1. Bachelor Thesis
The New Arctic: Gas and Oil Developments with
Implications for Arctic Governance
By
Stefan Kuzmanovski
Spring 2014

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First Name : Stefan
Last Name : Kuzmanovski
Matriculation No.: 20330081
e-mail-address: s.kuzmanovski@jacobs-university.de
Major: Integrated Environmental Studies
Supervisor: Prof. Dr. Karen Smith-Stegen
Course Instructor: Prof. Dr. Dennis Dittrich
Course: Bachelor Thesis Seminar (course 990301)
Word count:
Submission Date: 25.04.2014
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Signature Date

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Student Declaration
1. With my signature, I certify that this thesis has been written by me using only the
indicated resources and materials. Where I have presented data and results, the
data and results are complete, genuine, and have been obtained by me unless
otherwise acknowledged; where my results derive from computer programs, these
computer programs have been written by me unless otherwise acknowledged. I
further confirm that this thesis has not been submitted, either in part or as a whole,
for any other academic degree at this or another institution.
2. a) I permit the lodging of a copy of this thesis in the IRC, which shall be
made available for the academic use of staff and students.
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Signature Place, Date

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Acknowledgements
I would like to thank my Thesis supervisor Prof. Dr. Karen Smith-Stegen for her
insightful comments on my work. Without her contribution the quality of this work would
not have been the same.
A big gratitude to all my friends for keeping me sane and motivating me throughout the
process of writing. Thank you Franzi, Cheema, Archie and Luisa for distracting me from
my work when I needed it and keeping me focused and on track when the rest of the
time.
Last but not least, a big thank you to my family and especially my sister, for always
being there for me.
Stefan Kuzmanovski
24.04.2014

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Contents
The new Arctic: Gas and Oil Developments with Implications for Arctic Governance ..... 1
Student Declaration......................................................................................................... 3
Acknowledgements ......................................................................................................... 4
Abstract........................................................................................................................... 6
List of Abbreviations and Acronyms ................................................................................ 7
1. Introduction ................................................................................................................. 8
2. Legal regime for environmental protection ................................................................ 12
2.1 Regional governance for oil and gas exploration and exploitation....................... 13
2.2 International governance and oil and gas exploration and exploitation................ 14
2.2.1 United Nations Convention on Law of the Sea.............................................. 15
2.2.2 OSPAR.......................................................................................................... 17
2.2.3 MARPOL 73/78............................................................................................. 19
2.2.4 OPRC............................................................................................................ 21
3. The Future of Arctic Governance .............................................................................. 24
3.1 Status-quo ........................................................................................................... 25
3.2 Fully integrated institutional arrangement ............................................................ 27
3.3 Complex Regime ................................................................................................. 30
4. Conclusion ................................................................................................................ 31
References.................................................................................................................... 34
Appendix 1 .................................................................................................................... 39
Appendix 2 .................................................................................................................... 41
Appendix 3 .................................................................................................................... 42
Figure 1......................................................................................................................... 44

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Abstract
The Arctic is experiencing rapid environmental change due to human-induced global
warming. The environmental change in the Arctic will open up the area to new economic
activity, most prominently oil and gas exploration and exploitation. The rush for the
newly accessible Arctic resources will place immense pressure on the current
environmental laws and regulations in the Arctic as well as the overall governance
regime in the Arctic. This paper looks at the different regional and international
environmental regimes and agreements in the Arctic and puts them in the context of a
wider governance regime for the Arctic. The framework of Keohane and Victor (2011) is
used to analyze and evaluate the suitability of the current governance regime to the
unique and ever-changing Arctic socioecological environment. This paper finds that a
fully integrated governance system for the Arctic vis-à-vis the Antarctic Treaty System is
a politically undesirable solution and not suitable for the Arctic. On the other hand, a
fully incongruent regime is also not fitting and a counter-productive solution for the
Arctic. A Complex Regime which is somewhere in between the fully integrated and
incongruent solutions would be best suited to Arctic political and environmental reality.
This finding implies that political resources should not be wasted on trying to negotiate a
new regional or international agreement that steers the Arctic in the fully integrated
governance regime direction but resources should be put into strengthening the
currently available instruments and their mutual integration in certain aspects. This
would strengthen the current Arctic Complex Regime and provide for stronger
environmental protection and monitoring in the Arctic.

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List of Abbreviations and Acronyms
AEPS Arctic Environmental Protection Strategy
ATS Antarctic Treaty System
EPPR Emergency prevention, preparedness and response
IPCC
IUCN
Intergovernmental Panel on Climate Change
International Conservation Union
MARPOL 73/78 International Convention for the Prevention of Pollution From
Ships, 1973 as modified by the Protocol of 1978
NSIDC National Snow and Ice Data Center
OPRC The 1990 International Convention on Oil Pollution
preparedness, response and co-operation
OSPAR
Convention
The Convention for the Protection of the Marine Environment of
the North-East Atlantic
PAME Protection of the Arctic Marine Environment
UNCLOS The United Nations Convention on the Law of the Sea
USGS United States Geological Survey

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1. Introduction
Human induced climate change is transforming the world around us and nowhere is this
change as conspicuous as in the Arctic. The IPCC (Intergovernmental Panel on Climate
Change) in its Fourth Assessment Report found that the Arctic is especially vulnerable
to impacts of climate change – average Arctic temperatures increased at almost twice
the global average rate in the past 100 years (IPCC, 2007). The NSIDC (National Snow
and Ice Data Center) reported, in August 2008, that “the Arctic Ocean lost more ice than
any previous August in the satellite record”, and the September 2008 extent, a standard
measure in the scientific study of Arctic sea ice, was 34% below the long-term average
from 1979 to 2000 (NSIDC, 2008). Because of climate change the Arctic is
experiencing rapid change which will transform it from a perpetually ice-covered region
to a seasonally ice-free sea (“ACIA,” 2004; Holland et al., 2006). However, it still
remains unknown when the Arctic will be seasonally ice-free, with estimates ranging
from the next few decades to the end of this century (Holland et al., 2006; Maslowski et
al., 2012).
The implications of a melting Arctic are many: new shipping routes, new commercial
fisheries, tourism, and most importantly new opportunities for oil and gas exploration
and exploitation. Most important are the new opportunities for oil and gas exploration
and exploitation. A 2008 USGS (United States Geological Survey) study found that the
Arctic has around 13% of the world’s undiscovered technically recoverable oil reserves
and 30% of the world’s undiscovered gas reserves (Gautier et al., 2009). These large
quantities of oil and gas and the prospect of increased accessibility due to melting of the

