Current Developments in Arctic Law
Volume: 9 (2021)
Editor: Kamrul Hossain
Publisher: University of Lapland
Current Developments in Arctic Law is produced in cooperation within UArctic
Thematic Network on Arctic Law© UArctic Thematic Network on Arctic Law
Current Developments in Arctic Law is licensed under the Creative Commons
Attribution 4.0 International License

Cover: Zofia Hyjek

ISSN: 2343-3418

Table of Contents
Editor's Note ...................................................................................................................................... 1
Kamrul Hossain
Finland’s plans of the Arctic Ocean rail line are buried deep beneath the ice – orare they really? ........................................................................................................................ 4
Juho Kähkönen & Soili Nystén-Haarala
The Polar Express Submarine Cable: The First Transarctic Cable and Security
Concerns in the Arctic……………………………...………………………………………7
Daria Shvets
Marine Autonomous Ships in the Arctic: Prospects and Challenges ........................ 15
Sabrina Hasan
Multilevel Governance and Interregional Cooperation in the Arctic and North....20
Juha Saunavaara & Marina Lomaeva
A Note on U.S.-China Cooperation in the Arctic: Opportunities and Challenges..26
Yuanyuan Ren
Russia's current Arctic policy and law……………………………………………..…..42
David Baramidze
Schrödinger’s Euro-Arctic: The New Arctic Policy of the European Union and theLimits of Arctic Exceptionalism…………………………………………………………48
Stefan KirchnerITrade Law and the Protection of the Arctic Environment
The legality of Norway’s proposed heavy fuel oil ban under the General
Agreement on Tariffs and Trade………………………………………………………..54
Emily Tsui
Promoting sustainable investment in the Arctic: the role of the Arctic Investment
Protocol and the Arctic Economic Council’s Code of Ethics………………………….74
Federica Cristani
Traditional cultural expressions: challenges of the Russian Intellectual property
law for indigenous communities of the Russian North ............................................... 78
Pavel Tkach
Balancing Indigenous Rights and International Environmental Concerns in Polar
Bear Management: New Developments in Canadian Modern Treaty Contexts…..89
Dwight Newman, QC & Gabrielle Robitaille
Exploring gender equality among caregivers: a sub-study based on the Nordic
network……………………………………………………………………………………...97
Shahnaj Begum, Päivi Naskali, Minna Zechner, Marjo Outila, Eva-Maria Svensson,
Lena Wennberg, Joan R. Harbison, Arnrún Halla Arnórsdóttir &Trine Kvitberg

IIaffairs, contributing to geopolitical

Editor's Notetensions among actors within andbeyond the region. Governance of the

A Bottom-up Approach to Arctic

Arctic is often viewed in terms of theGovernance: Making local voices

state actors' interests, which have been

heard in higher-level policy decisions

criticizedMore significantly, the processes ofnegative and positive, dominate any

governance in place overlook the Arctic

discussion on the Arctic today. Clearly,

subjects, who are directly affected by

the region faces an environmental

the ongoing transformation of theupheaval, with climate change theregion.

main driver of this transformation.
Among the challenges confronting the

The physical space of the Arctic is

Arctic are a disproportionate rise incomposed of the circumpolar territories

temperature compared to the rest of thefastermelting

of

sea

of

ice,

national

jurisdiction.

Human

settlements within the Arctic include

and a proliferation of infrastructural

local

projects undertaken in partnershipdiverse,traditionalandIndigenous communities, making thewith rising economic powers. These

region unique. However, the statesdevelopments hasten climate change

administering the Arctic territories areand bring negative environmental

often guided by national priorities, andconsequences for the region and its

tend to disregard unique regional

population. To be sure, some of theinterests.

consequences cited – increased trade,andstates

The central Arctic Ocean lies beyond

andintercontinental trade and investment;

investment

sovereignrights up to certain limits in the ocean.

shore resource extraction; an increasetransportationeight

the states have coastlines and sovereign

the Arctic Ocean; a surge in on- and offmaritime

thesurrounding the Arctic Ocean. Five offacilitating the transit of ships throughinunbalanced,

disproportionate and unsustainable.

