enforcement is required for sustainable management is discussed here. A complete stakeholder
support is required here as the Arctic system cannot be monitored by means of territorial rules.
Different territories are convened here and one nation could not share legislation and
enforcement advantages. This is also the primary reason that a complex system of treaties and
agreements are formed for Arctic governance (Stokke, 2007). Given this context it is not just
state level actors that are required for adequate governance, the non-state actors are also required.
Innovative mechanisms are needed. The indigenous people living in the area are also to be
considered in any legislative formulation or enforcement attempt. Without this form of complete
stakeholder support, there could be disputes in Arctic governance. The strategies used as well as
the soft laws would not lead to a sustainable management practice.
2.4. Representation in Arctic Governance
All stakeholders in the form of the surrounding regions are represented in the Arctic
governance. This includes Canada, the United States, Denmark, Finland, Iceland and others. The
representation in Arctic Governance is quite distributed when it comes to each of these regions
as discussed in the above subsections (Rayfuse, 2008). However, stakeholders often suffer
because of the form of application of enforcements that exists. There are often confusions as to
who should avail of what legislation. The Ocean boundary dispute as one of the challenges
perceived when it comes to forming a unified Arctic law. The Canada vs. USA (Beaufort Sea)
and the Canada vs. Denmark/Greenland (Lincoln Sea) disputes are some of the most mentionable
ones here. There is much confusion among stakeholders as to which of the national shipping
laws will apply here (Chapin et al, 2006). The evolving governance structure includes more
stakeholders in the form of new observer nations which are China, India, Italy, Singapore and
Japan. Under the Canadian chairmanship the stability of rules is assessed. In addition to the
search and rescue agreements, an oil spill agreement was also formed. The Oil spill cooperation
agreement is one where international cooperation is expected with respect to marine oil pollution
preparedness. A need for a strengthened governance regime is expected especially considering
the growing number of stakeholders who were not included before (Juda, and Hennessey, 2001).
Chapter 3: Arguing for better Representation
The research argument that is presented here is that an equal stakeholder representation is
required when it comes to Arctic soft law and governance. Whether there is underrepresentation
when it comes to smaller stakeholders in the formation or the enforcement of polycentric soft
law for Arctic environmental regulations is first discussed. This will set the base to make
recommendations in the next chapter.
3.1 Arctic Stakeholders
Who are affected by the environmental interests of the Arctic? The answer to this would
be almost everyone as any form of environmental change would have an impact on the world in
large. However, there are more direct stakeholders who take part in the existing soft legislations
and then there are other stakeholders who might be observer states such as India and South
Korea. Some of the main Arctic stakeholders who have been involved in the ratification of the
UNCLOS from 1996 onwards is that of Sweden, the Russian Federation, Norway, Iceland and
Finland. The European Community ratified the UNCLOS in 1998, Denmark in 2004 and Canada
in 2003. UNCLOS addresses those issues as related to the marine water pollution, land pollution,
dumping and more.
3.2. The case for Marginalized Representation
A fragmented system of national and international norms could lead to marginalized
representation of few stakeholders. Stakeholders identified as per the ratification of the
UNCLOS however are not the only stakeholders. The UNCLOS does not cover all aspects of the
Arctic governance. The MARPOL, the London convention and more identified much more
stakeholders based on the wild animals, fishes and polar bears which were being protected. As of
2006 while the total countries ratifying these forms of concerns and establishments grew to be 8,
the total countries that were involved globally were around 190 (Myrjord, 2003). Compared to
regions such as the Antarctic, the Arctic is seen to differ in that it includes much more
indigenous populations. The Antarctic is one huge land covered mass, on the other hand the
Arctic has many sub regions where there is the presence of tribes. These tribes are the permanent
residents of the Arctic and the permanent residents have as much territorial claims on their and as
the nautical miles in the form of economic zones (which are identified for the bordering
countries).
Are there marginalized representations of stakeholders in the law? A case for this can be
argued. Consider the fact that in the Arctic there are certain laws and legislations protecting
particular wild life. Consider for instance the Bilateral agreement for the conservation of Polar
bears in the Chukchi/Bering Seas. An agreement has been arrived at with the indigenous groups.
This agreement ensures that the polar bear stocks are not depleted in the Beaufort Sea. The
indigenous populations in either of the areas need to subsist and the polar bear stocks are
necessary for their subsistence (Bower et al, 2002). Given this context although having the
agreement ensures fair representation for the indigenous tribes, does the quota allowed by law
meet their needs? The polar bears are harvested legally in Greenland. Five hundred to six
hundred bears are being taken every year and for polar bear stocks to be stable the amounts have
been reduced. International agreements and soft laws follow the preferred top down approach.
The top down approach considers main actors but does not consider sub populations in the
indigenous tribes, and even the quotas that are reasonably required for the indigenous tribes to
survive and have a decent future (Brunner et al, 2002). The threats of contaminants do exist but
the threats of subsistence also exist. The top down management approach seems to not consider
the complexity of the situations in the territory. A grassroots approach is automatically
implemented based on international agreements, but the aboriginal people in the areas already
play a role in polar bear management. This existing role is often not given importance. There are
also ground challenges that can be handled better by the aboriginal tribes more than the
international state and non-state actors.