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Arctic sea ice has generated an unprecedented interest in the previously geopolitically
calm Arctic Sea (Berkman & Young, 2009).
However, oil and gas in the Arctic region is hardly a recent development. Offshore
exploratory drilling and oil production has taken place in several Arctic regions, including
the Canadian Beaufort Sea, West Greenland, the Norwegian Sea, the Barents Sea, the
West Siberian Basin and the Far East Siberian Basins (The Pew Environment Group,
2010). Most of the current oil and gas production in the Arctic comes from on-shore and
near-shore1 drilling, however, increased exploration and production form off-shore
resources in the Arctic Ocean is expected as result of new technologies and reduction
in sea ice coverage (ibid).
Three main factors make oil exploration and exploitation in the Arctic a daunting task.
First, the physical environment of the Arctic Ocean poses many challenges for oil
exploration and production activities as well as potential oil spill cleanup (Løset, et al.,
1999). The Arctic Ocean is characterized by moving sea ice, subzero temperatures,
extended periods of fog, and weeklong storms with extreme winds (ibid). The long
winter months are dominated by long hours of darkness and six weeks during which the
sun never rises above the horizon (ibid). Therefore, the risk of an oil spill due to oil and
gas exploration and exploitation further offshore in the Arctic is much greater than most
regions on Earth.
Second, in the likely case of an oil spill in the Arctic, natural degradation of the oil due to
the lack of sunlight (needed for photolysis) and the much colder temperatures (needed
for bacterial decomposition of the oil) would be much slower (Margesin & Schinner,
1 For the purpose of this paper near shore drilling is defined as drilling in shallow water (<100ft) and
offshore drilling as drilling in deep water (>100ft). (Masterson et al., 1991)

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1999). Therefore, an oil spill in a polar region would persist for much longer in the
environment compared to an oil spill in a tropical region (ibid).
Finally, the lack of infrastructure, oil spill cleaning equipment and vast distances from
ports and major population centers make the response to an oil spill an extremely
challenging task in the Arctic (The Pew Environment Group, 2010). These three factors
make a legal regime for environmental protection which should be a part of a strong
governance regime in the Arctic a crucial prerequisite for managing the risk of oil spills
as well as improving oil spill response preparedness.
The current Arctic legal regime for environmental protection is strongly based on the
national laws of the Arctic states. All land areas in the Arctic region fall under the
sovereignty of one of the Arctic states and so national laws contain the primary legal
controls on the environment. However, the Arctic is riddled with sovereignty disputes
and the maritime borders of countries in the Arctic are still in flux and not clearly
delineated. Moreover, Arctic countries are currently in a scramble to legally extend their
continental shelves and secure a larger piece of the lucrative Arctic resources (Cohen,
2010; Riddell-Dixon, 2008). In light of this, regional and international cooperation and
agreements are increasingly important for a stronger legal regime for environmental
protection in the Arctic. Therefore, the current legal regime is characterized by a mixture
of national laws, soft-law provisions, international conventions and bilateral/multilateral
agreements (Berkman & Young, 2009; Casper, 2009).
The current Arctic legal regime for environmental protection is itself a component of a
much wider Arctic governance regime. The wider Arctic governance regime does not
only concern itself with environmental protection and oil and gas development but also

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shipping, tourism, search and rescue, militarization, ship design and navigation, fishing,
biodiversity etc. Therefore, a discussion on the Arctic governance regime and its
importance for the legal regime for environmental protection is of great significance.
Governance, as defined by Young (2012), is: “a social function involving the
establishment and administration of assemblages of rights, rules, and decision-making
procedures intended to steer sociological systems towards pathways that are
collectively desirable and away from pathways that are undesirable”. The above-
mentioned increase in interest in the Arctic is exerting a great pressure on the Arctic
governance regime (Anderson, 2009; Stokke & Honneland, 2006; Young, 2012).
The increased pressure on the current governance regime of the Arctic leads to the
questions: (1) what is the current legal regime for environmental protection related to oil
and gas development in the Arctic and (2) what Arctic governance regime would be best
suited to the unique Arctic socioecological environment and fosters a strong legal
regime for environmental protection?
To answer the first research question in Section 2 the paper provides an introduction
and an overview of the current Arctic legal regime for environmental protection by
outlining the specific regional and international environmental laws and regulations
related to oil and gas development (if applicable specifically for the Arctic Ocean) in
each component of the legal regime.
The main contribution of this paper is the analysis of the second research question. The
analysis proceeds into a more overarching discussion on the current state of Arctic
governance and how the legal regime for environmental protection can benefit from
further integration or fragmentation of the Arctic governance regime.

