# The Law of the Sea in the Age of Building an Appropriate Arctic Ocean Governance Addressing Climate Change Issues

Vonintsoa Rafaly

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Vonintsoa Rafaly. The Law of the Sea in the Age of Building an Appropriate Arctic Ocean Governance Addressing Climate Change Issues. The Yearbook of Polar Law Online, 2022, 13, pp.233 - 251. 10.1163/22116427_013010012. hal-05115034

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# The Law of the Sea in the Age of Building an Appropriate Arctic Ocean Governance Addressing Climate Change Issues

*Vonintsoa Rafaly*

## Abstract

Polar regions stand out due to the presence of rare and sensitive ecosystems, their vulnerability to climate change and other environmental threats and their importance for Indigenous communities, at the regional level, and for humankind as a whole. The Arctic region, is experiencing unexpected issues as a result of climate change effects. The law of the sea, as a prerequisite for ocean governance, constitutes a solid foundation for establishing an appropriate governance in this region to tackle current and future climate change issues. Therefore, the practice of the law of the sea in the region will be explored and the consideration of Arctic region's specificities on this practice will be analysed.

## Keywords

Governance – Law of the Sea – Cooperation – Socialization – Arctic Ocean

## 1 Introduction

Polar regions are important for humankind. According to the World Meteorological Organization (WMO), “what happens in the Polar regions affects the rest of the world and concerns us all.”<fnref n="1" /> Therefore, the need to implement an appropriate governance in these regions is of utmost importance considering

<footnote>* Postdoctoral Researcher, University of Gothenburg, Sweden. vonintsoa.rafaly@law.gu.se.</footnote>

<footnote n="1">¹ WMO, *The State of Polar Research*, WMO Publications, February 2009, 16, https://repository.si.edu/bitstream/handle/10088/18889/anth_IPY_StateofPolarResearch_EN_web.pdf?sequen-ce=1&isAllowed=y> accessed 22 December 2020.</footnote>
the fact that those are currently experiencing serious threats. Climate change is causing environmental changes in global level: sea level rise, rising temperatures of ocean's surface, shift in the distribution of marine species,<fnref n="2" /> ocean acidification, and many more. There are visible signs of such changes in the Arctic region, for example, where average temperatures have risen twice as fast as those in the rest of the world<fnref n="3" /> and some species were found in unexpected part of the Arctic Ocean.

In this paper the Arctic Ocean will be defined following the Northern Polar Circle, within the limits of 60° North latitude.<fnref n="4" /> Looking at the legal and institutional framework governing this region, sovereignty and sovereign rights of states are a major concern. The Arctic Ocean governance is characterized by a state-centred approach, entailing continuing prioritisation of self-interest by Arctic States.<fnref n="5" /> This could be explained by the fact the Arctic region has been inhabited.

Arctic Ocean governance is based on a large number of legally binding and non-binding instruments covering different areas of field, namely, marine pollution, fisheries, and environmental policies and law. To add another layer of complexity, soft cooperation mechanisms are on the rise as the changing environment in the region encouraged the consideration of a broader interest in addition to national interests of Arctic States<fnref n="6" /> such as the interests of

<footnote n="2">2 See William W.L. Cheung et al., "Large-Scale Redistribution of Maximum Fisheries Potential in the Global Ocean Under Climate Change," *Global Change Biology* 16, no. 1 (2010): 24–35.</footnote>

<footnote n="3">3 Timo Koivurova, “Polar Regimes Tackling Climate Change,” in *Polar Law Textbook II*, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, 2013), 68. For scientific reports, see the work of the National Snow and Ice Data Center, “Climate Change in The Arctic,” All About Arctic Climatology and Meteorology, accessed 22 December 2020, https://nsidc.org/cryosphere/arctic-meteorology/climate_change.html, and the Intergovernmental Panel on Climate Change, *Climate change 2013: The Physical Science Basis. Working Group I Contribution to the IPCC Fifth Assessment Report* (Cambridge: Cambridge University Press, 2013), https://www.ipcc.ch/report/ar5/wg1/, accessed 22 December 2020.</footnote>

<footnote n="4">4 This definition considers the geographical scope of the IMO, *Guidelines for Ships Operating in the Arctic Ice-Covered Waters*, 2002, https://www.gc.noaa.gov/documents/gcil_1056-MEPC-Circ399.pdf; and the definition of the FAO Arctic Fisheries Zone: Food and Agriculture Organization of the United Nations (FAO), “FAO Major Fishing Areas: ARCTIC SEA (Major Fishing Area no. 18),” accessed 23 April, 2021, https://www.fao.org/fishery/en/area/18; that will be discussed in this paper.</footnote>

<footnote n="5">5 The Arctic states are known as eight states: five Arctic coastal states (Canada, Norway, Denmark through Greenland, the Russian Federation and the United States) and three other states (Finland, Iceland and Sweden).</footnote>

<footnote n="6">6 See Lawson Z. Brigham, “The Changing Maritime Arctic and New Marine Operations,” in *Governance of Arctic Shipping: Balancing Rights and Interests of Arctic States and User States*, eds. Robert C. Beckman et al. (Leiden: Brill, 2017), 11–12.</footnote>
Indigenous communities, distant water fishing nations,<fnref n="7" /> and even common interests – on the regional and global level, which are really difficult to conciliate. One question appears relevant, whether those cooperation means serve only to safeguard Arctic states interest or do they consider common purposes, whereas any attempt for integration is absent from governance perspective.

The concept of ‘governance of the Arctic Ocean’ took shape in 1990s, when Arctic states began to promote international cooperation in the region. Among the many definitions developed in international law and international relations, this paper will opt to use the one given by Fran Ulmer in the 2015 Arctic Yearbook, citing Marc Huftying. Governance relates to “the processes of interaction and decision-making among the actors involved in a collective problem that led to the creation, reinforcement, or reproduction of social norms and institutions.”<fnref n="8" /> In other words, analysing governance is an evolving process and requires elements which must allow for adaptation regarding changes and progress. Therefore, talking about building an appropriate governance for the Arctic Ocean implies considerations which feature the evolution of existing means of interaction between actors, the legal regime and the policy making in the region. Regarding theoretical approaches of ‘governance’ this study emphasizes the evolution from a functional approach on the Arctic Ocean governance to a cooperation based on mutual interests between Arctic states and non-Arctic states, regarding ocean-related matters.