3.3. Why Equal Representation is necessary
Existing soft law and polycentric laws and any existing issues that seems to indicate that
stakeholders are not being represented equally will be a problem for the Arctic region. In the
case of representation in the soft laws, a primarily element to consider is that of human dignity.
All stakeholders are involved in the wildlife management decisions. The international authorities
and management have only stepped in, in more recent times (Dowsley, and Wenzel, 2008). So it
is the responsibility of the makers of the soft law to ensure that wildlife management decisions as
formulated in law involves all stakeholders. Biological conservation is a policy that is mutual for
everybody. Equal stakeholder representation hence is a must for everybody.
Stakeholders are very diverse. Aboriginal people might have subsistence needs that are
not being met properly. The quota that is allocated might not be enough and in addition the
aboriginal people in the Arctic might have a historical identity that is connected with that of the
area (Keith et al, 2005). Freeman and Wenzel (2006) and Foote & Wenzel (2009) argue that the
issue of historical identity would come up when discussing the soft laws and their implications.
For instance, consider the fact that most aboriginal people in the Northern Canada province have
actually gained control over the lands because of their authority. Land claim agreements have
been negotiated by these people and for long the people have been used to a way of life where
they protect the wildlife in their area and also subsist on it. However with the international power
distribution it so happens that the soft laws would challenge their authority. Although not an
established legal system, the authority that was enforced in these lands had its roots in tradition.
They understand the ecology of their location better and hence would be able to make better
decisions for this subsistence and conservation (Treseder et al., 1999). These forms of clashes are
why and equal representation is necessary. Having an equal representation in the legal front
could help reduce much of the conflicts between the soft law polycentric governance structures
and traditional authoritarian rules.
Chapter 4: Legal Issues/Challenges in Polycentric Soft Laws in the
context of Equal representation of all stakeholder interests
4.1. Challenges in Transnational Application
There are challenges when it comes to involving all stakeholders in law formulations and
enforcement and these are discussed here.
Having polycentric soft laws and international agreements is by itself complex. However,
ensuring that all stakeholders are represented equally will introduce another layer of complexity.
The legislation as such does aim to ensure fairness for all. Consider the case of Barents Euro-
Arctic Region BEAR which is a multi-lateral agreement which also is polycentric in including
multiple stakeholder viewpoints. The agreement covers much of the Arctic’s northern
hemisphere including that of Denmark, Finland, Iceland and others. National and subnational
entities are both part of this governance system (Derocher et al, 2004). Three indigenous tribes
are also in this system namely the Sami, the Nenets and the Vepsians. The area that the BEAR
addresses is marked by military tensions and rivalry. Also the different commissions that are
related to the Bear makes some participants much more structurally stronger when it comes to
the enforcements and some weaker. The BEAR faces much clout from Russia and there are also
power issues when it comes to enforcing some laws based on the territory in which the issues
(addressed by the laws) falls under. Transnational application is hence problematic on its own. In
addition, the representation of stakeholders from a bottom up approach becomes even more
challenging.
4.2. The Interdependent Arctic Environment
The level of inter-dependency in the Arctic environment is what one of the reasons that
diversified stakeholder support is required and these will be discussed as challenges to the having
an equal representation law
Source: Roo et al, 2008 in “Environmental Governance in the Marine Arctic”
The Arctic environment is highly interdependent. The different soft laws and agreements
are framed based on multiple approaches (hence the name polycentric approach). At one end
there are international approaches. The Polar Bear conservation programs are international
treaties. In the international approaches the top down form of stakeholder priority and
representation might be high. Each country would have aspects to be entertained in the
international treaty and legislation. Here more emphasis might be given to the country level
specifics (Fernandez-Gimenez et al, 2006). On the other hand the local approaches such as the
Beluga Whale Co-management agreements would be more useful in the case of having a bottom
up structure. These are agreements that are formed with the local territories in consideration.
They would focus more on the stakeholders such as the indigenous people and then the local
approach with time could attain an international status. International approaches are usually
binding laws such as the Polar Bear Treaty. So once the legislation is formed then it is enforced
on everybody (Tyrell, 2006). Even if an indigenous tribe does not get representation they would
still have to follow the rules. On the other hand, the local approaches are more non-binding, so
when a rule is formed, they may or may not be followed locally or even internationally. The
context in which such a law is enforced will be given consideration. So according to the Beluga
What Co-management agreements the soft law is actually considered based on the context. This
gives a higher amount of flexibility. Stakeholder representation is better here. However,
conformance in the international levels still becomes an issue.
Consider the issues of single focus and multiple focus issues. In the case of
environmental issues, single focus issues are that which focus on one environmental issue at a
time, this could be the polar bear issue or the beluga whale issues etc. In the case of a single
focus issue stakeholder interests could be addressed better. The stakeholder choices, their
cultural traditions with respect to the issue could maybe be addressed with lesser complexity. On
the other hand when the issue becomes complex or cross-cutting where multiple environmental
aspects are considered then the enforcement constraints arise (Prestrud, and Stirling, 1994).