The impacts of climate change, both

globe;asStates

also

fail

to

acknowledge the differences between

infrastructure

their Arctic and non-Arctic territories;

development – contribute to economic

all Arctic territories are administeredprosperity and the region-building

from capitals well to the south of theprocess. Yet they also entail risks, for

Arctic Circle.

they bring external powers into Arctic
1

The

prevailing

Arcticgovernanceto influence the decisions made. This

framework is built on a set of national

approach then ensures the actors’

and international regulatory tools andendorsementofnorms,

policies,

accompanied by interstate institutional

procedures

andpractices,

therebyco-operation frameworks, one example

makingbeing the Arctic Council. As it stands,

meaningful and effective governancethis structure embodies a primarily

framework requires tools to identify

top-down approach to governance, one

specific challenges, adopt strategies

disregarding the norms and values

and actions through negotiations, androoted within and among the Arctic

contributesocieties and the people living in theregulatory frameworks. The notion ofregion.

governancegovernance calls attention to “thesuffers from a lack of adequate

capacity for making deliberate choices,knowledge

revising and employing knowledge forConsequently,on

distinctive

socio-

them

to

A

norm-building

makingconsequences; everyday needs andorganizing collectively to navigate

challenges; and the interrelationshipchallenges and opportunities.” 1 In

betweentheother words, it is a process in which

region’s pristine environment. Unless apeople, communities and groups canbottom-up

integrated

participate, and one which these actors

governancealso have an opportunity to change andwithinnatureapproachtheArcticisandchoices,forcultural, economic and environmental

people,those

accountable.

and

for

framework, policy choices in governing

shape.

the region will prove to be ill-informed

governance entails more than just theand arbitrary.

official institutionalization of legal

At

the

end

of

the

day,

processes; it is also about inclusion of
In general terms, governance refers to

the voices of those directly affected andco-ordinated social functions to direct

seeing to it that those voices are

or guide the actions of groups of people

reflected in policy decisions.

at all levels – from local communities tointernational society – towards a

The institutional structure of Arctic

common outcome. In such a process,governance, one institution being theactors having the power of decision-

Arctic Council, recognizes Indigenous

making interact with other players andpeoples’ participation, which is indeed

processes in formal and informal roles

a step forward. Yet, over three million

1

Arctic Resilience Report 2016, the Stockholm Environment Institute and the Stockholm ResilienceCentre, pp. 129-130.

2

people, a full 90 per cent of the region’s

trade law and the Arctic marine

population, remain largely voiceless inenvironment; sustainable development

institutional settings. In 2019, local

and the Arctic investment protocol;

leaders from thirteen Arctic cities

Indigenous peoples’ rights from theformally

viewpoint

inaugurated

formallyof

traditional

culturalinaugurated the Arctic Mayors’ Forum

expression as embodied in Russian(AMF), an institutional structure tolegislation; environmental concerns inprovide local citizens a voice in Arctic

the Canadian polar bear regime; anddevelopment. This marked a significant

gender equality among caregivers inadvance in bottom-up governance. As a

the Nordic Arctic.

transregional
promotesstructure,bottom-up

the

AMF

inclusionof

The contributions compiled in thevoices to democratize the structure ofvolume are not peer-reviewed, andgovernance in the Arctic. The task

opinions expressed in the papers areahead is to create a better policy for

those of the individual authors. This

coordinating efforts toward inclusive

qualification notwithstanding, I hope

Arctic governance.

that the articles will engage scholars aswell as members of the general public
Current

and foster an interest in learning about

Developments in Arctic Law (CDAL)

Arctic law and policy. I am grateful tocomprises twelve papers, academic andall the contributors for their insightful

non-academic alike, touching upon athoughts and deliberations. I sincerely

range

providingthank Ms. Punam Noor for her

insightful information on Arctic law

technical support in putting the papers

and policy today. The contributions

together and formatting them for thedeal with the following: the proposedvolume.

The

Arcticpresent

ofvolumeissues

Ocean

of

and

railroad;

security

concerns relating to the transarctic

Kamrul Hossain

submarine cable; challenges posed by

December 10, 2021

and prospects for autonomous marine
shipping in the Arctic; issues related tomultilevelgovernanceandinter-

regional cooperation in the region;
geopolitical perspectives on US-China
cooperation and the European Union’srole in the Arctic; the link between
3Finland’s plans of the Arctic Ocean

authorities. According to the Ministry,rail line are buried deep beneath thea route to the Arctic Ocean would

ice – or are they really? *strengthen Finland’s security of supply
and

from

approximately

Lapland to Norwegian ports, either

connection to the ice-free Arctic Ocean.