The purpose of this study is essentially to address the extent and scope of the law of the sea input on Arctic Ocean governance, through analysing the implementation of general rules of the law of the sea, mainly codified in the United Nations Convention for the Law of the Sea (UNCLOS), as well as discussing its perspectives regarding current global challenges in the Arctic region, mainly climate change. UNCLOS has been the legal framework governing maritime activities and ocean-related matters for almost 40 years. Its role as a comprehensive framework for ocean governance is beyond doubt even though some criticisms could be justified. However, times and situations

<footnote n="7">7 This means that “a State’s fishing vessels conduct a significant degree of their activity in the waters of non-neighboring States or on the high seas.” See Robin Churchill, “The European Union as an Actor in the Law of the Sea, with Particular Reference to the Arctic,” *International Journal of Marine and Coastal Law* 33, no. 2 (2018): 290–323.</footnote>

<footnote n="8">8 This definition was established by Marc Huftying in his article “Investigating Policy Processes: The Governance Analytical Framework (GAF),” in *Research for Sustainable Development: Foundations, Experiences, and Perspectives*, eds. Urs Wiesmann and Hans Hurni (Bern: Geogaphica Bernensia, 2011), 403–424.</footnote>
are changing, and new concerns arise about harmful practices affecting the marine ecosystem. Although these were unknown at the time of negotiating the UNCLOS.<fnref n="9" /> For instance, the melting of sea-ice in the region, as a consequence of climate change, would open new opportunities for more intense maritime activities such as maritime transit and trade-related activities, tourism, fisheries and exploration and exploitation of non-living resources in the Arctic region. Granted that, impacts of the expansion of such activities are of uncertainty. Then, the need to consider possible future direction for strengthening international cooperation in protecting the environment and conserving marine living resources in the Arctic Ocean is critical. Therefore, establishing an adequate governance mechanism is fundamental in facing the challenge of climate change but also the pressures from the process of globalization at stake in the international society.

On that matter, this study answers the question: to what extent the existing law of the sea could provide an appropriate governance framework for the Arctic Ocean. Emphasis will be made on the UNCLOS input in the Arctic Ocean governance. First, an overview of the existing law of the sea will be established. Thereafter, focus will shift to the UNCLOS as the legal framework for the Arctic Ocean governance, and its influence on the evolution of such legal framework. Additionally, contemporary developments will be explored and discussed in order to determine the future role of UNCLOS in enhancing an appropriate governance for the Arctic Ocean.

## 2 The Existing Law of the Sea

The law of the sea refers to all norms and rules governing human activities at sea, rights and responsibilities of states, and delimitation of maritime zones. It consists of several general rules – customary rules – mainly codified in UNCLOS which is considered as the most significant convention dealing with ocean-related issues, and therefore is the main source of the international law of the sea.<fnref n="10" /> It has been accompanied by a numerous regional and bilateral instrument that has expanded its scope, and in the same way, through interpretation of its provisions by international courts and tribunals.

<footnote n="9">9. Fran Ulmer, "Preface – Arctic Governance," in *The 2015 Arctic Yearbook – Arctic Governance and Governing*, eds. Lassi Hininen, Hetaher Exner-Pirot, and Joël Plouffe (Akureyri: Northern Research Forum, 2015), 10.</footnote>

<footnote n="10">10. Robin Churchill, "The 1982 United Nations Convention on the Law of the Sea," in *The Oxford Handbook of the Law of the Sea*, eds. Donald R. Rothwell, Alex Oude Elferink, Karen Scott and Tim Stephens (Oxford: Oxford University Press, 2015), 24.</footnote>
UNCLOS's characteristics serve to make it as a foundation for progressive development of the law of the sea and a platform on which new emerging maritime related issues are to be addressed, gaps closed and deficiencies, if discovered, to be corrected, namely by additional regulatory regimes.<fnref n="11" />

In addition to the broad law of the sea framework based on UNCLOS, the Arctic Ocean is also governed by other general and sectoral, global and regional instruments dealing with major concerns after the adoption of the Convention. Some instruments, adopted in the global level are applicable to the Arctic region, among which are the 1992 Convention on Biological Diversity,<fnref n="12" /> the 1992 United Nations Framework Convention on Climate Change (UNFCCC),<fnref n="13" /> and the standards and regulations established under the International Maritime Organization (IMO). On the regional level, several intergovernmental and transnational fora have, in their agenda, norm-making processes that has impact on Arctic Ocean governance, on diverse matters as such as shipping activities, oil and mineral exploration, maritime security or environmental regulations. These processes are conducted through different fora like the Arctic Council or the OSPAR Commission, but also through industry-based private governance with the cooperation between maritime industries involved in activities in the Arctic Region.<fnref n="14" />

### 3 UNCLOS as a Legal Framework for Arctic Ocean Governance

A legal framework is a prerequisite for any model of governance and as such the law of the sea provides a basis for Arctic Ocean governance. The importance of UNCLOS was asserted by various regional legal instruments, as a

<footnote n="11">11 Rosemary Rayfuse, “Regulating Fisheries in the Central Arctic Ocean: Much Ado About Nothing?.” in *Arctic Marine Resource Governance and Development*, eds. Niels Vestergaard et al. (New York City: Springer Polar Science Series, 2018), 37.</footnote>

<footnote n="12">12 Convention on Biological Diversity, Rio de Janeiro, 5 June, 1992, entered into force 29 December, 1993, *Treaty Series*, vol. 1760.</footnote>

<footnote n="13">13 United Nations Framework Convention on Climate Change, New York City, 2 May, 1992, entered into force 21 March, 1994, *Treaty Series*, vol.1771. For the relation between UNCLOS and UNFCCC, see Alan Boyle, “Law of the Sea Perspectives on Climate Change,” in *The 1982 Law of the Sea Convention at 30: Successes, Challenges and New Agendas*, ed. David Freestone (Leiden: Martinus Nijhoff Publishers, 2013), 157–164.</footnote>

<footnote n="14">14 See Svein V. Rottem, “6. The Arctic Council in Arctic Governance: The significance of the Oil Spill Agreement,” in *The New Arctic Governance*, eds. Linda Jakobson and Neil Melvin (Oxford: Oxford University Press, 2016), 166–170. This is for example the development of standards for oil and gas operations in the Barents Sea established in the Barents 2020, which was an initiative of companies involved in Arctic hydrocarbon extraction.</footnote>
comprehensive framework to deal with maritime issues in the Arctic region. Consequently, Arctic states have rejected from time to time any idea of implementing a new global framework, as such as the Antarctic Treaty System, in the Arctic region.<fnref n="15" />