Different stakeholders might want different priorities. If ecosystem issues are present, then some
stakeholders might want their interests represented with a fixed set of issues and another
stakeholder might want the laws to address a different subset.
4.3. Recommendations
In considering the strengths and weaknesses of the current approach expert’s views have
established that there is a lack of commitments, targets and goals. Most current governance
systems lack the strategy to pursue a commitment strongly. The very nature of the soft law
whose flexibility is required to protect stakeholder’s interests also makes it structurally weak to
be enforced. In the context of the actors that are associated with the law making and enforcement
it is established that there are gaps. A complete integration of the indigenous people into the
governance system would be helpful. However indigenous people are queried on their land rights
but not much successful significance is allocated to their traditions. These traditions must be
considered when formulating and enforcing environmental laws. In the sharing of benefits once
again there are many gaps. The existing laws are such that they some local communities might
not be able to take full advantage of the resources such as the fishing and mining. The non-state
actors require more power, the state level actors seem to have better representation, they have
influence over the enforcement of soft laws. In terms of the environment, it can be said the
Arctic is being considered completely with a soft law perspective that overlaps with one another.
This leads to a situation where management of the laws, the impact of the laws on one another
and more, becomes complex (Ross, 2000). An important reason that all stakeholders might not
be consulted is because of financial resources. Although different nations are seen to pitch in
with their ideas and resources, there are one to many issues to be addressed in the Arctic context.
Having different stakeholders to sit down and state their issues could be very complex. AMAP or
the Arctic Council runs on a very modest budget. Similarly, the other regional and local councils
are also very much constrained when it comes to budgeting. Given this context it would be very
difficult for implementing a comprehensive stakeholder representation policy when it comes to
law making.
A few innovative ways for meeting these challenges as noted in literature. Primarily as
researchers state the structural traps that exist in the soft laws must be addressed. These structural
traps are what leads to unequal stakeholder representation (Brunner et al, 2002). When making
legislation for Arctic governance, it is necessary to consider the people in the location. Although
the top down approach gives much structure to the law making process, considering the bottom
down approach also would ensure that all stakeholders are represented. The issues being
addressed by the law must not become a politicized thing, instead the issues must be considered
from the traditional and cultural viewpoint of the people. While difference of opinion is what
leads to conflict (Robbins, 2007) having different stakeholder approach would be a more
sustainable solution. The subtle structural traps of negotiating for representation could be
changed and a more direct functional approach could be used. Every individual stakeholder
could be queried directly. Groups and subgroups could be brought into discussions. Although
financially speaking, this would be expensive, this solution is more sustainable. Even in these
contexts under representations of some groups could still occur. This is because of what Pielke
(2007) calls as the politicized science and the scientized policy. A mingling of politics and
science in conditions that are not exactly balanced could lead to situations where there is
interest’s tradeoff. A region might want to tradeoff some of their people’s interests because it
believes that the people actually need something else (Pielke, 2007).
Some other recommendations that are made to address these problems are that of having
the Arctic system have a more legally binding regime instead of the soft law. Although the soft
law was proposed in order to serve the interests of multiple territories, having more legally
binding codes could be useful. The system would be more impartial and people’s interests would
be served with time as the governance legislation is amended over time as with all other legal
systems in the world. The frameworks being flexible might not have served much of a use. There
are much hidden costs that arise with enforcing soft laws and this could in turn be used to collect
data on different stakeholder representations.
Chapter 6: Conclusion
Environmental Governance of the marine system has been handled for years based on a
very complex system. Environmental governance is necessary in the Arctic zone mainly because
of how the natural ecosystem deterioration issues have taken center stage in the international
circles. Given this context, this research essay analyzed for the issue of underrepresentation of
smaller stakeholders (mainly indigenous people). In analyzing for the issues of smaller
stakeholders it has been identified that although existing soft laws are formulated for supporting
them, there are still gaps in representation. Secondary research method was adopted. A detailed
literature review was conducted here. The need for environmental governance, an example of the
governance and also a detailed discussion of some of the existing polycentric laws was done
here. It is thus concluded with the support of literature review that all stakeholder representation
is necessary for there to be an efficient and sustainable Arctic Governance.
The next point was to check if a case exists for better representation. In the third chapter,
the different Arctic stakeholders were identified. A case does exist for marginalized
representation. Stakeholders are diverse and unless all stakeholders are represented equally the
Arctic governance would not be complete. In considering different stakeholder viewpoints, some
more elements to consider are that of: Uniqueness-The unique elements in the Arctic marine area
that leads to some of the stakeholders being underrepresented must be considered. These are the
elements when addressed carefully, complete stakeholder representation can be achieved.