Kirkenes or Tromsø. One suggested

In the peace agreement with the Soviet

connecting the Russian railway system

Union in 1944, Finland lost thisto the Kola Peninsula. Additional twoconnection. Since then, discussions

alternatives

have from time to time popped up on

pass

throughNarvik. In the bigger picture, the Arctic

to the High North. Melting of the Arctic

Ocean railway is tied to the vision ofsea ice has strengthened the desire to

being connected with the European

gain more substantial logistical accessrailway network through an undersea

to the Arctic Ocean. Often thesetunnel from the capital city Helsinki todiscussions have included visions of

Tallinn, Estonia. The access to thethe Arctic Ocean rail line.

Arctic Ocean would open a connection
to the Northeast Passage, shortening

The latest attempt to open a railway tothe distance from Central Europe to

the Arctic Ocean started in the early

Chinese ports considerably. However,2010s. An important step was the year

only if and when the ice would melt.

2017 when the Finnish Minister ofCommunication

These Arctic railway plans gained

requested to explore the possibilities ofplenty of attention nationally anda new Arctic railway in cooperation
Norwegianwould

Sweden to the Norwegian harbour

how Finland could develop its logistics

the

(one

them would cross the region ofWar, Finland had a port and a direct

withbillion

There were several options. Two of

Arctic Ocean. Before the Second World

and

two

thousand million) euros.

thenorthernmost Norwegian ports of theTransport

logistical

the projected cost to Finland was

Northern Finland is located only a few
kilometres

Finland’s

position and accessibility. At that stage,

Juho Kähkönen ** & Soili Nystén-Haarala ***dozen

improvelocally. Interest groups of severaltransport

industries and the Regional Council of*

Authors work on the JustNorth project (Horizon 2020).

**

Researcher, Faculty of Law, University of Lapland***

Professor of Commercial Law, especially Russian Law, University of Lapland, Faculty of Law.
4

active

Transportation and Communication

supporters of the megaproject. The

took a mainly neutral stance on the

Sámi Parliament, Reindeer Herders´Arctic railway. The Regional Council of

Association and several northernmost

Lapland,municipalities opposed the project,municipalities, remained the leadingwith the support of non-governmental

supporter. However, the northernmost

organizations, such as Greenpeace.

municipalities have mainly continued

Lapland

were

among

the

representing

Lapland’s

their opposition towards the planned
railway.

The main arguments for the Arctic
railway

includednewbusiness

opportunities and strengthening of the

The Arctic Ocean rail line suffered anational

significant setback after the redraft ofsecurityofsupply.

The

opponents argued the megaproject´s

Laplandnegative impacts on the indigenous

accepted by a vote of 43 to 3 in the

Sámi

culture,

plans

was

to

traditional

Regional Council of Lapland. The voteespeciallyreindeer

was supposed to mean the end of

herding, as well as the local ways ofrailway planning. However, Markus

living. The confrontation was visible in

Lohi, the Council Chair, confirmed the

public discourse and demonstrations

decision, which overrode the earlier

against the rail line gained much

will of the Board of the Regional

attention. The line from the NorwegianCouncil to continue the planning

port of Kirkenes through the Sámi

process in a slightly obscure way:

Homeland to Rovaniemi was the“Because the will of the council was so

primary option. It was calculated tobroad, the Lapland Regional Council will

cost less for Norway and would havenot support the Arctic Ocean route […] In

supported the development of thethe light of current information, the Arctic

Kirkenes harbour.

Ocean line is not economically viable, andlivelihoods,

risks

development

it won’t become so in the near future either.
The controversial project lost much of

However, it could happen in the coming

its national support after the Finnish-

decades. (The Finnish Broadcasting

Norwegian working group announced

Company

in its report in 2019 that the potential

council scraps plans for controversial

volumes of cargo would be too small to

Arctic rail line | Yle Uutiset | yle.fi=”).

justify the high costs of the railway.
After the report, the Finnish Minister of5

Yle

19.5.2921

LaplandMap. The Arctic railway transit corridor. Foto: Arctic Corridor

A few months later, on the 15th ofanalysis yet exists, and the planning is

October 2021, The Regional Council ofat an early stage. Critics claim the new

Lapland announced a new proposal

loop railway plan is only a trick to getthat did not surprise those who had

the existing railway further north, afollowed the Finnish Arctic railway

step closer to the melting Arctic Ocean.

plans for decades. It suggested a new

Either way, the rail line plans continue

railway plan that would be a loop not

to divide the local communities.

entering

the

Sámi

insteadconnecting

homelandthebutexisting‘‘Critics claim the new loop

northernmost railways in Kolari and
Kemijärvi.