First, the law the sea regime is inherent to the Arctic Ocean. As well-known, the Arctic Ocean is surrounded by continents; it is therefore coherent to mainly apply the law of the sea in the region. Moreover, there are some UNCLOS's provisions specifically dedicated or could be applied to the Arctic Ocean,<fnref n="16" /> among which is the article 234 on ice-covered areas, known as the 'Arctic' or the 'Canadian clause'.<fnref n="17" /> This provision was adopted to enlighten the uniqueness of ice-covered areas and the need of ensuring specific protection and preservation of marine environment, through coastal states right to adopt and enforce law and regulations related to marine pollution in those regions. However, considering the melting of the sea-ice in the Arctic Ocean, the scope and the extent of this provision is likely to be challenged. The ambiguity and the general scope of this article could imply serious difficulties on its application and interpretation. Considering the different practice of Arctic coastal

<footnote n="15">15 That was, for example the position of Canada, stating that it “does not accept the premise that the Arctic requires a fundamentally new governance structure or legal framework,” Government of Canada, *Statement on Canada's Arctic Foreign Policy: Exercising: Sovereignty and Promoting Canada's Northern Strategy Abroad*, 2010, accessed 22 December, 2020, 8, http://publications.gc.ca/collections/collection_2017/amc-gac/FR5-111-2010-eng.pdf. Some legal scholar also joins this point of view. Hans Corell, “Reflections on the Possibilities and Limitations of a Binding Legal Regime,” *Environmental Policy and Law* 37, no. 4 (2007): 321–324; Cecile Pelaudeix, “What is ‘Arctic Governance’? A Critical Assessment of the diverse Meanings of Arctic Governance,” in *The Yearbook of Polar Law* 6, eds. Gudmundur Alfredsson and Timo Koivurova (Leiden: Brill Nijhoff, 2015), 398–426; Tim Stephens and David L. VanderZwaag, “Polar Oceans Governance: Shifting Seascapes, Hazy Horizons,” in *Polar Oceans Governance in an Era of Environmental Change*, eds. Tim Stephens and David L. VanderZwaag (Cheltenham, UK: Edward Elgar Publishing, 2014), 11; Claudia Cinelli, “The Law of the Sea and the Arctic Ocean,” *Arctic Review on Law and Politics* 2, no. 1 (2011): 21; Contra, Donald R. Rothwell, “Polar Governance in the 21st Century,” *Ocean Yearbook* 26, no. 1, (2012): 343–360.</footnote>

<footnote n="16">16 Article 76 concerning processes for resolving conflicting continental shelf claim, articles 122 and 123 which encourage cooperation and coordination for resources management purposes in enclosed or semi-enclosed sea. On the consideration of the Arctic as a semi-enclosed sea, see Oran Young, “The Arctic in Play: Governance in a time of Rapid Change,” *International Journal of Marine and Coastal Law* 24, no. 2 (2009): 423–443.</footnote>

<footnote n="17">17 This article originated in Canada's concern with foreign vessel traffic in the Canadian Arctic, and enables coastal states to pass and enforce especially strict vessel-source pollution rules. See Burt K. Carnahan, “The Canadian Arctic Water Pollution Act; Analysis,” *Louisiana Law Review* 31, no. 4 (1970), 361; Olav S. Stokke, “A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention,” *Marine Policy* 31, no. 4 (2007), 402.</footnote>
states on that matter, conflicts would likely arise between coastal states and shipping states concerning the laws and regulations adopted and enforced if the Arctic is to be open for shipping.<fnref n="18" />

Furthermore, the role of the law of the sea in Arctic Ocean governance was recognised by the Arctic States in several instruments. The 2008 Ilulissat Declaration argues that the law of the sea provides an extensive international legal framework which applies to the Arctic Ocean regarding human activities at sea.<fnref n="19" /> And it is a “solid foundation for responsible management [...] of this ocean through national implementation and application of relevant provisions”. It was also confirmed in the Arctic Council's Arctic Marine Strategic Plan (2014–2024) which recognizes that UNCLOS provides a legal framework for all ocean activities; and its key concepts (precautionary approach and ecosystem-based approach) and commitments are a basis for sustainable ocean management in the Arctic Ocean.<fnref n="20" />

In addition, the UNCLOS promotes a balance between different interests at sea. Considering the existing divergences between Arctic states and other states having interest in the Arctic region, the general obligation of cooperation induced by the UNCLOS remains the core of any attempt to establish a governance framework. It constitutes a solid background to foster Arctic Ocean governance in particular. This is the case in fisheries resources conservation and management, for example. Arctic fisheries resources are mainly composed by fish stocks that migrate across the Arctic state's economic zones and across the latter and areas beyond national jurisdiction. According to the rules of international law of the sea, Arctic states could not make any decision on conservation and management of such resources without the involvement of non-Arctic States with interest in fisheries in the Arctic Ocean.<fnref n="21" /> This was illustrated, for example, in the 2018 Agreement on Fisheries in the Central

<footnote n="18">18 See the comment under Article 234 UNCLOS, Erik Franckx and Laura Boone, "Article 234 – Ice-covered Areas," in *United Nations Convention on the Law of the Sea – A Commentary*, ed. Alexander Proelss (München: C.H. Beck, 2017), 1566–1585.</footnote>

<footnote n="19">19 According to the Ilulissat Declaration, UNCLOS "provides for important rights and obligations concerning the delineation of the outer limits of continental shelf, the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea," para. 3. *The Ilulissat Declaration*, Arctic Ocean Conference, Ilulissat, Greenland, 27–29 May, 2008, https://cil.nus.edu.sg/wp-content/uploads/2017/07/2008-Ilulissat-Declaration.pdf.</footnote>

<footnote n="20">20 See Arctic Council, *Arctic Marine Strategic Plan 2014–2024. Protecting Marine and Coastal Ecosystem in a Changing Arctic*, ACSAO-CA01 Doc. 6.6.1a, Whitehorse, Canada, October 2013, https://oaarchive.arctic-council.org/bitstream/handle/11374/1264/AC_SAO_CA01_Doc6-6-1a_First_Draft_Revised_AMSP.pdf?sequence=1&isAllowed=y.</footnote>

<footnote n="21">21 Articles 61–70 and 118 UNCLOS.</footnote>
Arctic Ocean (CAOF Agreement),<fnref n="22" /> regrouping Arctic coastal states and dis-
tant fishing nations concerning fisheries in the high seas part of the Central
Arctic Ocean.