Secondly there are gaps in the current governance structure and there are also overlaps. The
overlaps occur because some of the legal areas are being addressed redundantly by different
regions, territories and countries. On the other hand, some issues are not getting the
representation they require. The gaps and overlaps in the governance structure if met adequately
could lead to better efficiency. Transatlantic policies and agreements also has to be utilized
effectively. These policies will help in the adaptation of the governance to the minority
stakeholder. Although transatlantic governance systems cannot exactly be enforced to the end
level, some amount of awareness shown by transatlantic entities will help all stakeholders,
marginalized and otherwise.
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191–208

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Polycentric Governance and Soft law in Arctic Environmental Governance

  • 1. Title: Polycentric Governance and Soft law in Arctic Environmental Governance Student Name Course Name Date
  • 2. Table of Contents CHAPTER 1: INTRODUCTION ..................................................................................................................................3 1.1. RESEARCH BACKGROUND..........................................................................................................................................3 1.2. RESEARCH QUESTION...............................................................................................................................................3 1.4. METHOD AND STRUCTURE ........................................................................................................................................4 CHAPTER 2: ACADEMIC LITERATURE REVIEW.........................................................................................................4 2.1. NEED FOR ENVIRONMENTAL GOVERNANCE IN THE ARCTIC ENVIRONMENT AND EXAMPLES OF GOVERNANCE.............................4 2.2. DISCUSSION OF EXISTING POLYCENTRIC SOFT LAWS.........................................................................................................5 2.3. SUSTAINABLE MANAGEMENT OF THE ARCTIC ENVIRONMENT WOULD BE POSSIBLE ONLY WITH COMPLETE STAKEHOLDER SUPPORT.6 2.4. REPRESENTATION IN ARCTIC GOVERNANCE...................................................................................................................6 CHAPTER 3: ARGUING FOR BETTER REPRESENTATION...........................................................................................6 3.1 ARCTIC STAKEHOLDERS..............................................................................................................................................6 3.2. THE CASE FOR MARGINALIZED REPRESENTATION ...........................................................................................................7 3.3. WHY EQUAL REPRESENTATION IS NECESSARY................................................................................................................8 CHAPTER 4: LEGAL ISSUES/CHALLENGES IN POLYCENTRIC SOFT LAWS IN THE CONTEXT OF EQUAL REPRESENTATION OF ALL STAKEHOLDER INTERESTS .............................................................................................8 4.1. CHALLENGES IN TRANSNATIONAL APPLICATION .............................................................................................................8 4.2. THE INTERDEPENDENT ARCTIC ENVIRONMENT ..............................................................................................................9 4.3. RECOMMENDATIONS..............................................................................................................................................10 CHAPTER 6: CONCLUSION....................................................................................................................................11 REFERENCES.........................................................................................................................................................13
  • 3. Chapter 1: Introduction Environmental governance in the marine Arctic is a complex system. There are formal and informal governance structure present in the Arctic. The complexity of the governance is caused by these different structures. The countries in the Arctic and outside the territory of the Arctic both try to take an active interest in the environmental governance. Are there issues of differences in stakeholder representation and if so what could be done to manage these differences? This is the research viewpoint taken up in this paper. 1.1. Research Background The Arctic environmental governance is managed by legal and institutional frameworks which are in the form of soft laws. In addition to this there are also other formal and informal structures governing it. The Soft laws are not legally binding but are more of regulatory agreements among international bodies (Nowlan, 2001). The marine Arctic ecosystem is governed by a complex array of international treaties, conventions and programmes, bilateral agreements, national and sub-national laws, and nongovernmental and governmental initiatives. Some of the Governmental and non-governmental institutions that are involved are that of the Marine Mammal Commission, the Nordic Council and more. The Barents Euro-Arctic Council, the Alaska Nanuuq Commission, and the Russian Association of the Peoples of the North (RAIPON) are representative of their respective territories. The Arctic comprises regions of three continents Asia, Europe and North America along with eight states. The Marine ecosystem governance is a critical issue for the Arctic (Pagnan, 2000). There is increasing pressure in the Arctic because of the different activities that are going on there, namely in the form of shipping, drilling, fisheries and more. The Global climate change issues have now been taken up by the community at large. This puts more focus on the Arctic. Adaptation to the climate change requires the different stakeholders to focus on Arctic environmental governance. The stakeholders include all the countries directly bordering on the Arctic and also all other countries of the world. Policy makers indigenous people and sub categories of international stakeholders come into this list. A coherency with equal representation when it comes to Governance structures is a necessity in the arctic. At local, regional and the global levels the stakeholders have to be represented equally in their interests as the Arctic problem is a universal problem to the earth. 1.2. Research Question The issue of underrepresentation of smaller stakeholders (countries or groups such as indigenous people) in the formation of polycentric soft law for Arctic environmental regulation will be addressed here. Where the legislative system is complex it automatically follows that there would be gaps in legislation. In analyzing for the existing institutional and legal framework researchers have established that there is an inherent complexity on how to take into consideration the local, regional and international scales (OSPAR Commission, 2007). Gaps in governance and stakeholder representation and interests have been identified, but how far are these gaps reflected in the arctic governance and are the smaller stakeholders being underrepresented is a question that has not been addressed in research before. This study of underrepresentation in the