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The state of integration or fragmentation of the present Arctic governance regime as
well as a similar discussion for a future Arctic regime can be done within the framework
of the integration-fragmentation spectrum for governance regimes as outlined by
Keohane and Victor (2011). First, in Section 3.1 the paper discusses the current status-
quo that the Arctic coastal states2 want to maintain. Second, in Sections 3.2 and 3.3
other possible positions of the Arctic regime on the integration-fragmentation spectrum
are investigated for their suitability to the unique Arctic socioecological environment.
The criteria for judging the suitability of a particular position of the Arctic regime on the
integration-fragmentation spectrum are also provided by Keohane and Victor (2011).
In the following section, an introduction to the legal regime for environmental protection
of the current Arctic governance regime will be presented with a specific focus on
offshore oil developments. A more general characterization and discussion of the
current overarching Arctic governance regime will be presented in Sections 3.1 and 3.3.
2. Legal regime for environmental protection
The current Arctic legal regime for environmental protection consists of a series of soft-
law regional and international agreements with all land areas falling under the
(un)contested sovereignty of one of the Arctic states and so national laws contain the
primary legal controls on the environment. However, regional cooperation initiatives and
international environmental laws and principles play an increasing role in the Arctic legal
regime due to the increasing realization that maritime pollution transcends national
2 Arctic states, as defined by countries lying in the Arctic Area: the United States, the Russian Federation
(Russia), Norway, Denmark, Finland, Iceland, Canada, Sweden
Arctic coastal states, as defined by Arctic states with a coast to the Arctic Ocean: the United States,
Russia, Norway, Denmark, Canada

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borders, the increasing sovereignty disputes in the Arctic and the importance or regional
and international cooperation and response for oil spills in the Arctic.
2.1 Regional regime for oil and gas exploration and exploitation
The Arctic Council, a high-level intergovernmental forum, was established to coordinate
the activities of states in the Arctic region (Arctic Council, 1996). The two Arctic Council
working groups most relevant to oil pollution are PAME: Protection of the Arctic Marine
Environment and EPPR: Emergency prevention, preparedness and response) (Arctic
Council, 1996). Many soft-law instruments in the form of guidelines and policy
recommendations came out of the EPPR within the framework of the Arctic Council,
such as the “Field guide for oil spill response in Arctic waters”(Arctic Council, 1998) and
the “Arctic Offshore Oil and Gas Guidelines”(Arctic Council, 2009). However, both these
documents as well as other related documents are not legally binding and do not
require any commitments from Arctic countries (Casper, 2009; Koivurova, 2009).
However, recently a shift towards more hard-law based agreements can be noted in the
Arctic Council. In 2012, the “Agreement on Cooperation on Marine Oil Pollution
Preparedness and Response in the Arctic” was adopted (Arctic Council, 2012). This
Agreement is not only important for setting a legal precedent (only the second hard law
instrument adopted by the Arctic Council) but it specifically deals with oil and gas
developments in the Arctic. This highly expected and much heralded agreement by
environmentalists, governments and the oil industry was criticized by Ben Ayliffe, head
of the Arctic Oil campaign for Greenpeace International, as incredibly vague and failing
to hold oil companies liable for the impact of their mistakes (Greenpeace International,
2013).

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Some scholars see the present and the future of the Arctic Council in the overall
governance regime of the Arctic as only one of awareness raising and cooperation and
coordination fostering (Koivurova, 2005, 2009; Young, 2012). A different approach
would be to move the Council towards a more hard-law regime and give the Council
more power to issue directives and regulations much like the OSPAR Commission. A
future with an Arctic regime which encompasses a hard-law Arctic Council is discussed
in Section 2.2.2 on the OSPAR Commission.
In conclusion, in spite of the lack of regulatory authority, the Arctic Council has achieved
considerable success in generating policy-relevant knowledge about the Arctic and
bringing Arctic issues to light. The transition in perceiving the Arctic from a “frozen
desert” to an “Arctic in change” is mostly thanks to the Arctic Council and its products
like the ”Arctic Climate Impact Assessment” which highlighted the impacts of climate
change on the Arctic (“ACIA,” 2004; Koivurova, 2009). However, while it is important to
acknowledge the importance of the Arctic Council and other soft-law instruments in
raising knowledge and awareness about Artic issues, especially oil and gas
developments, it is also worth noting that these same instruments are not nearly enough
to provide for proper monitoring and regulation of oil and gas exploration and
exploitation. (Berkman & Young, 2009; Kao et al., 2012; Koivurova, 2009; Young,
2012).
2.2 International regimes and oil and gas exploration and exploitation
The Arctic, in addition to the above mentioned soft-law regional provisions, is already
subject to a number of international legal regimes relevant for oil and gas development.
The Arctic is governed by a myriad of overlapping and overarching international

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agreements with different levels of legal enforceability and country commitment.
Therefore, in this section the relevant international agreements and their provisions for
protecting and monitoring the marine environment with relation to oil and gas
exploration in the Arctic will be summarized and analyzed.
2.2.1 United Nations Convention on Law of the Sea
The most encompassing and comprehensive international framework agreement
governing the world’s oceans is UNCLOS, which was the result of the third United
Nations Conference on the Law of the Sea (1973-1982) (“UNCLOS,” 1982). There are
166 parties to UNCLOS and of the five Arctic coastal states only the United States has
not acceded to the Convention (“Chronological lists of ratifications …,” 2013). The
Convention’s importance for oil and gas developments in the Arctic is two-fold. First, it
provides a legal framework for most uses of the ocean, including oil and gas exploration
and exploitation. Second, it is a regime that provides a framework for comprehensive
regulation to prevent and control marine pollution (“UNCLOS” 1982).
2.2.1.1 Legal Framework for Resource Use
In terms of providing a legal framework for most uses of the ocean, the Convention is
organized according to maritime zones (also called regimes) and it details the rights and
obligations of states with respect to the exploitation of these resources within each
maritime regime (coastal waters, territorial sea, contiguous zone, exclusive economic
zone (EEZ) and the continental shelf zone; See Figure 1).
For a detailed discussion on UNCLOS and the different regimes and the corresponding
rights of states to the resources in the regimes see Appendix 1. What is relevant for the
purpose of this paper is that under the continental shelf regime (which can extended