This

new

loop

would

railway plan is only a trick to getconnect the municipalities of Kittilä

the existing railway further

and Sodankylä to the existing railway

north, a step closer to the melting

network in Kemijärvi and Kolari.

Arctic Ocean.’’According to the Regional Council of
Lapland, the railway would foster
tourism, mining, and forestry. No cost

6

The Polar Express Submarine Cable:

alreadyThe

successfully

First

Transarctic

Cable

and

Security Concerns in the Arctic

severalexamplescompleted

short

of
line

projects in the Arctic. Also, various big
scale projects were planned to cross the

Daria Shvets*

ArcticIntroduction

firstdevelopment

every

year.

From

the

key

communications

local

telecommunications

elements
growthistransarctic

cable

enteredto change the Arctic future and extend
intheArctic.

However, apart from benefits to bebrought by this cable to the north 1, it

states officials and foreign investors,ofnotfibre optic line. This project is plannedofcommunities´ representatives to Arctic
one

were

construction phase – the Polar Express

telecommunications in the Arctic is
growing

finally

implemented. The summer 2021, theThe interest of various stakeholders in
the

but

may also raise several security concernsofto the unique Arctic region. This article

anaims at bringing a light on such security

extension of submarine cables network.

aspects and provides the updated

In contrast to densely populated areas

picture on submarine cables’ in thewhere thousands of kilometers ofArctic.

cables are laid, the installation of cablesin the Arctic is a pioneer industry. Due

Submarine cable projects in the Arctic

to severe climate conditions such as
extreme temperatures, ice covered

Government officials from Arctic statesareas, non-accessibility of cable ships tohave expressed the hope that the Arctic

the region and inexpediency of laying

shall benefit from new fibre optic

cables for small rural communities, forinfrastructure,

a long time laying a cable in the Arctic

includingsubmarine

cables 2. With the establishment of thewas not considered feasible. However,Task Force on Improved Connectivity

this is changing with more and more
projects coming to the region. There are* Universitat Pompeu Fabra, Public International Law department (Barcelona, Spain).
1

M. Salmnen, G. Zojer, K. Hossain, “Comprehensive Cybersecurity and Human Rights in the

Digitalising European High North”, in M. Salminen, G. Zojer, K. Hossain (eds.), Digitalization and
Human Security, A Multi-Disciplinary Approach to Cybersecurity in the European High North,
Switzerland: Palgrave Macmillan, p. 29.
2

Final report: Rovaniemi Ministerial meeting - 7 May 2019, ‘Improving Connectivity in the Arctic Arctic

Council Secretariat’, 2019, p. 22.
7

in the Arctic in 2017 3 the improved

telecommunications

connectivity

accordance with submarine cables

became

one

of

the

priorities for the Arctic development

companiesin

regulation under international law 6.

agenda. In May 2021, Foreign Ministersof the Arctic States, at the 12th

One of the first lines completed in the

Ministerial meeting of the Arctic

Arctic was Svalbard Undersea Cable

Council,

System laid in 2004 with the purpose to

adopteda

Reykjavik

Declaration where they highlighted

connect

among the priorities the development

mainland. An important remark is thatof resilient infrastructure such as

laying a cable in the Arctic requires theconnectivity in the Arctic 4. Since thepresence of a special cable ship suitable

Russian Federation has recently taken

to navigate and lay a cable in the cold

the chairmanship in the Arctic Council

Arctic waters that makes the projectfor several upcoming years in its

implementation

strategy until 2023 titled “Responsible

than cable installation in another area.

governance for a sustainable Arctic” it

Also, a concern was expressed by thehas announced the development of

Arctic Council that “providers need totelecommunications systems for theselect their submarine fiber routes

wellbeing and prosperity in the Arctic 5.