  • 4. legislative framework would be very broad considering that environmental governance aspects are in plenty. At one end species oriented approaches exist which concern themselves with polar bears and beluga whales. There are regional and cross sectoral approaches which concern themselves with Barents Sea and the greater North East Atlantic’s (Rothwell, 2000). While a place based ecosystem governance is the general aim, practical steps needs to be taken to understand how soft law formulations in the past and present might require some change. Different elements of the legislative and the governance framework are presented, and an argument is made for change. A multi system approach toward stakeholder representation is argued for governance in the Arctic environment. 1.4. Method and Structure A secondary research method has been made use of here. The secondary research method is one that makes use of existing literature evidence in the subject being analyzed. However, the research question being answered is quite unique. Not much research has been conducted or a consensus has been arrived at with respect to stakeholder representation in the law. The very nature of the law is to ensure it is fair and just for everybody. In the case of the Arctic, the law can be fair for everybody only when different stakeholder representations are given equal weightage. For answering whether this weightage is given the research makes use of secondary data. Primarily the research paper discussions have been divided into three sections. The next section is a detailed literature review. This forms the core of the paper. All secondary data on the subject to be discussed along with critical reviews on the data as presented by other researchers are discussed here. Using the literature review as the base, an argument is made for better stakeholder representation in chapters 3 and 4. While chapter 3 deals with the stakeholder, types and marginalized representation, chapter 4 deals with the legal issues and challenges that might exist for achieving this. The recommendations from discussing the research question are also presented in this chapter. Chapter 2: Academic Literature Review A detailed academic literature review will be presented here. Some of the main subtopics that are discussed here are the need for environmental governance, the existing polycentric soft laws, the sustainable management in the arctic environment and the need for complete stakeholder support and also problems of representations are then discussed. 2.1. Need for Environmental Governance in the Arctic Environment and examples of Governance Governance is a very general term that is used to describe those methods and goals that are required for guiding human behavior toward the achievement of some forms of goals. Environmental governance is the “the formal and informal arrangements, institutions, and mores which determine how resources or an environment are utilized: how problems and opportunities are evaluated and analyzed; what behavior is deemed acceptable or forbidden; and what rules and sanctions are applied to affect the pattern of resource and environment use” (Ecologic, 2015, p.1). This subsection will discuss the need for environmental governance and also example of
  • 5. governance. Some of the environmental governance as established in this area are the International Convention on the Regulation of Whaling (ICRW), the agreement on the Conservation of Polar Bears which is an internationally formed one once again, the Convention on the Protection of marine environment and more (Sherman, 1994). Each of these governing authorities work with different environmental preservation agendas. The ICRW works with the regulation of whaling and related sea creatures. An environmental governance for the different aspects is necessary in order to handle these issues properly. 2.2. Discussion of existing polycentric soft laws The existing polycentric soft laws in the case of Arctic environmental issues are discussed here. Arctic law is the international and domestic regulations that are framed for the Arctic environment, it includes international treaties which specifically deal with Arctic issues. The first legally binding agreement was the Search and Rescue Agreement that was framed in 2011. The Arctic Search and Rescue Agreement is called the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic. This is an international treaty and the states or regions that agreed to this treaty are Canada, Iceland, Denmark, Finland, Sweden and the United States. This soft law attempts to establish the area of responsibility for each search and rescue operation that takes place in the Arctic region based on the each of the state’s and their territorial claims (Sobel et al, 2007). A SAR responsibility coverage is established. Boundary between states, their sovereignty, rights and jurisdiction are protected by this law. This is in fact the first ever binding agreement that was signed in order to ensure the Arctic region is protected. The economic importance of the Arctic region is growing because of the global warming issues and these forms of regional binding agreements are necessary. The United Nations Conventions on the Law of the Sea (UNCLOS) aimed to frame the constitution for the oceans There are specific articles in the UNCLOS that are applicable for Arctic regions. Article 56 of the UNCLOS sets the rights for the coastal states and the means they can use to exploit the resources of the regions (Juda, 1999). The resources of the region are classified as fisheries, minerals and hydrocarbons for energy production and other energy related resources. The Article 56 also recognizes the Exclusive Economic Zones that are set for these exploitations. The Article 234 of the UNCLOS on the other hand only considers the legally binding provisions based on the vulnerability status of the Arctic environment. So the regions surrounding those vulnerable entities are allowed the freedom to adopt and enforce the necessary laws for preventions of marine pollution in their areas. Marine pollution in the form of vehicles in the ocean body are one of the most significant. Ice covered areas in the respective EEZ suffer because of these pollutions (Ducrotoy, 1999). Article 76 of the UNCLOS on the other hand sets the limits on the continental shelf as belonging as a natural prolongation of the land territory. The high seas beyond the national jurisdiction are considered as the marine protected areas. There are different institutional bodies that are concerned with the cooperation and regulation of the both maritime safety and environmental issues in the Arctic. The International Maritime Organization IMO sets the code of safety for ships in the Polar regions. There are both status quo, non-binding guidelines and also there are expectations or best practices as set by legally binding codes.