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beyond the EEZ of a country but only up to 350nm from its coast) sedentary minerals,
including oil and gas, are under the exclusive control of the coastal state. However,
beyond the 200nm EEZ some additional provisions for oil and gas development are
present (The Provisions are outlined in Appendix 1).
2.2.1.2 Protection of the Marine Environment
The second important aspect of UNCLOS is its importance as a legal framework for
prevention and regulation of pollution in the marine environment. Multiple aspects of
UNCLOS are unique and worth mentioning in terms of the instruments it provides for oil
and gas pollution in the marine environment.
First, UNCLOS is the first international treaty to codify international maritime law. The
only law governing the world’s oceans before UNCLOS was a loose customary
international maritime law regime that had no clear provisions for environmental
protection and was not legally binding for any country (Boyle, 1985).
Second, UNCLOS is a major departure from the previous practices in customary
international maritime law. Before UNCLOS the responsibility of preventing pollution
from vessels was solely with the flag state and a costal state’s ability to provide and
enforce environmental protection laws outside of its territorial seas and ports was
severely limited. UNCLOS distributes this responsibility more equally between the flag
state and the coastal state and gives a legal mandate to the coastal state to provide and
enforce environmental protection laws and regulations for the coastal state’s EEZ and
Continental shelf regime (Boyle, 1985).
Third, Part XII of UNCLOS places in states a basic duty to protect and preserve the
marine environment (Articles 192, "UNCLOS” 1982) as well as an obligation to take all

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measures necessary to prevent, reduce and control marine pollution and to ensure that
activities under their jurisdiction or control do not cause damage to other states or
otherwise spread beyond the seas where they exercise their rights (Article 194,
"UNCLOS” 1982). The Convention also places an obligation with states to adopt laws
and regulations and to establish international, global and regional rules and standards
for pollution from a variety of sources in order to meet the primary obligation of Article
192 (Articles 207-212, "UNCLOS” 1982).
In conclusion, UNLCOS’s has a pivotal importance as a framework agreement that
regulates the rights and obligations of states both in terms of resource ownership and in
terms of a framework for placing the obligation to protect the marine environment on
states. UNCLOS is and will be a crucial component of the Arctic legal regime for
environmental protection and an Arctic governance regime.
2.2.2 OSPAR
The Convention for the Protection of the Marine Environment of the North-East Atlantic
(OSPAR) is a legislative instrument regulating international cooperation on
environmental protection in the north-east Atlantic. OSPAR seeks “to prevent and
eliminate marine pollution and to achieve sustainable management of the maritime
area” ("OSPAR" 1992). Of the Arctic states, only Iceland, Denmark and Norway are
parties to the Convention (OSPAR, 2014). OSPAR only covers a small part of the
Arctic, however, it is one of the most comprehensive and legally binding mechanisms
for controlling oil pollution in parts of the Arctic (Casper, 2009). Therefore, it deserves a
more detailed look as it can give a good starting point and a model for a future
environmental protection framework for the Arctic.

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Most notable is that OSPAR has a regional body in charge of implementation composed
of fifteen representatives from the Contracting Parties (plus the EU Commission) with its
own Secretariat– the OSPAR Commission. OSPAR gives the OSPAR Commission the
task of drawing up “…programs and measures for the prevention and elimination of
pollution and for the control of activities which may, directly or indirectly, adversely affect
the maritime area…” (Article 10(c), "OSPAR,” 1992; Casper, 2009). The Commission is
empowered to adopt binding decisions, recommendations, programs, and measure for
the prevention of pollution by controlling activities which may adversely affect the
marine environment (Articles 10(3) and 13, "OSPAR” 1994; Casper, 2009). However,
the legal enforceability of OSPAR is undermined by Articles 10(2-3) which state that
decisions by the OSPAR Commission are only legally binding for Contracting Parties
that voted for the decision and not notified the Commission that they are unable to
accept the decision. States that have voted against the decision can notify the
Commission of their inability to accept the decision(Articles 10(2-3),"OSPAR” 1992;
Casper, 2009).
One of the approaches discussed for enhancing the role of the Arctic Council in Section
2.1. is to move the Arctic Council towards a more hard-law basis. As previously
discussed, with the recent adoption of several hard-law agreements between the parties
in the Arctic Council, a certain willingness for a more hard-law based Arctic Council can
be seen within the Arctic states (Kao et al., 2012).
A more hard-law based Arctic Council is not difficult to envision in the future if one takes
a look at current developments, however, as Koivurova (2009) argue “there is not much
willingness in the council to make any but simple cosmetic changes to its structure or

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working methods”. Even if the Arctic Council adopts a more OSPAR Commission-like
operation, there is no reason to think that the Arctic would benefit from such a move.
Even in the case of the OSPAR Commission, the directives and regulative it issues are
only valid for states that voted for them. Therefore, using up political capital and time to
negotiate a more hard-law approach in the dealings of the Arctic Council might prove
beneficial only if the Arctic Council’s mandate and legal firepower go far beyond what
the OSPAR Commission possess at the moment.
To summarize, OSPAR’s importance for the Artic legal regime for environmental
protection and a governance regime for the Arctic, is three-fold: (1) it provides a general
obligation for states to protect the marine environment but goes a step further to
establish an implementation body – the OSPAR Commission; (2) it can issue legally
binding recommendations for national policy and programs to regulate oil and gas
pollution from offshore activities, albeit to a somewhat limited extent; and (3) it can be
used as a starting model for a future hard-law approach in the operation of the Arctic
Council.
2.2.3 MARPOL 73/78
The International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL
73/78) has proven very effective in reducing vessel-source oil pollution with its specific
technical provisions and dedicated enforcement regime, therefore, it deserves a
detailed look in this paper.
MARPOL 73/78 seeks to achieve nothing less than: “… the complete elimination of
intentional pollution of the marine environment by oil and other harmful substances…”
(Preface, MARPOL, 1973). To this end MARPOL pursues a dual approach: it sets down

