LAW MANTRA

THINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 23216417)

International Environmental Cooperation through Arbitration: The Way Forward After the Arctic Sun Dispute

Abstract: The dispute in the Arctic region between some green peace activists and Russia has brought back to importance the issue of environmental protection and conservation, and a states responsibility to not only itself, but to other countries as well. The issue is still pending resolution, and is creating quite the international tension, what with the Russian Government being at loggerheads with the various other nations involved. This paper aims to show a couple of things. Firstly, there is a great need to protect the Arctic region as it is minerally rich and is home to a lot of biodiversity. Secondly, the paper hopes to show how to resolve environment related disputes that occur on such an international scale, by suggesting the use of Arbitration. Arbitration has been used before, quite successfully in the resolution of disputes such as the current one, and thus can, not only be applied to the Arctic Sun Dispute but also to future international environmental issues that crop up as well.

Key Words: International Arbitration, Climate Change, State Responsibility, Arctic Sun Issue, Environmental Disputes, Dispute Resolution, Environmental Impacts of Oil Drilling ________________________________________

Introduction The worlds desire for oil and gas has led to the exploration and development of fields in the remote corners of the earth. The importance of petroleum to developed economies for

conveyance, electrical generation and temperature control has lead to the supervision of these resources becoming matters of national and international security. However, development has proved controversial in areas where the natural environment is considered particularly valuable or vulnerably susceptible. The development of petroleum and oil fields in Arctic has always attracted a great deal of attention from environmental groups. The delay of Prudhoe Bay oil field in Alaska is a classic example of this. However sometimes due to high national need for resources and foreign exchange, the government decides to avoid environmental concerns and focuses on development, like the Russian central governments decision to develop gas fields on the Yamal Peninsula because of a national need for foreign exchange. This decision was made despite an expert commission report that raised serious environmental and indigenous rights concerns. Oil and gas development in Yamal Peninsula have degrading environmental capabilities also it being worlds biggest oil and gas reserve makes it incomparable. Whether to develop incipient fields in the Arctic, and under what conditions, has become a national and international issue of much concern. In both Russia and United States of America, the decision making related to the Arctic is either politically motivated or appears to be ad hoc or appears to be secretive for military reasons. For instance, the Soviet gas Development in 1970s and 1980s was a concrete effort to generate a gas bridge between the present utilization of oil to engender energy and nuclear and coal future. As argued by Gustafson that development of oil was necessary following many years in which the centrally planned economy needed expanding oil production to survive. Part II: A report on latest 'Russia and Greenpeace Arctic- 30' incidence I. The facts of the incident:

On Sept. 18th, Wednesday, a minuscule group of Green Peace International activists went on for a halcyon protest against the Gazpromprirazlomnaya Oil Platform, in the Pechora Sea off, the Russian coast. Two activists were detained and were held overnight by the Russian Coast Sentinel or guard Vessel. The ship was apprehended and detained and was bought to

Murmansk on Sept. 19th . This incident raised sundry concerns over the action taken by the Russian Regime, below given is a comprehensive yet brief discussion over the issues raised.

II.

Exclusive Economic Zone:

An EEZ is a 200-mile extension of coastal states right beyond the 12 nautical mile territorial sea . According to the Article 56 of UNCLOS , the coastal state has sovereign rights for the purpose of exploring and exploiting, installation of structures for the purpose of economic exploitation and protection and preservation of the marine environment. This was firmly established in the case of Libya v. Malta, 1985 . Article 60(2) provides that in the EEZ, the coastal state has jurisdiction to apply custom laws. In respect of installations and structures. The sovereign rights were limited by Article 58 of UNCLOS which lays down the rights and duties of other states in the EEZ wherein, the rights include freedom of navigation. In the instant case, Russia declared an EEZ in the Pechora Sea off. Inside this EEZ, there was worlds first Arctic oil drilling was carried on at Gazprom oil-drilling platform. The Arctic sunrise was within the EEZ but it stayed outside the 500-meters safety zone around the rig. The significant question is whether the Arctic Sunrise posed any threat to the structure? According to Russia, the Green Peace safety Pod in the ship resembles a bomb but looking at safety Pod , it was clearly designed to keep the activists warm measures 3 meters long by 2 meters wide, is brightly coloured, and heavily branded with Greenpeace logos . This possibly couldnt be bomb. Also the inflatable boats that were used to reach the oil platform could not pose any risk to the structure. Therefore, looking the facts of the case, The Arctic Sunrise did not pose any threat to the structure. It was exercising its freedom to navigate which one of the oldest International customary principle. In the instant case, the peaceful protestors were charged with the offence of Piracy. It is of much magnitude to determine which laws would be applicable i.e. Russian municipal law or the international Piracy law as enshrined in UNCLOS. Having said that, it is important to note that, Russia is a signatory to the UNCLOS. III. Conclusion:

The question of who has right to drill in the Arctic ocean is a very complex one, with Russia claiming its Shelf extending all the way to North Pole cannot be taken and leads to various conflicts among various power hungry countries. With Russia being very serious about its energy issue, they wouldnt even allow a simple thing as protest to disturb the Arctic Oil drilling, The Arctic environment been ecological fragile, it currently becomes impossible to fully clean up potential oil spills and that any increased drilling risks an environmental disaster. With more oil drilling projects like ExxonMobil, Eni, and Statoil lines up to come up very

soon, it is high time to take action before they harm the ecological paradise of Arctic beyond redemption. With Dutch Government initiating arbitration proceedings against Russia under UNCLOS under Article 285, 290(5) and 3, for the immediate realize of the crew, it will be a tough battle, but if won can become a land mark case in the history of International Law . Part III: Environmental Concerns in the Arctic & Resolution of these Concerns a.) Arctic Claims:

The Arctic region is one of the few undefined territories left. That is to say it has not yet been claimed by different nations, with the initial position being that the Arctic resources were not visibly apportioned between countries. Today however, the arctic zone is claimed by at least five countries: Russia, Norway, Denmark, Canada and the United States. What makes the situation worse is that they each have direct access to the Arctic Ocean. The differences in approach of these countries could very well lead to an escalation of the international tensions plaguing the world and there is a distinct possibility of the development of international conflicts of local/regional nature. Despite the longstanding presence of the Inuit people, States have clashed over sovereignty in and access to the Arctic Ocean. This problem will arise because of the grey area that exists on the extent of exploitation of resources by countries. According to international law, the length of the continental shelf of a maritime boundary is 200 nautical miles from the coast (the economic zone). Simultaneously, the UN Convention on the Law of the Sea provides for the a situation whereby if a country can demonstrate that the continental shelf of the Arctic Ocean is an extension of its continental platform, that portion of the Arctic shelf will be thought of as its territory. In the recent years, several countries have made major attempts to chalk out their respective portions of the Arctic region: Russia has had three major expeditions In 2007 the Arktika in the North Pole and

subsequently in 2010 the research vessel Akademik Federov and the atomic ice breaker Yamal were launched. Russia also claims that the Mendeleev Ridge and the Lomonsov Ridge are a part of its

territory.

At one point in 2006 Norway claimed the Lomonsov Ridge to be its land, but failed to

substantiate the same. Canada was at loggerheads with Russia over the Lomonsov Ridge, claiming it to be a

part of Canadian territory. areas. The USA claims that it is entitled to the seabed north of the Chukchi Plateau bordering China too is staking its claims by attempting to acquire 300sq kms into Icelands island

Alaska. b.) Ecological Impact of the Arctic Claims:

In recent years, scientists have become increasingly concerned over damage to the Arctic environment caused by petroleum, hydroelectric, mining, and other astronomically large scale development projects. Thinning of the ozone layer with the corresponding increase in the UVradiation is expected to have consequential effects on biological organisms in the region, which in turn, will promote further perturbation in the atmosphere. These negative effects of development are not necessarily limited to the borders of the country in which they originated. Indeed, the deleterious environmental impact of our global industrial economy has become sufficiently profound that social analysts are beginning to ask whether development strategies that cause such harm to the Arctic and sub-Arctic region should continue; and if not, what should replace them . The Arctic is warming proximately twice as rapidly as the rest of the globe, with average Arctic temperatures elevating at virtually twice the rate of the rest of the world in the past few decades, according to the final report of the Arctic Climate Impact Assessment, a four-year study conducted by hundreds of scientists. Average winter temperatures have incremented as much as 3-4C in the past 50 years in Alaska, Western Canada, and Eastern Russia; and the Arctic region is projected to warm a supplemental 4-7C by 2100. The average sea-frozen dihydrogen monoxide extent has decremented by 8% over the last 30 years, and the melting trend is expediting. Sea-frozen dihydrogen monoxide extent in tardy summer has declined even more, with a loss of between 15 and 20%. Arctic sea-frozen dihydrogen monoxide has substantially become 10-15% thinner overall, and some areas have shown reductions of up to 40%. The assessment projects that at least half the summer sea ices in the Arctic will melt by the cessation of this century, along with a