  • 6. 2.3. Sustainable Management of the Arctic environment would be possible only with complete stakeholder support Different stakeholders and why diverse stakeholder support in soft laws formulation and enforcement is required for sustainable management is discussed here. A complete stakeholder support is required here as the Arctic system cannot be monitored by means of territorial rules. Different territories are convened here and one nation could not share legislation and enforcement advantages. This is also the primary reason that a complex system of treaties and agreements are formed for Arctic governance (Stokke, 2007). Given this context it is not just state level actors that are required for adequate governance, the non-state actors are also required. Innovative mechanisms are needed. The indigenous people living in the area are also to be considered in any legislative formulation or enforcement attempt. Without this form of complete stakeholder support, there could be disputes in Arctic governance. The strategies used as well as the soft laws would not lead to a sustainable management practice. 2.4. Representation in Arctic Governance All stakeholders in the form of the surrounding regions are represented in the Arctic governance. This includes Canada, the United States, Denmark, Finland, Iceland and others. The representation in Arctic Governance is quite distributed when it comes to each of these regions as discussed in the above subsections (Rayfuse, 2008). However, stakeholders often suffer because of the form of application of enforcements that exists. There are often confusions as to who should avail of what legislation. The Ocean boundary dispute as one of the challenges perceived when it comes to forming a unified Arctic law. The Canada vs. USA (Beaufort Sea) and the Canada vs. Denmark/Greenland (Lincoln Sea) disputes are some of the most mentionable ones here. There is much confusion among stakeholders as to which of the national shipping laws will apply here (Chapin et al, 2006). The evolving governance structure includes more stakeholders in the form of new observer nations which are China, India, Italy, Singapore and Japan. Under the Canadian chairmanship the stability of rules is assessed. In addition to the search and rescue agreements, an oil spill agreement was also formed. The Oil spill cooperation agreement is one where international cooperation is expected with respect to marine oil pollution preparedness. A need for a strengthened governance regime is expected especially considering the growing number of stakeholders who were not included before (Juda, and Hennessey, 2001). Chapter 3: Arguing for better Representation The research argument that is presented here is that an equal stakeholder representation is required when it comes to Arctic soft law and governance. Whether there is underrepresentation when it comes to smaller stakeholders in the formation or the enforcement of polycentric soft law for Arctic environmental regulations is first discussed. This will set the base to make recommendations in the next chapter. 3.1 Arctic Stakeholders Who are affected by the environmental interests of the Arctic? The answer to this would be almost everyone as any form of environmental change would have an impact on the world in large. However, there are more direct stakeholders who take part in the existing soft legislations
  • 7. and then there are other stakeholders who might be observer states such as India and South Korea. Some of the main Arctic stakeholders who have been involved in the ratification of the UNCLOS from 1996 onwards is that of Sweden, the Russian Federation, Norway, Iceland and Finland. The European Community ratified the UNCLOS in 1998, Denmark in 2004 and Canada in 2003. UNCLOS addresses those issues as related to the marine water pollution, land pollution, dumping and more. 3.2. The case for Marginalized Representation A fragmented system of national and international norms could lead to marginalized representation of few stakeholders. Stakeholders identified as per the ratification of the UNCLOS however are not the only stakeholders. The UNCLOS does not cover all aspects of the Arctic governance. The MARPOL, the London convention and more identified much more stakeholders based on the wild animals, fishes and polar bears which were being protected. As of 2006 while the total countries ratifying these forms of concerns and establishments grew to be 8, the total countries that were involved globally were around 190 (Myrjord, 2003). Compared to regions such as the Antarctic, the Arctic is seen to differ in that it includes much more indigenous populations. The Antarctic is one huge land covered mass, on the other hand the Arctic has many sub regions where there is the presence of tribes. These tribes are the permanent residents of the Arctic and the permanent residents have as much territorial claims on their and as the nautical miles in the form of economic zones (which are identified for the bordering countries). Are there marginalized representations of stakeholders in the law? A case for this can be argued. Consider the fact that in the Arctic there are certain laws and legislations protecting particular wild life. Consider for instance the Bilateral agreement for the conservation of Polar bears in the Chukchi/Bering Seas. An agreement has been arrived at with the indigenous groups. This agreement ensures that the polar bear stocks are not depleted in the Beaufort Sea. The indigenous populations in either of the areas need to subsist and the polar bear stocks are necessary for their subsistence (Bower et al, 2002). Given this context although having the agreement ensures fair representation for the indigenous tribes, does the quota allowed by law meet their needs? The polar bears are harvested legally in Greenland. Five hundred to six hundred bears are being taken every year and for polar bear stocks to be stable the amounts have been reduced. International agreements and soft laws follow the preferred top down approach. The top down approach considers main actors but does not consider sub populations in the indigenous tribes, and even the quotas that are reasonably required for the indigenous tribes to survive and have a decent future (Brunner et al, 2002). The threats of contaminants do exist but the threats of subsistence also exist. The top down management approach seems to not consider the complexity of the situations in the territory. A grassroots approach is automatically implemented based on international agreements, but the aboriginal people in the areas already play a role in polar bear management. This existing role is often not given importance. There are also ground challenges that can be handled better by the aboriginal tribes more than the international state and non-state actors.