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specific regulations for ships to observe but it also provides a regime to enforce these
regulations. These regulations address all aspects of vessel-source pollution and are
contained within five Annexes, with Annex I containing all the regulations pertaining to
vessel oil pollution.
MARPOL 73/78 Annex I approaches vessel-source pollution from two directions. First, it
seeks to regulate the ship board operations which generate pollution like discharging
ballast water or other wastes. Second, it seeks to reduce vessel pollution by setting
specific designs or configurations of a ship’s design so that it eliminates or minimizes oil
pollution from vessel operation or vessel damage or loss (Griffin, 1993; Mitchell, 1994).
MARPOL 73/78 also provides an enforcement regime and its Parties may enforce the
convention in three ways: through ship inspection to ensure vessels meet minimum
technical standards, by monitoring ship compliance with discharge standards, and by
punishing ships that violate the standards (Griffin, 1993).
MARPOL’s approach seems to have been vital and very successful in reducing vessel-
source pollution, as oil pollution dropped by 60% in the 1980s, and even more
impressive is the fact that in the period of 1973-1990 tanker operational pollution
dropped by 85% (Griffin, 1993). Under MARPOL 73/78: “Ship means a vessel of any
type whatsoever operating in the marine environment and includes hydrofoil boats, air-
cushion vehicles, submersibles, floating craft and fixed or floating platforms”(Article 2(4),
MARPOL, 1973). This clearly states that offshore oil and gas platforms are regarded as
ships or vessels under MARPOL 73/38 and are thus subject to its regulations and
enforcement regime. The Arctic Council has referred to MARPOL regulations and

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standards in its Directives in an effort to regulate pollution in the Arctic Ocean (Arctic
Council, 2009).
One of the main areas where MARPOL can improve is to amend the Convention to give
the Arctic Ocean a “special area” status under MARPOL which would extend special
and more stringent regulations for oil pollution in the area (Casper, 2009). Special area
status has already been awarded to many oil-spill prone regions in the world like the
Mediterranean Sea, the Baltic Sea, the Red Sea etc. (Anex I, Regualtion 10 (1)a,
MARPOL, 1973) For example, this would prohibit any discharge from rigs without
dilution exceeding 15 parts per million and would enable the Arctic coastal states to
categorize any discharge exceeding this as an oil spill (Anex I, Regualtion 9, MARPOL,
1973). Thus, MARPOL could provide added protection from the dangers of oil and gas
activities in the Arctic.
In conclusion, MARPOL 73/78 has proven very effective in reducing vessel-source oil
pollution with its technical provisions and enforcement regime and is a crucial part of the
legal regime for environmental protection in the Arctic. Moreover, assigning special area
status to the Arctic sea could provide extra protection for the Arctic from oil and gas
developments.
2.2.4 OPRC
The 1990 International Convention on Oil Pollution Preparedness, Response and Co-
operation (OPRC) is probably the most detailed and specific Convention attempting to
regulate oil and gas pollution due to oil exploration and exploitation as well as oil
transportation (Moller & Santner, 1997; IMO, 1991). All of the Arctic states are Parties to

22. 22
this Convention3. MARPOL’s approach, as explained in the previous section, dealt more
with requirements for shipboard operations as well as the technical requirements for
vessel design in order to minimize vessel-source oil pollution. Therefore, the main
difference between MARPOL and OPRC is that OPRC deals more with how states
should act in the case of an oil spill and how prepared they should be for oil spill clean-
up and environmental remediation (T. Moller & Santner, 1997).
The main obligation of the Parties under OPRC is “...to prepare for and respond to oil
pollution incidents posing a threat to the marine environment or to the coastline.”(Article
1, IMO 1991). The central part of the Convention is the requirement of each Party to
require that ships (over 400 GT) registered under its flag, as well as oil-handling
facilities and offshore installations, have oil pollution emergency plans on board (Article
3, IMO, 1991). The Convention also has provisions for pollution reporting by oil polluters
and the appropriate actions to be taken by the coastal state upon receipt of a pollution
report (Article 4 and 5, IMO, 1991). Another important part of the Convention is that it
mandates each Party to devise national and regional systems for preparedness. For a
short description of these systems and the required contents of national contingency
plans for oil spill response please see Appendix 2.
The Convention proceeds to require of Parties, inter alia, international cooperation for
pollution responses, research and development, technical cooperation, promotion of
bilateral and multilateral cooperation and institutional arrangements (Articles 7-12, IMO,
1991). The main outcome of a country signing the OPRC is a national implementation of
its provisions which would result in the Arctic states implementing their own national
3 For a full list of Parties and their status see the website of the Australian Maritime Safety Authority.
Accessed on 17.03.2014 at https://imo.amsa.gov.au/public/parties/oprc90.html

23. 23
policies to establish National Contingency Plan for Oil Pollution Preparedness and
Response.
However, in reality, national implementation of the OPRC provisions and preparedness
activity is often compromised in countries with more pressing demands, due to scarce
financial, human and institutional resources (Moller et al., 2003). Therefore, around the
world there is a very unequal distribution of oil spill response preparedness both among
nations and industry. Oil-spill combating equipment is scarce and needs to be moved
thousands of kilometers in some cases to reach an oil-spilled region (See T. Moller &
Santner (1997) p.20 for a map displaying the locations of main equipment stockpiles
available for international use).
However, scarcity of oil-spill combating equipment is not the only problem: availability of
infrastructure and in accessibility of a region might limit the ability any oil-spill combating
equipment to be deployed to a region (The Pew Environment Group, 2010). For
example, a study commissioned by the Pew Environment Group found that an oil spill
from an offshore rig in the U.S Arctic would be extremely difficult to tackle due to the
physical environment, the biological environment, and the human environment (remote
and limited access, limited infrastructure and small populations) (p11, Table 2-1, The
Pew Environment Group, 2010).
The discussion here on the regional and international regimes governing the Arctic and
their relevant environmental protection and prevention mechanisms for dealing with
petroleum exploration and exploitation is hardly exhaustive. In Appendix 3, a list
compiled by the IMO and expanded by the author, tries to pinpoint most conventions