Although some ocean-related issues concerning the Arctic region have been
reached through the UNCLOS's principles,<fnref n="23" /> this Convention was not designed
to solve all future ocean-related issues.<fnref n="24" /> And when it comes to the Arctic,
there are some specificities that UNCLOS could not deal with, namely regard-
ing climate change challenges. The melting of sea-ice in the Arctic, the open-
ing of some areas to shipping and the discovery of new commercially attractive
fisheries resources required the designation of special maritime and environ-
mental regime for the Arctic Ocean, regarding its uniqueness. To address such
evolving concerns, there is a need to develop specific rules and standards.
Some steps were made, even though their impact on Arctic Ocean governance
is not without doubts.

As an illustration, the consideration of actual climate change impacts on
marine environment needed a broader interpretation of Part XII of UNCLOS's
provisions. This process is crucial for the Arctic Ocean governance. Serious
damages would occur if melting of sea-ice and, therefore, shipping activities
are likely to progressively increase, contributing to the emission of green-
house gases that would inevitably alter the marine environment ecosystem.<fnref n="25" />

<footnote n="22">22 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, Ilulissat, 3 October 2018, not yet in force, see Annex to the Proposal for a Council Decision on the signing of the Agreement <https://eur-lex.europa.eu/resource.html?uri=cellar:2554f475-6e25-11e8-9483-01aa75ed71a1.0001.02/DOC_2&format=PDF> accessed 22 December 2020.</footnote>

<footnote n="23">23 This is the case of the Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September, 2010 https://www.regjeringen.no/globalassets/upload/ud/vedlegg/folkerett/avtale_engelsk.pdf. Its negotiation was based on articles 74 and 83 of the UNCLOS (previously governed by the article 6 of the 1958 United Nations Convention on the continental shelf for the two states) and led to the implementation of measures ensuring the continuation of fisheries cooperation in the Barents Sea (see Appendix 1 of the Treaty).</footnote>

<footnote n="24">24 Janusz Symonides, "Nierozwiązane kwestie i wyzwania prawa morza (Unresolved Issues and Emerging Challenges in the Law of the Sea)," *Prawo Morskie* 34 (2018): 18, available in English at https://journals.pan.pl/Content/109795/PDF/symonides.pdf?handler=pdf.</footnote>

<footnote n="25">25 From a general perspective, see Bevan Marten, “The enforcement of Shipping standards under UNCLOS,” *World Maritime University Journal of Maritime Affairs* 10, no. 1 (2011), 45–61; Robert Beckman and Zhen Sun, “The Relationship Between UNCLOS and IMO Instruments,” *Asian-Pacific Journal of Ocean Law and Policy* 2, no. 2 (2017): 201–246. Concerning ship-source pollution and air pollution from ships, see Jesper J Fanø, *Enforcing International Maritime Legislation on Air Pollution through UNCLOS* (Oxford: Bloomsbury Publishing, 2019), 99–117. Two special cases before the European Union Court of Justice, see *EUCJ, Intertanko and Others*, Case C-308/06, *ECLI:EU:C:2008:312*, 2008; *EUCJ, Mattia*</footnote>
A special legal framework was established, concerning shipping in the Polar regions, the Polar Code.<fnref n="26" /> The applicability of this Code in the Arctic Ocean is challenged to address climate change effects. It concerns only ships engaged on international voyages,<fnref n="27" /> excludes fishing vessels and cargo ships of less than 5,000 gross tonnage. These limitations challenge seriously the impact of the Polar Code in addressing climate change effects on the region, as most of vessels operating in the Arctic Ocean are not governed by the Polar Code.<fnref n="28" />

Nevertheless, the existence of different level of regimes, interactions between hard law and soft law and cooperation within and across sectors could induce a “patchwork of legal regimes”<fnref n="29" /> in the Arctic Ocean governance. And here is the significant role of the law of the sea as a comprehensive regime. The UNCLOS would fulfil the traditional functions of international law, ensuring coexistence and cooperation between international actors and providing a legal basis to resolve disputes on those ocean-related matters.<fnref n="30" />

## 4 Importance of Flexibility and Adaptability in an Ever-Changing Environment

The broadness of rights and obligations under UNCLOS provides a basis for the development of a legal framework concerning ocean-related issues on the regional level by implementing specific, more detailed, and stricter rules.

<footnote>Manzi and Compagnia Naviera Orchestra, 23 January 2014, Case C-537/11, ECLI:EU:2014:19, 2014.</footnote>

<footnote n="26">26 Adopted through International Maritime Organization Maritime Safety Commission (IMO MSC), *International Code for Ships Operating in Polar Waters (Polar Code)*, Res. MSC.385(94), 21 November, 2014, Annexes 6 and 7; and International Maritime Organization Marine Environment Protection Committee (IMO MEPC), *International Code for Ships Operating in Polar Waters (Polar Code)*, Res. MEPC.264(68), 15 May, 2015, into force 1 July, 2018, Annex 10.</footnote>

<footnote n="27">27 Discussions about that specific criteria, see International Maritime Organization Maritime Safety Commission (IMO MSC), *Report of the Marine Safety Committee on its Ninety-Third Session*, MSC 93/21, 30 May, 2014, para. 10.20.</footnote>

<footnote n="28">28 See Zhen Sun and Robert Beckman, "The Development of the Polar Code and challenges to its Implementation," in *Global Commons and the Law of the Sea*, ed. Keyuan Zou (Leiden: Brill, 2018), 303-325.</footnote>

<footnote n="29">29 Michael T. Geiselhart, “The Course Forward for Arctic Governance,” *Washington University Global Studies Law Review* 13 (2012): 155–178. According to the author this patchwork frame could be noticed through different legal order (international treaties, bilateral agreements and domestic law), according to the mandatory nature of rules (binding or non-binding instruments) and the scope of governance (all one wide-ranging governance and sectoral governance).</footnote>

<footnote n="30">30 Cinelli, “The Law of the Sea and the Arctic Ocean,” 20.</footnote>
It entails the need of flexibility and adaptability regarding changing circum-
stances and the evolution of human activities in the Arctic region and as such,
a more adequate regime.