  • 8. 3.3. Why Equal Representation is necessary Existing soft law and polycentric laws and any existing issues that seems to indicate that stakeholders are not being represented equally will be a problem for the Arctic region. In the case of representation in the soft laws, a primarily element to consider is that of human dignity. All stakeholders are involved in the wildlife management decisions. The international authorities and management have only stepped in, in more recent times (Dowsley, and Wenzel, 2008). So it is the responsibility of the makers of the soft law to ensure that wildlife management decisions as formulated in law involves all stakeholders. Biological conservation is a policy that is mutual for everybody. Equal stakeholder representation hence is a must for everybody. Stakeholders are very diverse. Aboriginal people might have subsistence needs that are not being met properly. The quota that is allocated might not be enough and in addition the aboriginal people in the Arctic might have a historical identity that is connected with that of the area (Keith et al, 2005). Freeman and Wenzel (2006) and Foote & Wenzel (2009) argue that the issue of historical identity would come up when discussing the soft laws and their implications. For instance, consider the fact that most aboriginal people in the Northern Canada province have actually gained control over the lands because of their authority. Land claim agreements have been negotiated by these people and for long the people have been used to a way of life where they protect the wildlife in their area and also subsist on it. However with the international power distribution it so happens that the soft laws would challenge their authority. Although not an established legal system, the authority that was enforced in these lands had its roots in tradition. They understand the ecology of their location better and hence would be able to make better decisions for this subsistence and conservation (Treseder et al., 1999). These forms of clashes are why and equal representation is necessary. Having an equal representation in the legal front could help reduce much of the conflicts between the soft law polycentric governance structures and traditional authoritarian rules. Chapter 4: Legal Issues/Challenges in Polycentric Soft Laws in the context of Equal representation of all stakeholder interests 4.1. Challenges in Transnational Application There are challenges when it comes to involving all stakeholders in law formulations and enforcement and these are discussed here. Having polycentric soft laws and international agreements is by itself complex. However, ensuring that all stakeholders are represented equally will introduce another layer of complexity. The legislation as such does aim to ensure fairness for all. Consider the case of Barents Euro- Arctic Region BEAR which is a multi-lateral agreement which also is polycentric in including multiple stakeholder viewpoints. The agreement covers much of the Arctic’s northern hemisphere including that of Denmark, Finland, Iceland and others. National and subnational entities are both part of this governance system (Derocher et al, 2004). Three indigenous tribes are also in this system namely the Sami, the Nenets and the Vepsians. The area that the BEAR addresses is marked by military tensions and rivalry. Also the different commissions that are related to the Bear makes some participants much more structurally stronger when it comes to
  • 9. the enforcements and some weaker. The BEAR faces much clout from Russia and there are also power issues when it comes to enforcing some laws based on the territory in which the issues (addressed by the laws) falls under. Transnational application is hence problematic on its own. In addition, the representation of stakeholders from a bottom up approach becomes even more challenging. 4.2. The Interdependent Arctic Environment The level of inter-dependency in the Arctic environment is what one of the reasons that diversified stakeholder support is required and these will be discussed as challenges to the having an equal representation law Source: Roo et al, 2008 in “Environmental Governance in the Marine Arctic” The Arctic environment is highly interdependent. The different soft laws and agreements are framed based on multiple approaches (hence the name polycentric approach). At one end there are international approaches. The Polar Bear conservation programs are international treaties. In the international approaches the top down form of stakeholder priority and representation might be high. Each country would have aspects to be entertained in the international treaty and legislation. Here more emphasis might be given to the country level specifics (Fernandez-Gimenez et al, 2006). On the other hand the local approaches such as the Beluga Whale Co-management agreements would be more useful in the case of having a bottom up structure. These are agreements that are formed with the local territories in consideration. They would focus more on the stakeholders such as the indigenous people and then the local approach with time could attain an international status. International approaches are usually binding laws such as the Polar Bear Treaty. So once the legislation is formed then it is enforced on everybody (Tyrell, 2006). Even if an indigenous tribe does not get representation they would
  • 10. still have to follow the rules. On the other hand, the local approaches are more non-binding, so when a rule is formed, they may or may not be followed locally or even internationally. The context in which such a law is enforced will be given consideration. So according to the Beluga What Co-management agreements the soft law is actually considered based on the context. This gives a higher amount of flexibility. Stakeholder representation is better here. However, conformance in the international levels still becomes an issue. Consider the issues of single focus and multiple focus issues. In the case of environmental issues, single focus issues are that which focus on one environmental issue at a time, this could be the polar bear issue or the beluga whale issues etc. In the case of a single focus issue stakeholder interests could be addressed better. The stakeholder choices, their cultural traditions with respect to the issue could maybe be addressed with lesser complexity. On the other hand when the issue becomes complex or cross-cutting where multiple environmental aspects are considered then the enforcement constraints arise (Prestrud, and Stirling, 1994). Different stakeholders might want different priorities. If ecosystem issues are present, then some stakeholders might want their interests represented with a fixed set of issues and another stakeholder might want the laws to address a different subset. 