24. 24
and regimes relating to marine oil pollution in general and specifically for the Arctic
region.
This section has introduced and analyzed the most important components of the Arctic
legal regime for environmental protection from oil and gas exploration and exploitation.
However, the Arctic legal regime for environmental protection, irrespective of the
strengths and weaknesses of its individual components, is itself a component of a wider
Arctic governance regime. The Arctic governance regime does not only concern itself
with environmental protection and oil and gas development but also shipping, tourism,
search and rescue, militarization, ship design and navigation, fishing, biodiversity and
so forth. The following section discusses how integration and fragmentation of this
overall Arctic governance regime will influence the current legal regime for
environmental protection and its individual components follows.
3. The Future of Arctic Governance
In order to analyze governance systems designed for complex issue areas like the
Arctic the idea of an integration-fragmentation spectrum can be employed (Keohane &
Victor, 2011; Raustiala & Victor, 2004). On one side of the integration-fragmentation
spectrum lies a fully integrated system in which all issues relating to the spatially
defined area (i.e. the Arctic) are embedded in a common arrangement and linked
together. This case will be studied in Section 3.2 by comparing the Arctic with the
Antarctic region and its fully integrated governance regime. On the other side of the
spectrum is a fully fragmented arrangement, in which every issue is treated separately
and there are no direct links between the regimes dealing with individual issues. The
fully fragmented governance regime is not explicitly discussed in this paper due to

25. 25
space limitations, however, the current status-quo in the Arctic which is discussed in
Section 3.1 approaches closely the fully fragmented governance regime. Finally, what
lies in between these two extremes are myriad alternatives “…in which two or more
overlapping but non-hierarchical regimes are connected either through well-defined and
intentional links or through the development of informal practices that allow for mutual
adjustments in the interests of avoiding or minimizing interferences among the individual
elements of the complex” (Young, 2011). This gives rise to an intertwining governance
structure or network of regimes operating in a broad and complex issue area which is
discussed in Section 3.3 (Underdal & Young, 2004). Throughout the discussion we keep
in mind the criteria by Keohane and Victor (2011) that because of the rapid changes in
the Arctic, an Arctic governance regime needs to have “flexibility across issues” and
“adaptability over time” in order to successfully meet the challenges of the unique Arctic
socioecological environment.
3.1 Status-quo
The current state of the Arctic governance regime on the integration-fragmentation
spectrum lies somewhere between a completely incongruent collection of arrangements
and a complex regime, at present the Arctic states are interested in preserving the
status-quo. While not completely incongruent the individual regimes governing the
Arctic at present are not properly interlinked and sometimes are overlapping on many
issues (Young, 2011). UNCLOS and initiatives like the Arctic Council and the OSPAR
Commission move the Arctic regime a little bit towards integration of the issue areas in
the Arctic but that is not nearly enough to call the Arctic an integrated system. Most of
the integration currently present in the Arctic is actually in terms of Arctic search and

26. 26
rescue, however, environmental protection and oil and gas development are currently
issues that the Arctic states especially want to keep outside of any potential integration
of the Arctic regime (The Ilulissat Declaration, 2008). What also adds to the current
fragmentation of the current Arctic regime is that most of the Arctic Ocean is under the
sovereign rule of nation states which prioritizes national law over any soft-law
international arrangements.
The reluctance of the Arctic states to move the Arctic governance regime in any other
direction except its current fragmented state was illustrated on May 28th, 2008 when the
Arctic coastal states met in Ilulissat, Greenland, outside of the framework of the Arctic
Council (thus not including all the Arctic states and the indigenous populations
represented in the Council). They made clear their intention to preserve the current
status of the Arctic governance regime by adopting the Illuissat Declaration which
claims that there already exists a comprehensive international legal framework
governing the Arctic Ocean and the Arctic Coastal States, therefore, they see “no need
to develop a new comprehensive international legal regime to govern the Arctic Ocean”
(Casper, 2009; The Ilulissat Declaration, 2008).
The comprehensive international legal framework the Ilulissat Declaration is referring to
is the Law of the Sea which is phrased as the Law of the Sea, and not UNCLOS due to
the United States not ratifying the Convention (“Chronological lists of ratifications…,”
2013).
In terms of the criteria outlined by Keohane and Victor (2011), an Arctic governance
regime solely based on UNLCOS is indeed “flexible across issues” as the Convention is
broad enough to provide for a serviceable framework for addressing most issues

27. 27
relating to the Arctic Ocean (Young, 2011). On the other hand, UNCLOS cannot easily
adapt to changing environmental and geopolitical conditions in an environment like the
Arctic. The environmental protection provisions in UNCLOS are fixed and amending
UNCLOS to meet the ever-changing demands of the Arctic environment is costly and
time consuming. Therefore, its unsuitable for governance in turbulent and changing
times which means it is not “adaptable over time” (Young, 2012). Moreover, UNCLOS
only provides a general obligation with states to protect the environment and refers
heavily to international standards and regulations as the minimum requirements for
environmental protection. Consequently, UNCLOS places an obligation with nations to
set up these regulatory arrangements for environmental protection (Young, 2011).
As a general framework agreement UNCLOS is “flexible over issues”; however, it needs
the associated regulatory arrangements set up by other international conventions or
regional bodies to give UNCLOS substance when it comes to environmental protection.
If the status-quo is not a good way forward, then what is? One way forward is a fully
integrated institutional arrangement, vis-à-vis the Antarctic Treaty System, as opposed
to the highly fragmented collections of arrangements that characterize the current
status-quo governance approach of the Arctic states.
3.2 Fully integrated institutional arrangement
One of the most commonly drawn parallels for governing the Arctic Ocean is the one
with the Antarctic. The ATS is an integrated governance system which deals with many
issues concerning the Antarctic, which places it on the opposite side of the mostly
fragmented Arctic governance regime on the integration-fragmentation spectrum. The
success of the ATS with its “hard-law” approach to environmental protection and