Some UNCLOS's principles and concepts like the general obligation of cooperation, the precautionary approach, the science-based approach, and the ecosystem-based management were developed in other legal instruments which could be considered as implementing UNCLOS. These instruments legitimize the legal development of existing law of the sea, but also encourage the development of useful tools of governance. Regarding the Arctic Ocean governance, some issues are worth to point out, particularly concerning the protection and preservation of marine environment, especially conservation and management of marine living resources.

4.1 *The Arctic Governance: A Model of Productive Cooperation*

The cooperation and coordination between states is enlightened by UNCLOS as a general means for governance. Arctic coastal states play a major role in the protection and preservation of the marine environment in the region, not only for their self-interest but also in regard to their common interests in the region. The Arctic governance is driven by different legal regimes at the regional level but also at the national level. It seems that it is also governed through an issue-by-issue approach, where cooperation takes place only when needed. To address such issues, “the collective response has primarily been through reliance on ‘soft law’ mechanisms and arrangements with avoidance of hard law treaty framework.”<fnref n="31" />

Concerning the conservation and management of marine living resources,
the Arctic Ocean governance constitutes an example of existing “model of
productive multinational cooperation”<fnref n="32" /> with the cooperation between Arctic
coastal states and with distant water fishing states to establish a legal frame-
work in different level and in different parts of the Arctic Ocean. Such coopera-
tion is shifting governance from state-centred approach to a more cooperative
action, outlining a distinctive element to ocean governance in the Arctic

<footnote n="31">31 Ibid., 359.</footnote>

<footnote n="32">32 Geiselhart, “The Course Forward for Arctic Governance,” 173. Such cooperation could be viewed as the manifestation of the ecosystem-based management which “seeks to transcend jurisdictional boundaries, approach socio-ecological systems in holistic terms, and provide a rationale for collaborative management practices.” Young, “The Arctic in Play: Governance in a time of Rapid Change,” 434.</footnote>
region. Likewise, these cooperation mechanisms were considered as being
more efficient to deal with Arctic Ocean-related matters.<fnref n="33" />

As sea ice declines, and if this region has to be considered as a common, it
would create a broader interest beyond those of the Arctic coastal states. The
latter should acknowledge the increasing involvement of non-Arctic states, by
encouraging their participation in the governance of the Arctic Ocean. This
step was taken in the field of fisheries in the Central Arctic Ocean, for example,
anticipating pressures to initiate industrial fishing. The CAOF Agreement illus-
trates the willing of Arctic coastal States to cooperate with distant water fishing
nations<fnref n="34" /> to prevent unregulated fisheries in the region, even there is not yet
any feasible fishing in this part of the Arctic Ocean which lies beyond national
jurisdiction. More than enhancing broader cooperation, this agreement illus-
trates the application of the precautionary approach. It aims to "prevent unreg-
ulated fishing in high seas portion of the Central Arctic Ocean through the
application of precautionary conservation and management measures."<fnref n="35" /> Its
uniqueness lies on the establishment of a legally binding instrument, through
which the contracting parties acknowledge and reinforce the importance of
the precautionary approach in the conservation and management of living
resources of the high seas, "to prevent the start of unregulated fishing."

Despite this Agreement is regarded as an “example of progress toward effec-
tive Arctic cooperation and governance,”<fnref n="36" /> addressing one of the main prob-
lems in the region, it concerns only unregulated fishing and permits, under
certain conditions, commercial fishing<fnref n="37" /> and exploratory fishing.<fnref n="38" /> The quali-
fication ‘moratorium on fishing’ used in the literature would therefore be inap-
propriate as the Agreement clearly allows commercial fishing.<fnref n="39" /> However, one
could not deny the impact of the Agreement on refraining the rush to Central
Arctic Ocean fisheries. And as a legally binding instrument, it goes beyond

<footnote n="33">33 Natalia Loukacheva, “Introduction to Polar Law,” in *Polar Law Textbook*, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, 2010), 13–14.</footnote>

<footnote n="34">34 Namely China, the European Union, Iceland, Japan and South Korea.</footnote>

<footnote n="35">35 Article 2 of the CAOF Agreement.</footnote>

<footnote n="36">36 Ulmer, “Preface – Arctic Governance,” 12.</footnote>

<footnote n="37">37 Article 3.1 of the CAOF Agreement.</footnote>

<footnote n="38">38 Article 3.3 of the CAOF Agreement.</footnote>

<footnote n="39">39 See Valentin J. Schatz, Alexander Proelss, Nengye Liu, “The 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean: A Critical Analysis,” *International Journal of Marine and Coastal Law* 34 (1999): 195–244; Erik J. Molenaar, “The CAOF Agreement: Key Issues of International Fisheries Law,” in *New Knowledge and Changing Circumstances in the Law of the Sea*, ed. Thomas Heidar (Leiden: Brill, 2020), 446–476.</footnote>
the 'soft law approach' that exemplifies how common concerns among Arctic states and between them and non-Arctic states are addressed.

In a narrower level, the example of management of fisheries in the Barents Sea and the Loophole<fnref n="40" /> is relevant, particularly regarding cooperation between Arctic coastal states (Norway and Russia) and states engaged in fisheries in this part of the Arctic region. The Barents Sea fisheries regime is governed by three main bilateral agreements between Norway and Russia,<fnref n="41" /> and by access agreements between the two coastal states and distant water fishing nations in the exclusive economic zone of the former.<fnref n="42" /> Fisheries in the region fall under the North East Atlantic Fisheries Commission (NEAFC) regulations, and although this area does not have an agreed maritime boundary,<fnref n="43" /> the two coastal states have managed to restrain fisheries with regard to increasing interest of third states in this attractive area.<fnref n="44" /> This regime is particularly rare in practice as it succeeded in convincing distant water fishing nations to cooperate in order to restrain catches of some threatened species.<fnref n="45" /> Fisheries are regulated through means as exchange of national quotas and interdiction of fishing in the high

<footnote n="40">40 Those seas are not considered as part of the Arctic Ocean *per se*, however, the implication of Arctic coastal states and the connection between those seas and the Arctic Ocean is relevant concerning governance of fisheries and the preservation and protection of the marine environment in the region.</footnote>