paramount portion of the Greenland Frozen dihydrogen monoxide Sheet. These vicissitudes threaten the survival of some arctic animal species such as polar bears, walrus, frozen dihydrogen monoxide-living seals and some marine birds and pose challenges to the health, food security and culture of indigenous people Apprehensive over the environment extends well beyond the policymaking community . In Russia during the 1980s extensive public discussion and protest followed new scientific report addressing the overwhelming negative ecological impact of industrial development on the land and peoples of Siberia, the fast east, and other regions of the former Soviet Union . Popular pressure was also influential in bringing about the cancellation of the large-scale hydroelectric project in the Chukchi autonomous okrug and postponement of the massive gas development of Yaman Peninsula. These problems are stimulating and extensive debates over wilderness preservation vs. the proposed exploration of petroleum deposits. In Canada, and in particularly region surrounding Hudson Bay, efforts to dramatically expand hydroelectric power projects are facing challenges from opposing parties who perceives such developments as highly detrimental to the flora and fauna to sub-Arctic region . Long history of land usurpation and environmental degradation has left these indigenous peoples population and their subsistence economies highly vulnerable to human rights abuse particularly sustainable loss of culture diversity and well as ecosystem integrity. In the recent effort to address these twin problems of environmental degradation and social inequity, the ministerial representatives of the eight Arctic rim countries sat down and discuss the need for an Arctic environmental protection strategy .

It must be acknowledged however, that although this initial effort multilateral cooperation produces a number of positive recommendations, including observer status for indigenous, non-governmental organisations and scientific monitoring of changing environmental conditions, the delegates were unwilling to address problems associated with the utilization of Arctics natural resources and the environmental effects of military activities . It appears therefore, that environmental threats to the northern ecosystem and its people continue to grow, competing economic and political interest, along with conflicting ideological and cultural outlooks seriously hamper additional multilateral activities . Government and industrial leaders promote the view that new technical knowledge will eventually overcome our ecological problem thereby enabling the continuation of economic

growth with fewer environmental penalties. But even a brief look at the past suggest that in many instances, the seeking of scientific breakthroughs rather than solving problems associated with the degrading environment actually distances from addressing those problems. While technological improvements are certainly to be encouraged, they appear not the offer a not a final solution to the problem of how best to develop Northern resources, thus the search for other alternatives continues to be important. In more culturally oriented rational for the sustainable utilization of the Arctic natural resources can be found in the statement of the indigenous groups such as the Inuit Circumpolar Conference. In their 1992 position paper outlining a comprehensive Arctic policy they stressed that Northern development must refer to more than economic growth. It must allow for and facilitate spiritual, social and cultural development. . This emphasis in the spiritual social and cultural, interjects a new human ecological perspective to environmental issues often lacking in other approaches associated with sustainability. But it still does not address the finiteness of Arctic resources. As the economists Robert Costanza 1991 has stated economic growth, which is an increase in quantity cannot indefinitely be sustained on a finite planet . He goes on to suggest that a distinction be between growth and development in which the latter represents an improvement in the quality of life without necessarily causing an increase in the quantity of resources consumed . This cultural approach provides a worthy challenge to the mainstream use of sustainable development in the Arctic and elsewhere. But for it to have any chance of success, it must also be viewed in relation to the second major problem referred to earlier: the formable unequal distribution of well drawn from the regions natural resource . Part IV: Arbitration: A successful tool to resolve International Environmental Disputes? Internationally, it is almost tradition where arbitration being used as a method to resolve environmental disputes is concerned. One of the earliest examples can be seen in 1893, where an international arbitration tribunal passed an arbitral award in the Pacific Fur Seal Arbitration. In the said case there was a dispute between the United Kingdom and the United States regarding the circumstances in which the United States - a coastal State could intrude upon the British fishing activities on the high seas. This placed the interests of conservation against that of economic development. In a much later case, an Arbitral Tribunal gave the award in the famous Trail Smelter arbitration, between the United States and Canada. This case dealt with the transboundary

pollution being caused by sulphur deposits, which were being emitted from Canada onto United States territory. Another example would be the arbitral award being given in the famous Lac Lanoux arbitration, between France and Spain. It dealt with the situations in which one State could lawfully use shared international waters. Each of these cases is remarkable as they show historical examples of economic development at loggerheads with environmental protection. . They have been instrumental in showing that there are issues that crop up during the balancing of competing interests. This being the case, it is important to point out that there isnt single adjudicatory body or tribunal that deals solely with the resolution of Environmental Disputes. Many different international bodies undertake dispute resolution in the environmental disputes. Some of them include: 1.) The Permanent Court of International Arbitration Though this forum has been

overshadowed with the creation of other dispute resolution institutions, its award in the case concerning the Iron Rhine (Ijzeren Rijn) Railway (Belgium v. Netherlands, May 2005) is a noteworthy one. 2.) The International Court of Justice - The ICJ has played a significant role in many

different fields in International Law. It has successfully adjudicated disputes and mitigated situations. Some of the most well known examples of its successes include: The advisory opinion on the Legality of the Use of Nuclear Weapons, The judgment given in the Case concerning the Gabcikovo/Nagymaros dispute