carefully, given the risk of ice scour inThat said, there is a continuously

some areas, and to ensure reliablesupported interest in submarine cables

service backup plans to carry end-development followed by the practicalusers” 7. Another project performed in

implementation2009 was the Greenland Connect cable

3

from

several

Svalbard

with

more

NorwaycomplicatedSee more at https://www.uarctic.org/news/2019/5/task-force-on-improved-connectivity-in-the-arctic-

tfica-report-improving-connectivity-in-thearctic#:~:text=At%20the%20Arctic%20Council%202017,and%20to%20work%20with%20the4

REYKJAVÍK DECLARATION, 20 May 202 Arctic Council Secretariat, 2021, Paragraph 15, available atthe the Arctic Council’s open access repository: oaarchive.arctic-council.org.
5"Responsible Governance for Sustainable Arctic", RUSSIAN CHAIRMANSHIP 2021-2023, paragraph

5 ‘Socio-economic development’, available at https://arctic-council.org/about/russian-chairmanship-2/.
6

Read more about the legal regulation of submarine cables under international law in D. Shvets, “The

Legal Regime Governing Submarine Telecommunications Cables in the Arctic: Present State andChallenges”, in M. Salminen, G. Zojer, K. Hossain (eds.), Digitalization and Human Security, A MultiDisciplinary Approach to Cybersecurity in the European High North, Switzerland: Palgrave Macmillan
pp. 175-203.
7

TELECOMMUNICATIONS INFRASTRUCTURE IN THE ARCTIC a circumpolar assessment, Arctic

CouncilSecretariat,

2017,

available

http://library.arcticportal.org/1947/1/2017-04-28-

at

ACS_Telecoms_REPORT_WEB-2.pdf.
8system connecting Canada, Greenland

project has progressed as planned andand Iceland. In 2017 Greenland Connect

the funding for this phase has been

North cable followed. The line is locatedsecured, it was decided by stakeholders

on the west coast of Greenland,

to put the development project on holdconnecting small towns there 8.

as it was announced in May 2021. The
Quintillion Submarine Cable System wasseveralinitially planned to connect Tokyo withinitiatives to lay the transarctic cable

London and be performed as a long line

have been developed. The first is

crossing the Arctic. However, it was not

ROTACS (Russian Optical Transarctic

fully implemented as initially planned

Cable System) to connect Tokyo andand

London emerged in early 2000s. The

accomplished resulting in a cable line

planned length was 16.000 (sixteen

connecting small towns on the west

thousand) kilometers but this projectcoast of Alaska 9.

Apart

from

local

lines,

only

the

first

stage

was

has not entered into the construction
phase. Another project was Polarnet

The Polar Express fibre optic line

Cable Project. In the framework of thisproject an extensive marine survey

Among all the projects to lay a cable

operation was conducted and from thatacross the Arctic, only the cable Polartime it became clear that such a long

Express 10 entered an actual construction

cable line may be installed in the Arctic.

phase. This is the unique project

The project was under discussion forof a transarctic submarine fiber-optic

about 10 years however, received nocommunication line with total length

furtherdevelopment.

The

Arcticof 12,650 (twelve thousand six hundred

Connect

Project cablesystem wasfifty) kilometers. The project will

initiated by Finnish company Cinia andconnect

Murmansk

to Vladivostok

Russian telecom company Megafon toalong the shortest route from Europe

connect Norway with Tokyo. Even

to Asia. In contrast to previous cablethough the development phase of the

projects, the interesting feature of thisFor the visual reflection of submarine cables in the Arctic as well as in other regions see Submarine

8

cables map by Telegeography, available at https://www.submarinecablemap.com.
9D. Shvets, “The Legal Regime Governing Submarine Telecommunications Cables in the Arctic: Present

State and Challenges”, in M. Salminen, G. Zojer, K. Hossain (eds.), Digitalization and Human Security,
A Multi-Disciplinary Approach to Cybersecurity in the European High North, Switzerland: Palgrave
Macmillan, p. 187, pp. 175-203.
10

See updated information on the Polar Express submarine cable official website, available at https://xn--e1ahdckegffejda6k5a1a.xn--p1ai/.
9cable is that it appears to be fully state-

The Polar Express cable aims to provide

driven: owned, installed, and further

the geographically shortest route formaintained by the Russian Federation.

telecommunications

Ministry of Transport of the Russian

Europe, Asia and America and thereby

Federation and the Federal agency forminimize the delay in the transmission

maritime and river transport areof information, to develop the port

customers of this project. Federal State

infrastructure of the Northern Sea

Unitary Enterprise Rosmorport acts asRoute and form the digital ecosystem oftheOperator

the region as well as expand theisinternational

Contractor/developer.