<footnote n="41">41 The Framework Agreement (1975), the Mutual Access Agreement and the Grey zone Agreement. See Olav S. Stokke, "The Loophole of the Barents Sea Fisheries Regime," in *Governing High Seas Fisheries: The Interplay of Global and Regional Regimes*, ed. Olav S. Stokke (Oxford: Oxford University Press, 2001), 273-274.</footnote>

<footnote n="42">42 See for the case of Iceland 1999 Agreement between the Government of Iceland, the Government of Norway and the Russian Federation concerning certain aspects of co-operation in the area of fisheries with protocols, *International Journal of Marine and Coastal Law* 14 (1999), 484. See also, Robin Churchill, "The Barents Sea Loophole Agreement: A 'Coastal State' Solution to straddling Stock Problem," *International Journal of Marine and Coastal Law* 14 (1999): 468-475.</footnote>

<footnote n="43">43 Only a provisional delimitation of a part of the disputed area has been set. See Tore Henriksen and Geir Ulfstein, "Maritime Delimitation in the Arctic: The Barents Sea Treaty," *Ocean Development and International Law* 42, no. 1-2 (2011): 1-21; Irene Dahl, "Maritime Delimitation in the Arctic: Implications for Fisheries Jurisdiction and Cooperation in the Barents Sea," *International Journal of Marine and Coastal Law* 30, no. 1 (2015): 120-147.</footnote>

<footnote n="44">44 This is for example the case for European union member states, Greenland and Iceland.</footnote>

<footnote n="45">45 The agreements between coastal states and distant water fishing states could be considered as a regional fisheries management arrangement, see Stokke, "The Loophole of the Barents Sea Fisheries Regime," 273-301. It could also be characterized as 'direct cooperation' in the sense of Article 7(1)(a) of the 1995 UN Fish Stock Agreement, see Peter Örebech et al., "The 1995 United Nations Straddling and Highly Migratory Fish Stocks Agreement: Management, Enforcement and Dispute Settlement," *International Journal of Marine and Coastal Law* 13 (1998): 124.</footnote>
seas beyond the quota assigned, based on the precautionary approach and ecosystem approach.<fnref n="46" /> This sort of cooperation is relevant because in the absence of any institutionalized mechanism and instead of the influence of coastal states interests, the latter were willing to cooperate by taking decision on a common ground, with non-Arctic states.

## 4.2 Area-Based Management Tools as a Temporary Solution to Face Climate Change Effects

Regarding the cooperation framework in place in the Arctic region, the implementation of area-based management tools could be developed to ensure an appropriate governance of the Arctic region, 'by managing human activities within a spatially defined area',<fnref n="47" /> such as marine protected areas (MPAS) or Particular Sensitive Sea Areas (PSSAS). The implementation of both area-based management tools was already envisaged for the Arctic Ocean. Although different in their characteristics, the main objective of these tools is to preserve and protect the marine environment, entailing interactions between the law of the sea and the international environmental law.<fnref n="48" /> The implementation of such tools in the Arctic region could be based on the provisions of UNCLOS which provides the general obligation of states to protect and preserve marine environment, as set forth in the wording of its articles 192 and 237.

On the one hand, MPAS are essential for the protection of marine species and habitats and operates by bringing together different stakeholders and users in order to attain this objective. The legal basis for establishing MPAS could be found in article 194 (5) of UNCLOS<fnref n="49" /> which enounces that states should take all necessary measures to prevent, reduce and control pollution

<footnote n="46">46 Gemma Andreone, “Fisheries in the Antarctic and in the Arctic,” in *The Antarctic Legal System. The Protection of the Environment of the Polar Regions*, ed. Gianfranco Tamburelli (Istituto di Studi Giurudici Internazionali-Consiglio Nationale della Ricerca: Giuffrè Editore, 2008), 86.</footnote>

<footnote n="47">47 Siân Prior, Aldo Chircop and Julian Roberts, “Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Area Concept,” *International Journal of Marine and coastal Law* 25, no. 4 (2010), 483.</footnote>

<footnote n="48">48 In line with the general obligation of states to protect and preserve marine environment. Article 192 and 237 UNCLOS.</footnote>

<footnote n="49">49 See Erik J. Molenaar and Alex G. Oude Elferink, “Marine Protected Areas Beyond National Jurisdiction: The Pioneering Efforts under the OSPAR Convention,” *Utrecht Law Review* 5 (2009), 5–20; Odile Delfour-Samama, “Les Aires Marines Protégées, Outil de Conservation de la Biodiversité en Haute Mer,” *Neptunus International e-Revue* 19, no. 1 (2013), <https://cdmo.univ-nantes.fr/fr/neptunus-e-revue/annees-2010; Pascale Ricard, “Les Aires Marines Protégées en Haute Mer et la Difficile Conciliation entre Droit de la Mer et Droit de l’Environnement,” in *Transforming the Ocean Law by Requirement of the Marine Environment*, coord. Patrick Chaumette (Madrid: Marcial Pons, 2019), 249–267.</footnote>
of the marine environment, including ‘those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’. To a certain extent, MPAS could be implemented in the Arctic Ocean to avoid potentially irreversible damage to that fragile ecosystem. The Arctic Council has done an important work in that sense, in terms of scientific knowledge production and policy recommendation,<fnref n="50" /> but it lacks competence to act further through implementation and enforcement. Therefore, if MPAS are to be established in some parts of the Arctic Ocean or in the Arctic Ocean in general, the involvement of the five Arctic coastal states is crucial to avoid any lack of proper management.<fnref n="51" /> Additionally, considering the continuing melt of the sea-ice in the region, the participation of non-Arctic states should be considered as they have interest on the matter.