(Hungary/Slovakia) where the issue of construction of barrages on the Danube cropped up. The provisional measures ordered by the ICJ in the case concerning Pulp Mills on the

River Uruguay , brought by Argentina against Uruguay (July 2006) 3.) The WTO Appellate Body - Its decision in the Shrimp Turtle case , concerning the

circumstances in which the United States was able to impose conservation measures under its laws on shrimping activities taking place in four Asian countries. 4.) The International Tribunal for the Law of the Seas The provisional measures ordered

in the Southern Blue-Fin Tuna cases brought by Australia and New Zealand against Japan, dealt with Japans independent scientific experimental fishing (August 1999). Additionally its decision in theMOX Plant case brought by Ireland challenging the United Kingdoms sanction of a new nuclear facility at Sellafield, and the Land Reclamation case brought by Malaysia

against some of the land reclamation activities undertaken by Singapore are examples of its contributions to the adjudicating of international environmental disputes. It is important to give special mention to the Permanent Court of Arbitration. The PCA is an intergovernmental organization with around 115 member states. It was established in 1899 to facilitate arbitration and other forms of dispute resolution between states. The PCA's Secretariat, the International Bureau, headed by its Secretary-General, provides full registry services and legal and administrative support to tribunals and commissions. Its caseload reflects the breadth of PCA involvement in international dispute resolution, encompassing territorial, treaty, and human rights disputes between states, as well as commercial and investment disputes, including disputes arising under bilateral and multilateral investment treaties. The PCA adopted the Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources ("Environmental Rules") in 2001. A working group and committee of experts in environmental law and arbitration drafted the rules. The Environmental Rules aim to deal with some of the principal lacunae in environmental dispute resolution that was identified by the working group. The PCA has also adopted the The Optional Rules for Conciliation of Disputes Relating to the Environment and/or Natural Resources in 2002. These Rules give the most comprehensive set of environmentally tailored dispute resolution procedural rules presently available. The PCA also provides help on drafting environment related dispute settlement clauses. The Environmental Arbitration Rules provide for the establishment of a specialized list of arbitrators considered to have expertise in this area. The Rules also provide for the establishment of a list of scientific and technical experts who may be appointed as expert witnesses pursuant to these Rules.Parties to a dispute are free to choose arbitrators, conciliators and expert witnesses from these Panels. However, the choice of arbitrators, conciliators or experts is not limited to the PCA Panels. Consequently there is a whole host of Arbitration Institutions available at the disposal of conflicting countries/parties to peaceably resolve their differences. Each of these institutions is no less than the other and have all contributed significantly to the pacific settlement of disputes.

Part V: Conclusion The sad truth that needs to be faced is that climate change, and the oil and gas that creates climate change, are threatening to entangle the Arctic Ocean and its bordering States into quarrels over sovereignty, access to resources, navigation and the protection of the environment. The use of the Northwest Passage by tankers or other vessels may be facilitated by the melting of Arctic ice due to climate change, but other changes brought about by climate change, including icebergs, movement of ice and changed currents, mean that any such use will bring new risks to the Arctic environment. The 15 years which have elapsed since the Exxon Valdez oil spill may have dulled some memories of the effect of oil spills in northern latitudes, but the more recent Prestige oil spill in 2002 itself brought about moves by States to protect their coastlines from oil pollution, including moves to introduce prohibitions on single hulled oil tankers which international law had not to date sanctioned. Article 234 of the Law of the Sea Convention is restricted to laws enacted by coastal States and to the EEZ. It may well be that international interest in protecting the fragile Arctic marine environment from oil spills will require more than coastal state controls and include prohibitions on transport and mineral extraction, where necessary. This sordid state of affairs has been amplified by Russian action towards to the Greenpeace ship The Arctic Sun. Keeping this in mind there is an urgent need to either set up viable mechanisms for resolving disputes modify the existing institutions on dispute resolution. The best and most suitable form of dispute resolution where nations are concerned is Arbitration. This is because they can involve themselves more in the whole process and feel more favourable towards the Award, however it goes. Arbitration is an effective method to resolve environmental disputes, having been used for the same purpose for many centuries. By:- Shambhavi Ravishankar,4th Year & Namit Bafna,3rd Year B.A.LL.B, School Of Law Christ University