28. 28
inclusiveness of the international community in its dealings has compelled many parties
to propose a similar arrangement for the Arctic (Borgerson, 2008; Watson, 2008;
Young, 2011). The similarities between these two regions are limited to the fact they
both share the similar harsh environmental conditions and simple ecosystems which
contain only a few key species and are thus much more vulnerable to human-induced
pollution than those of temperate regions. However, when it comes to comparing the
governance regimes of these two polar regimes stark differences can be observed
(Koivurova, 2005):
 When the ATS comes into force in 1959 all sovereignty and territorial claims to
the Antarctic were frozen. Therefore, no state has sovereignty or territorial right
to the Antarctic for the duration of the Treaty. In a stark contrast to this, in the
Arctic all continental regions and islands are under clear sovereignty of the Arctic
states. Moreover, under UNCLOS they also have rights to the mineral resources
in their EEZ and Continental shelf, making only the middle of the Arctic a high
seas regime.
 International cooperation in the Arctic is a rather new occurrence compared to
the 54 years of international cooperation under the ATS.
 The Arctic has a permanent human habitation and is home to indigenous people
unlike the Antarctic. Therefore, the Arctic has to take into account the needs of its
indigenous people and balance human needs with environmental protection.
 The prospect of exploitation of mineral resources in the Antarctic is very small
and technologically and economically not feasible at the moment or in the near

29. 29
future. In contrast, due to climate change mineral resources are becoming more
accessible and interest in developing Arctic mineral resources is very high.
Because of these fundamental differences in the polar regimes environmental protection
and oil and gas development has been approached differently. The 1991 Madrid
Protocol on Environmental Protection4 to the ATS outright forbids all mining activities
indefinitely (ATS, 1991). In the absence of sovereign rule in the Antarctic all
environmental protection provisions come from international law. In the Arctic, the
situation is the reverse in that national environmental laws apply to most of the region,
except for the international areas.
The differences between the two Polar Regions in terms of sovereignty, length of
international cooperation, the presence of indigenous peoples and permanent human
settlements, and most importantly accessibility to mineral resources makes a fully
integrated institutional arrangement for the Arctic Ocean a very unlikely scenario
(Koivurova, 2005, 2008; Young, 2011). A proposal from the International Conservation
Union (IUCN) proposed an approach for formalizing international cooperation for
environmental protection in the Arctic based on the 1991 Madrid Protocol (Nowlan,
2001). On the basis of this proposal, the IUCN convened an expert meeting in Ottawa in
2004 which found that this approach is unrealistic in the Arctic for many reasons, the
main one being the different sovereignty status of the Arctic compared to the Antarctic
(Koivurova, 2005).
A final argument why an Arctic Treaty is unlikely to happen in the near future is the 2009
“Ilulissat Declaration of the five Arctic coastal states which clearly states that a new
4 Full text available at: http://www.ats.aq/documents/recatt/Att006_e.pdf. Accessed on 09.04.2014

30. 30
international legal framework for the Arctic is not needed, basically putting to rest any
ideas of an ATS-type of Treaty for the Arctic (The Ilulissat Declaration, 2008).
Another way forward is to work towards the development of a coherent regime complex
by strengthening the current institutions and Conventions governing the Arctic Ocean
(Casper, 2009; Young, 2011, 2012).
3.3 Complex Regime
A complex regime can be thought of as “an array of partially overlapping and
nonhierarchical institutions governing a particular issue-area” (Raustiala & Victor, 2004)
or, in other words, a network of distinct regime elements that operate simultaneously in
the broad issue area of Arctic governance (Underdal & Young, 2004). Such a complex
would be the middle ground between a completely incongruent collection of
arrangements on one side and a fully integrated institutional arrangement at the other
(Keohane & Victor, 2011). The complex regime “would encompass a number of distinct
elements dealing with relatively specific issues, operating under different auspices, and
encompassing overlapping but not identical sets of members” (Young, 2012).
Such a complex in contrast to a completely integrated system, is able to establish
distinct regulatory provisions and decision-making procedures that are well-suited to the
character of separable issues. The environmental legal regime discussed in Section 2
can be one of the separable issues governed by a regime complex in the Arctic (Young,
2011). There are two main reasons in terms of the criteria discussed by Keohane and
Victor (2011) why a regime complex is a rather attractive approach to governance in the
Arctic:

31. 31
 The Arctic is a changing environment with new issues emerging faster than an
integrated regime could address in a timely and cost-effective manner, hence it
would be “adaptable over time”.
 The geopolitical tension due to the abundance of natural resources in the region
and unresolved territorial issues also contributes to an environment that is more
suited for a complex regime system. “The system will be able to adapt on a
piecemeal basis, adjusting the provisions of individual regimes or elements to
handle changing circumstances relating to specific issues without raising
questions about the viability of a larger and more encompassing governance
system” (Young, 2011). Therefore, the system will be “flexible across issues”.
To sum up, in this section a discussion on the current and future state of integration and
fragmentation of the Arctic governance regime was presented. In light of current
literature available on this topic, it can be concluded that a governance system based
on a complex regime is best suited and the most realistic solution to address the issues
in the Arctic. Environmental protection and oil and gas development, i.e. the legal
regime for environmental protection could be one of these separable issues. The legal
regime for environmental protection in the Arctic would benefit from a complex regime
because (1) it will be independent of other hot issues in the Arctic, (2) it can more easily
adapt to the changing socioecological conditions in the Arctic, and finally (3) it matches
the current political sentiment of the Arctic states (desire to maintain the status-quo).
4. Conclusion
The Arctic region is undergoing severe environmental transformation, opening it up to
increased economic and political activity. Increased activity in the region places

32. 32
profound pressure on the current legal regime for environmental protection and raises
questions about the future direction of the Arctic governance. A strong environmental
legal regime and a comprehensive Arctic governance regime are especially crucial for
future off-shore oil and gas development in the extremely challenging and oil-spill prone
Arctic environment. Inability to reach oil spills for physical clean up and the much lower
natural biodegradation rate of oil spills in colder waters make oil spill response in the
Arctic a daunting task which cannot be met with current technology.
The current legal regime for environmental protection and oil and gas development is a
complex mixture of unequally suitable and legally enforceable national and international
laws. However, this paper finds that there is room for further strengthening of the
components of the current regime but little political willingness to do so.
The overarching Arctic governance regime which among other issues also deals with
environmental protection is crucial for the future of environmental protection in the Arctic
Region. The different shapes the Arctic governance regime can take have a profound
influence on the legal regime for environmental protection. This paper presents an
analysis based on currently available literature of the different states of integration-
fragmentation of the Arctic governance regime: a scenario of complete integration, a
scenario of complete (or semi-)fragmentation, and a scenario of a regime complex. This
paper finds that the legal regime for environmental protection in the Arctic would benefit
most from a regime complex because (1) it will be independent of other hot issues in the
Arctic, (2) it can more easily adapt to the changing socioecological conditions in the
Arctic, and finally (3) it matches the current political sentiment of the Arctic states
(desire to maintain the status-quo).