On the other hand, establishing PSSAs in the Arctic Ocean could be an option to ensure the protection of marine environment.<fnref n="52" /> PSSAs are areas in which the adoption of strict mandatory methods for the prevention of sea pollution is required, regarding their oceanographical and ecological conditions and their sea traffic.<fnref n="53" /> Therefore, these are less restrictive than the MPAS. The establishment of such tools could be based on the article 211(6) of UNCLOS according which, where a “clearly defined area” of a coastal states exclusive economic zone is founded to be an “area where the adoption of special

<footnote n="50">50 Arctic Council, *Bridging Workshop Report*, AMSA II[C]/AMSA II(D), 12–13 June, 2013; PAME, *Framework for a Pan-Arctic Network of Marine Protected Areas*, April 2015. See also Vito De Lucia, “The BBNJ Negotiations and Ecosystem Governance in the Arctic,” *Marine Policy* (2019): 6–10.</footnote>

<footnote n="51">51 For an overview of the Arctic coastal states potential interest and benefits in establishing such MPAS, see Christina M. Bartol, “The Arctic Ocean as a Marine Protected Area: A Policy Proposal to the Five Arctic Nations,” (Master Thesis, American University, School of International Studies, 2011), https://auislandora.wrlc.org/islandora/object/1011.capstones%3A191/datastream/PDF/view.</footnote>

<footnote n="52">52 IMO, Revised Guidelines for the Identification and Designation of Particularly Sensitive Areas (PSSAs), Resolution A.982(24), 1st December, 2005. For an overview on legal aspects of this concept, see Julian Roberts, *Marine Environment Protection and Biodiversity Conservation: The Application and Future Development of the IMO’s Particularly Sensitive Area Concept* (Berlin: Springer, 2007).</footnote>

<footnote n="53">53 The concept of ‘PSSAs’ was elaborated in the IMO Guidelines for the identification and designation of PSSAs, in accordance to the article 237 of the UNCLOS. Although, the implementation of such tools could be based on the article 234 of the UNCLOS which accorded enforcement powers for the purpose of environmental protection over vessel traffic in EEZ for ice-covered areas. See Malgosia Fitzmaurice, “The International Convention for the Prevention of Pollution from Ships (MARPOL),” in *The IMLI Manual on International Maritime Law – Volume III: Marine Environmental Law and Maritime Security Law*, eds. David J Attard et al. (Oxford: Oxford University Press: 2016), 58.</footnote>
mandatory measures for the prevention of pollution from vessels is required,” the coastal state concerned could “adopt laws and regulations for the prevention, reduction and control of pollution from vessels,” implementing generally accepted rules and standards, through a competent organization, for such special areas. As its implementation is based on a Guideline, a PSSA does not place – at first sight – any legally binding obligations upon states in general.<fnref n="54" /> It could, however, be a policy management tool to limit shipping activities. In 1990, for example, Australia obtained IMO designation of the Great Barrier Reef as a PSSA within an extended territorial sea and imposed compulsory pilotage requirements.<fnref n="55" /> Applied to the Arctic region, a PSSA could be established in areas under Arctic coastal states competence, through cooperation between relevant stakeholders, and in order to safeguard the Arctic Ocean and prevent damages from future shipping lanes.<fnref n="56" /> The regime governing such protected areas could be based on the example of the CAOF Agreement, involving both Arctic States and non-Arctic States. The objective could be the restriction of access of certain type of vessel, during certain period of time, or the establishment of speed limits in order to lower the emission from ships, for example. Nonetheless, this concept could provide necessary protection measures to ensure comprehensive protection of the Arctic Ocean part lying beyond coastal states competence in line with the Arctic Ocean governance framework driven by soft law mechanisms, with particular emphasis on states cooperation.

Currently, none of these area-based management tools are in place. However, state-based actions, using national or bilateral tools applicable in national waters<fnref n="57" /> and the Arctic Council has contributed but only concerning scientific knowledge and policy recommendations.<fnref n="58" />

<footnote n="54">54 PSSA as a mean of protection and preservation of marine environment in the Arctic. See, Hossain Kamrul, “International Governance in the Arctic: The Law of the Sea Convention with a Special Focus on Offshore Oil and Gas,” 162–164.</footnote>

<footnote n="55">55 Colin Trinder, Stephen Sparkes and Peter Ottesen, “Shipping Threats and Protection of the Great Barrier Reef Marine Park – The Role of the Particularly Sensitive Sea Area Concept,” *International Journal of Marine and Coastal Law* 9, no. 4 (1994): 507–522.</footnote>

<footnote n="56">56 Prior, Chircop and Roberts, “Area-based Management on the High Seas: Possible Application of the IMO’s Particularly Sensitive Area Concept,” 485.</footnote>

<footnote n="57">57 This is the case of the Gulf of St. Lawrence Integrated Management Areas and we could also cite the Fisheries Protection Zone (FPZ) established by Norway off Svalbard.</footnote>

<footnote n="58">58 See Arctic Council, *Bridging Workshop Report; PAME, Framework for a Pan-Arctic Network of Marine Protected Areas*. It is worth to mention that the Arctic Council does not have competence to adopt measures in the areas beyond national jurisdiction of the Central Arctic Ocean.</footnote>
5

Law of the Sea Perspectives for a Better Governance
in the Arctic Region

As said before, the law of the sea forms the basis for governance of the Arctic Ocean. 40 years after its adoption, are there any new perspectives that UNCLOS could offer to the Arctic governance?

Comparatively, the Arctic Ocean is experiencing the effects of rapid, pro-
found and fluctuating climatic change. Yet it still lacks a comprehensive legal
framework and the idea of establishing an Arctic Treaty, as in the case of the
Antarctic Ocean, is rejected by the Arctic States. The Arctic Ocean governance
is characterized by a 'polycentric fragmentation'.<fnref n="59" /> On the one hand, the Arctic
is regulated through horizontal rules and institutions, dealing with different
ocean-related matters: shipping, fishing, protection of the marine environ-
ment, scientific research and many more. On the other hand, it involves inter-
national actors and institutions at the international, the regional, the national
and subnational level. If disputes are to arise in the region, due to the devel-
opment of maritime activities, conflicts would likely to occur between these
levels of regulations and institutions involved. Therefore, the law of the sea –
mainly the UNCLOS – may offer an opportunity to fill such governance gaps
and a common legal background, unifying the existing fragmented marine
governance in the Arctic Ocean.