4.3. Recommendations In considering the strengths and weaknesses of the current approach expert’s views have established that there is a lack of commitments, targets and goals. Most current governance systems lack the strategy to pursue a commitment strongly. The very nature of the soft law whose flexibility is required to protect stakeholder’s interests also makes it structurally weak to be enforced. In the context of the actors that are associated with the law making and enforcement it is established that there are gaps. A complete integration of the indigenous people into the governance system would be helpful. However indigenous people are queried on their land rights but not much successful significance is allocated to their traditions. These traditions must be considered when formulating and enforcing environmental laws. In the sharing of benefits once again there are many gaps. The existing laws are such that they some local communities might not be able to take full advantage of the resources such as the fishing and mining. The non-state actors require more power, the state level actors seem to have better representation, they have influence over the enforcement of soft laws. In terms of the environment, it can be said the Arctic is being considered completely with a soft law perspective that overlaps with one another. This leads to a situation where management of the laws, the impact of the laws on one another and more, becomes complex (Ross, 2000). An important reason that all stakeholders might not be consulted is because of financial resources. Although different nations are seen to pitch in with their ideas and resources, there are one to many issues to be addressed in the Arctic context. Having different stakeholders to sit down and state their issues could be very complex. AMAP or the Arctic Council runs on a very modest budget. Similarly, the other regional and local councils are also very much constrained when it comes to budgeting. Given this context it would be very difficult for implementing a comprehensive stakeholder representation policy when it comes to law making.
  • 11. A few innovative ways for meeting these challenges as noted in literature. Primarily as researchers state the structural traps that exist in the soft laws must be addressed. These structural traps are what leads to unequal stakeholder representation (Brunner et al, 2002). When making legislation for Arctic governance, it is necessary to consider the people in the location. Although the top down approach gives much structure to the law making process, considering the bottom down approach also would ensure that all stakeholders are represented. The issues being addressed by the law must not become a politicized thing, instead the issues must be considered from the traditional and cultural viewpoint of the people. While difference of opinion is what leads to conflict (Robbins, 2007) having different stakeholder approach would be a more sustainable solution. The subtle structural traps of negotiating for representation could be changed and a more direct functional approach could be used. Every individual stakeholder could be queried directly. Groups and subgroups could be brought into discussions. Although financially speaking, this would be expensive, this solution is more sustainable. Even in these contexts under representations of some groups could still occur. This is because of what Pielke (2007) calls as the politicized science and the scientized policy. A mingling of politics and science in conditions that are not exactly balanced could lead to situations where there is interest’s tradeoff. A region might want to tradeoff some of their people’s interests because it believes that the people actually need something else (Pielke, 2007). Some other recommendations that are made to address these problems are that of having the Arctic system have a more legally binding regime instead of the soft law. Although the soft law was proposed in order to serve the interests of multiple territories, having more legally binding codes could be useful. The system would be more impartial and people’s interests would be served with time as the governance legislation is amended over time as with all other legal systems in the world. The frameworks being flexible might not have served much of a use. There are much hidden costs that arise with enforcing soft laws and this could in turn be used to collect data on different stakeholder representations. Chapter 6: Conclusion Environmental Governance of the marine system has been handled for years based on a very complex system. Environmental governance is necessary in the Arctic zone mainly because of how the natural ecosystem deterioration issues have taken center stage in the international circles. Given this context, this research essay analyzed for the issue of underrepresentation of smaller stakeholders (mainly indigenous people). In analyzing for the issues of smaller stakeholders it has been identified that although existing soft laws are formulated for supporting them, there are still gaps in representation. Secondary research method was adopted. A detailed literature review was conducted here. The need for environmental governance, an example of the governance and also a detailed discussion of some of the existing polycentric laws was done here. It is thus concluded with the support of literature review that all stakeholder representation is necessary for there to be an efficient and sustainable Arctic Governance. The next point was to check if a case exists for better representation. In the third chapter, the different Arctic stakeholders were identified. A case does exist for marginalized representation. Stakeholders are diverse and unless all stakeholders are represented equally the
  • 12. Arctic governance would not be complete. In considering different stakeholder viewpoints, some more elements to consider are that of: Uniqueness-The unique elements in the Arctic marine area that leads to some of the stakeholders being underrepresented must be considered. These are the elements when addressed carefully, complete stakeholder representation can be achieved. Secondly there are gaps in the current governance structure and there are also overlaps. The overlaps occur because some of the legal areas are being addressed redundantly by different regions, territories and countries. On the other hand, some issues are not getting the representation they require. The gaps and overlaps in the governance structure if met adequately could lead to better efficiency. Transatlantic policies and agreements also has to be utilized effectively. These policies will help in the adaptation of the governance to the minority stakeholder. Although transatlantic governance systems cannot exactly be enforced to the end level, some amount of awareness shown by transatlantic entities will help all stakeholders, marginalized and otherwise.
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