33. 33
The findings of this paper are limited by the number of scholars analyzing this issue in
the past and the very recent introduction of criteria for characterizing the integration-
fragmentation of governance regimes. However, increased interest in the Arctic will
certainly increase the scholarly debate on environmental protection in the Arctic and the
influence of future models of Arctic governance on environmental protection in this
fragile, hostile, and previously untouched region of our planet.

34. 34
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Appendix 1
UNCLOS
A state’s rights and obligations to the resources in its continental shelf differ within its
200-nm zone (measured from the baselines from which the breath of the territorial sea
is measured) and beyond this zone.
Within the 200-nm zone the continental shelf regime and the EEZ coexist. A state must
claim a 200-nm EEZ, but even if it does not it still has rights over its continental shelf.
The EEZ only refers to the natural resources in the waters superjacent to the seabed
and its subsoil in the 200-nm zone (“Article 56, UNCLOS” 1982). Even though oil and
gas resources are located in the seabed, the oil and gas platforms are located in the
waters superjacent to the sea bed and if these waters are within the 200-nm zone they
fall under the EEZ regime and are subject to the exclusive jurisdiction of the coastal
state with regard to customs, fiscal, health, safety and immigration laws and regulations
(“Article 60, UNCLOS,” 1982). However, what actually gives a state exclusive rights
over resources in the seabed and its subsoil - both in the EEZ and in some cases
beyond it - is outlined in the continental shelf regime (“Article 76, UNCLOS” 1982).
Beyond the 200-nm zone only the continental shelf regime applies. Under the
continental shelf regime sedentary minerals, including oil and gas, remain under the
exclusive control of the coastal state; however, additional provisions for oil and gas
extraction and exploration exist. The continental shelf regime may extend beyond the
EEZ zone in which case the rights of the Coastal state over the continental shelf do not
affect the legal status of the superjacent waters (Article 78, "UNCLOS” 1982). This
means that oil and gas platforms of states exploring and exploiting their sedentary

40. 40
minerals cannot interfere with the rights of free passage and navigation in the seas
above their continental shelf beyond the 200-nm zone. In terms of the legal jurisdiction
over gas and oil platforms Article 60 which regulates artificial islands, installations and
structures in the EEZ applies mutatis mutandis to structures on the continental shelf
(“Article 80, UNCLOS” 1982).

41. 41
Appendix 2
OPRC
Article 6 (IMO, 1991) mandates that National Contingency Plans for Oil Pollution
Preparedness and Response, inter alia, include:
 designating competent national authorities with the responsibility of oil pollution
preparedness and response,
 designating contact points for the receipt and transmission of oil pollution reports,
 devising national contingency plans for preparedness and response which clearly
outline the organizational relationship of the public and private bodies involved,
 a minimum resource of oil spill combating equipment (in cooperation with the oil
and shipping industry) and a procedure for coordinated mobilization and
deployment of oil spill combating resources,
 training and exercise program

42. 42
Appendix 3
List of Treaties pertaining to the Arctic from the IMO5.
 International Convention for the Prevention of Pollution of the Sea by Oil, 1954
(OILPOL). 1981 Edition. IMO.
 Supplement Relating to the International Convention for the Prevention of
Pollution of the Sea by Oil, 1954. 1981 Edition. IMO.
 International Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Casualties (Intervention), 1969. 1997 Edition. IMO.
 International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC
1969). 1977 Edition. IMO.
 International Conference on Salvage, 1989. 1989 Edition. IMO.
 International Convention on Liability and Compensation for Damage in
Connection with the Carriage of Hazardous and Noxious Substances by Sea,
1996 (HNS Convention). 1996 Edition. IMO.
 International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001.
2004 Edition. IMO. MARPOL. Consolidated Edition, 2011. IMO.
 International Convention on Oil Pollution Preparedness, Response and Co-
Operation, 1990 (OPRC, 1990). 1991 Edition. IMO.
5 Retrieved from the International Maritime organization website on 27.04.2014 from
http://www.imo.org/OurWork/Environment/PollutionResponse/Inventory%20of%20information/Pages/Inter
national-Conventions,-Protocols-and-Codes.aspx

43. 43
 Protocol on Preparedness, Response and Co-Operation to Pollution Incidents by
Hazardous and Noxious Substances, 2000 (OPRC-HNS PROTOCOL 2000).
2002 Edition. IMO.
 International Maritime Dangerous Goods Code (IMDG Code). 2010 Edition. IMO.
IMDG Code Supplement. 2010 Edition. IMO.
 International Maritime Solid Bulk Cargoes Code (IMSBC Code) and Supplement.
2012 Edition. IMO.
 International Code for the Construction and Equipment of Ships Carrying
Dangerous Chemicals in Bulk (IBC Code). 2007 Edition. IMO.
 Code for the Construction and Equipment of Ships Carrying Dangerous
Chemicals in Bulk (BCH Code). 2009 Edition. IMO.

44. 44
Figure 1
Figure 1. A figure depicting the different maritime regimes under UNLCOS. Source:
Australian Government: Australian Geosciences. Retrieved on 27.04.2014 from:
http://www.ga.gov.au/ausgeonews/ausgeonews200903/limits.jsp