By applying a teleological approach of interpretation, the objectives and
purposes of UNCLOS could be a reference in building an appropriate gover-
nance of the Arctic Ocean. The UNCLOS is intended to be interpreted in a
dynamic and evolutive manner, according to changing situations. Concerning
the management of the marine environment, common interests – particularly
common regional interests – have always been a driving force for regional coop-
eration under UNCLOS, especially on governance matters of shared marine
areas, and resources and facilitate consensus building. The Part XII of UNCLOS
offers this opportunity to use a teleological interpretation of the Convention
regarding its general wording. Juge Weeramantry, in his separate opinion on
the Gabčíkovo-Nagymaros case refers to the ‘contemporaneity’ in the applica-
tion of environmental norms, which looks ‘to the greater interests of humanity
and planetary welfare’ and not ‘operate as though they were frozen in time

<footnote n="59">59 About this notion, see Ana Flavia Barros-Platiau and Sandrine Maljean-Dubois, “Chapitre 2. La Gouvernance Globale de la Biodiversité en Haute Mer. Enjeux Juridiques de Franglementation et Defragmentation,” in *Les Politiques de Biodiversité*, eds. Daniel Compagnon et al. (Paris: Presses de Sciences Po « Académique », 2017), 50.</footnote>
when the treaty was entered into force.’<fnref n="60" /> Interpreted in such a manner, the UNCLOS urges States to establish an ocean governance, in general, based on mutual understanding and cooperation. Providing that UNCLOS is the legal framework, the teleological approach would allow the consideration of environmental interests not mentioned in UNCLOS but in line with its object and purposes.<fnref n="61" /> This approach could be a basis to fulfil the main goals for the Arctic Ocean governance, in facing climate change issues.<fnref n="62" />

Thus, it can be seen that the law of the sea entails to promote mutual understanding between states. For the Arctic region, it goes beyond coexistence and traditional means of cooperation. It might build a sort of socialization of the law of the sea in the Arctic. This process of socialization implies the participation of all stakeholders and users in an appropriate framework. It stresses the crucial role of non-state actors as policy actors, representing one or another interest or group of interest; and it promotes the use of different means of cooperation which broaden actors involved. This representation is linked to the fact that, on the one hand, the Arctic governance could not be separated from global and semi-global governance tackling issues that take place in the Arctic region;<fnref n="63" /> and on the other hand, the situation concerning maritime delimitations is frozen between Arctic coastal states. In that sense, the role of the Arctic Council was important as a policy body, especially concerning its growing scientific understanding of environmental issues or climate change in the region<fnref n="64" /> and its innovative policy measures to tackle new issues and challenges.<fnref n="65" /> But it lacks powers to adopt, implement and enforce mea-

<footnote n="60">60 International Court of Justice (ICJ), *Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia)*, Separate Opinion of Juge Weeramantry, ICJ Report, 1997, 118.</footnote>

<footnote n="61">61 Concerning the teleological approach and environment-related matters, see Fouad Zarbiev, ‘L’Interprétation Téléologique des Traités Comme Moyen de Prise en Compte des Valeurs et Intérêts Environnementaux’, in *La Circulation des Concepts Juridiques: Le Droit International de l’Environnement Entre Mondialisation et Fragmentation*, ed. Hélène Ruiz Fabri and Lorenzo Gradoni (Paris: Société de Législation Comparée, 2009), 199–242. See in the jurisprudence, for example, *ITLOS, ‘Volga’ (Russia Federation v. Australia)* (Prompt Release, Judgement), *ITLOS Report*, 2002, para. 77.</footnote>

<footnote n="62">62 Those goals are mainly the economic development, the proper management of the Arctic environment, the political stability and social cohesion. See Geiselhart, “The Course Forward for Arctic Governance,” 173.</footnote>

<footnote n="63">63 Timo Koivurova, “The Current and Future Role of Non-Arctic states in Arctic Governance,” in eds. Akiho Shibata et al., *Emerging Legal Orders in the Arctic: The Role on Non-Arctic Actors* (London: Routledge, 2019), 11–26.</footnote>

<footnote n="64">64 Peter Taksøe-Jensen, “An International Governance Framework for the Arctic: Challenges for Public International Law,” ZaöRV 69 (2009): 632.</footnote>

<footnote n="65">65 See Timo Koivurova, “Polar Regimes Tackling Climate Change,” in *Polar Law Textbook II*, ed. Natalia Loukacheva (Copenhagen: Nordic Council of Ministers, 2013), 65–75.</footnote>
sures. Therefore, states cooperate when needed through bilateral agreement or by involving non-Arctic states such as in the case of the CAOF Agreement, creating a dynamism in the production of norms but also reinforcing their implementation by avoiding any structural limits of an international organization.

Finally, in the time of negotiation of an international legally binding instrument on governance of biodiversity beyond national jurisdiction to implement UNCLOS, the question of new perspectives of the law of the sea are at stake. Considerations diverge on whether this new instrument could be applied or not to the Arctic Ocean. Moreover, some key principles and concepts relating to ocean conservation and management like the ecosystem-based management approach, area-based management tools, for example, are under discussion. It would be interesting to see how this instrument would contribute to the Arctic Governance considering, of course the balance between the global and the regional approach.<fnref n="66" />

## 6 Concluding Considerations

This paper has shown how, the UNCLOS plays a key role in the Arctic Ocean governance and at the same time is a part of a complex regime. This is further complicated by the fact that not all Arctic states are party to UNCLOS, even though many UNCLOS's provisions are considered as part of customary law.

This paper has also noted that, Arctic States are unwilling to relinquish sovereignty and sovereign rights to a new binding regional regime. So, as Stokke proposes, a “flexible approach to norm-building” within existing frameworks appears to be a likely way to move forward on difficult international issues and improve governance.<fnref n="67" /> That is to say to highlight the importance of international legal framework as such as UNCLOS to address upcoming issues in the region by reinforcing cooperation between Arctic States and non-Arctic States and in doing so “offering a potential model for building collaborative measures and avoiding a lowest common denominator approach.”<fnref n="68" /> This collaboration

<footnote n="66">66 De Lucia, “The BBNJ Negotiation and the Ecosystem Governance of Arctic,” 6–10.</footnote>

<footnote n="67">67 Stokke, “A Legal Regime for the Arctic? Interplay with the Law of the Sea Convention,” 408.</footnote>

<footnote n="68">68 Clive Schofield, Tavis Potts and Ian Towsend-Gault, “Boundaries, Biodiversity, Resources, and Increasing Maritime Activities: Emerging Oceans Governance Challenges for Canada in the Arctic Ocean,” *Vermount Law Review* 4 (2009): 54–55.</footnote>
between States, involving this 'loose Arctic legal framework'<fnref n="69" /> could improve
this unique type of governance in the Arctic region, driven by a broader set of
interest, among which common interest, and providing ambitious responses
to address climate change, comparing to the Antarctic Ocean governance.

<footnote n="69">69 Elisabeth Burleson, “Polar Law and Good Governance,” in *Routledge Handbook of International Environmental Law*, eds. Shawkat Alam et al., (London: Routledge, 2013), 536.</footnote>