Marsat(Morsviazsoutnik)

FederalState

Finally,

Perspective

Unitary

alsoEnterprise.

traffic

betweeninfrastructureofbackbone fiber-optic communication

Technologies

lines.

Agency joint-stock company engaged
as a contractor to install the cable is the

Security concerns

only stakeholder that does not appear
to be fully state owned. However, thisAfterunderstanding

fact does not change the legal title on

picture of cable projects in the Arctic,

Polar Express submarine cable system.

the next point to address is security

After the completion of works, theconcerns that may rise in connection toownership and maintenance rights of

the activity of submarine cables laying

the cable will fully belong to the state.

in the Arctic, especially in the light of

The Polar Express cable is alreadytheunder construction and planned to beconstruction.

completed in 2026. First 4 kilometers ofparagraphs

the cable line were laid this summer.

concerns

thisAlso, this cable is being laid in thealthoughisframework of the Russian Arctic

perhaps, several other positions may be

strategy until 2035 signed by theadded.

Polar

Express

the

cable

The
list

under

following

severalauthorrelevant

security

formulates,

non-exhaustive

and,President of the Russian Federation. 11

11

Decree of the President of the Russian Federation dated 26 of October 2020 №645 ‘On the strategy ofdevelopment of the Russian Arctic zone and ensuring the national security until 2035’ contains
directions of development, steps and programs to be implemented by the Russian Federation in the
Arctic. Paragraph 13 (п) of the strategy mentions the development of transarctic fibre optic line
connecting biggest ports and settlements in the Russian Arctic that highlights the priority andsignificance of this project for the Russian Federation.
10

The first would be scientific concern.

with the help of submarine cables

After the construction of the Polarmight be limited in access and even

Express cable, the Russian Federation

marked as ‘secret’ should the Russian

will exercise total control over the cableFederation require so. Even in the caseitself and its infrastructure underof

domestic law. Since the Polar Express

cooperation, the exclusive jurisdiction

cable is planned to be laid very close toand state ownership of the cable might

the Russian coast, it would fully fallresult in delays and bureaucratic

into the Russian jurisdiction according

procedures to obtain permissions andto the international law of the sea 12. Not

licenses

only the cable itself but also all the

initiated by foreign scientists.

willingness

for

to

such

sensors

scientificinstallation

infrastructure, including, for instance,
landing stations. It might raise concern

The next concern would be a geopoliticalfrom the scientific point of view. Cables

concern. No doubt, the Polar Express

are known for their contribution tocable will strengthen the connectivity

scientific research by accommodating

infrastructure not only of the north but

variousmeasuring

the whole Russian telecommunications

temperature, salinity, and other ocean

by bringing the possibility to reroutecharacteristics. There might be a risk ofdata flows. However, there is the othernoncooperationside of the coin. It may contribute tosensorsfromtheRussiangovernment possessing the ownership

Russian’son the Polar Express cable in sharing

During last years the idea of creating

scientific results since the exclusivity of“Runet”, the closed Internet space forresults might have an extraordinary

Russian citizens only, to be separated

value. The Arctic still keeps manyfrom the world web has been actively

secrets and some areas of scientificpromoted by the Russian government.

research remain under discovered. The

Thereunique data and knowledge obtained

announcements

12

isolation

were

in

severalbycyberspace.

steps 13

andgovernment

According to the United Nations Convention on the Law of the Sea 1982 the ocean is divided into

several maritime zones where coastal states may exercise certain rights and freedoms but
simultaneously are subject to various obligations. The logic employed by the convention is that closer
the maritime zone is located to the coastal state’s shore, more rights it is entitled to exercise (territorial
sea by way of example). In contrast, the far maritime zone is located from a coastal state, less rights andfreedoms it has (for instance, the high seas as maritime zone not belonging to any state and reservedfor peaceful purposes).
13

One of the legislative steps for the “isolation” of the Russian Internet was the adoption of Federal

Law dated 1st of May 2019 №90. It foresees the creation of the internal infrastructure allowing networks
11officials towards it. The very aim of it isconnected to other fibre optic lines toto ensure Russian independence from

actually connect Europe and Asia. This

the outside world should threats inis the very idea of laying a transarctic

cybersecurity appear. The Russian

cable, to reduce distance and increase

telecommunications

agencyspeed of connections by rerouting

Roskomnadzor already has extensive

flows. It was confirmed by the General

powers to block or decrease the speed

Director of Morsvyazsputnik, that it isofinstance,

possible to attract foreign partners totwitter, facebook, linkedin) that may

the project and create lines that willappear a threat in the opinion of thisconnect the Murmansk Region withauthority to Russian cybersecurity.

Europe and the Primorsky Territory

Installation of the Polar Express cablewith Asia 15. Nevertheless, the attraction

may contribute to the closeness of theof foreign partners won’t change theRunet as there will be more capacity to

governance over the Polar Express

run the Internet independently without

cable in the Russian waters and there isany foreign dependence, using Russian

a possibility of controlling and copying

analogues and internal resources. The

data coming through the cable since no

Deputy Chairman of the Security

external control might be exercised.

Council of the Russian Federation,

Although practices of spying andDmitry Medvedev, announced that

listening through special devices areeven if the likelihood of disconnecting

practices dated back to the previous

Russia from the global network exists,

century and war times, it is not possible

the country is ready for it .

to fully exclude this concern even in ourcertainwebsites(for

14time. The data in possession is great
Another

concerntofollowisleverage that might be employed by acybersecurity concern. For now, until thestate to promote its interests in thecable project is not completed and non-international arena.

operative, it is difficult to predict how
it will operate. However, in the future,

Then comes human security concern of

there is a probability that it will be

Arctic communities in cyberspace andoperators to be independent from foreign sources and be ready to cover any connection fault internally.
It demonstrates that the Russian Federation is ready for the total cut from Internet should thegeopolitical situation come complicated and requiring to do so.
14

Russian Gazette, 01.02.2021, available at https://rg.ru/2021/02/01/medvedev-rf-gotova-sdelat-runet-avtonomnym-no-ne-hochetsia-do-etogo-dovodit.html.
15

See the website Morskie vesti, available at http://www.morvesti.ru/analitika/1692/92097/.
12

in connection to submarine cableinstallation. Noise, vibration, damage

installation. The first transarctic cableof the seabed during the cable burial

will definitely bring changes to theaffects local flora and fauna. The same

lives of remote Russian communities

applies

living in the north. Those services that

operations, as cable faults and damages

are now considered in certain areas as

cannot be avoided. It is visible from theluxury will be available at a low costexperience of cables in other parts ofand on a permanent basis. For instance,

the world. The risk of cable damage istelemedicine,

education,even bigger in the Arctic due to coldordering goods through Internet or thewaters and moving ice. Should thepossibility of conducting high quality

cable fault happen, a cable ship shallvideoconferencesucharrive at the place of damage to fix theservices. On the other hand, it may

problem. It is not always possible forloosen the indigenous way of living,cable ships since certain areas may be

local

covered by ice and for this, services of

onlineare

traditions,among

practices

and

to

ice

the use of telecommunications and thusincreases the presence of ships in the

being more dependent on it, they will

Arctic, time for repair operations andatimpact on living organisms.

samevulnerable

time

becomemore

its

failures

and

to

are

maintenancecustoms 16. Being more accustomed tothebreakers

cable

required.

That

Finally, according to the Russian Arctic

disruptions.

Development Strategy until 2035, I.3
Environmental security might also be(ж) 17, there is an increase in conflict

included in the list of security concerns

potential in the Arctic. This might bein the Arctic. Even though the impact

titled as military security. The Strategy

from submarine cables in the Arctic

further explains that in the Arctic

cannot be compared with other morecertain strategical objects intended toharmful activities such as oil and gas

restrain the aggression against the

exploitation,

adjacent

are

Russian Federation are located 18. In

neverthelessaffected during cable

addition, there is a need to increase

16

areas

See more on human security concerns as a result of digitalization in the High North in M. Salminen,

G. Zojer, K. Hossain (eds.), Digitalization and Human Security, A Multi-Disciplinary Approach to
Cybersecurity in the European High North, Switzerland: Palgrave Macmillan.
17

Russian

ArcticDevelopment

Strategy

until

2035

in

http://publication.pravo.gov.ru/Document/View/0001202010260033.
18

Ibid, paragraph II, 5 (ж).
13

Russianisavailableatmilitary capabilities of the Armedcomplicate relations in the region

Forces of the Russian Federation in the

between the Russian Federation and

Arctic 19. Moreover, the whole section

the other Arctic and non-Arctic states.

III (19) is dedicated to description of

Several security concerns might appear

main objectives to ensure military

in relation to cable laying activity in the

security, defense and protection of the

Arctic, namely scientific, geopolitical,

state border of the Russian Federation

cyber

in the Arctic. Should the militaryenvironmental and military concerns.

conflict rise in the region (and theThis is without prejudice to any otherpossibility of military conflict exists

concern that may appear in the region.

since

exist

As a final point, the author believes that

Polar

there is still time for the Arctic Council,

Express cable would be among theas the main governing body of thetargets. The history knows cases ofArctic, to react and comprehensively

cutting cables of enemies during theaddress issues related to submarine

war

cables reaching a common conclusion

nonregulated

between

Arctictolimit

disputesstates),its

thecommunications

security,human

security,on their status, regulation, and future incapability .
20

the Arctic.
Conclusion

The author states that,

Submarine cables are getting more and‘‘there is still time for the

more attention as the infrastructure of
the future for the Arctic plays aArctic Council, as the mainsignificant role in such infrastructure

governing body of thedevelopment. The Polar Express cable

Arctic, to react andwould likely be not the only one andcomprehensively address

more cables will come to the north inissues related to submarine

the future. Arctic and non-Arctic statescables reaching a common

are equally interested in connecting toandconclusion on their status,

prolongation of lines to extend it toregulation, and future in

the

first

transarctic

cable

other regions of the world. At the same

the Arctic.’’

time, the Polar Express cable may
19

Ibid, paragraph II, 7 (т).

20

D. Colombos, The International Law of the Sea (Russian translation), edited by A. Zhudro, M. Lazarev,

translated by V. Zaitseva, N. Kuzminskiy: Moscow, Progress, 1975, p. 474.
14

Marine Autonomous Ships in theMASoperation

Arctic: Prospects and Challenges

consideration

isofalready

the

under

international

maritime community to find out the
Sabrina Hasan *answers to such questions. IMO has
already

completedtheregulation

Due to climate change and global

scoping exercise for the use of Marine

warming, the Arctic Ocean is changing

Autonomous Surface Ships. 3 However,and opening doors for commercial

little attention has been given to theshipping. The geographic nature andMAS

ecosystem of the Arctic Ocean make it

exclusively from the legal perspective

different from the rest of the oceans andto exercise states jurisdiction. Seeingseas. Falling within the category of ice-thecovered area, article 234 provides

maritime community in accepting MAS

certainstatesoperation, the question arises whether

concerning ice-covered areas within thethe prospect of MAS in the Arctic

limits of exclusive economic zone andOcean needs a revision of article 234

this article has gained much attention

and any other regulatory framework

to be tested further as a result of thefor exercising jurisdiction over MASchanging Arctic?. 1 Meanwhile, thewithin and beyond areas of national

International Code for Ships Operating

jurisdiction.

rightstocoastaloperationinterest

of

in

the

the

Arcticinternationalin Polar Waters (Polar Code) 2 hasentered into force and the prospect ofUnlike the Antarctic, the Arctic ocean is

the Marine Autonomous Ship (MAS) in

encircled by five coastal states (Canada,

the Arctic is also apparent. Starting

Denmark / Greenland, Norway /with the question to identify MAS as a

Svalbard, Russia and the United States)“ship”

legal

who have claimed exclusive economic

forzones (EEZ) in the Arctic Ocean. Article

amendments of IMO (International

234 of UNCLOS provides states with aMaritime Organization) instruments,

special right to adopt and enforce

withinframeworks*

toexisting
theneed

PhD Candidate, South China Sea Institute, Xiamen University

1 Chircop, Aldo E., Floris Goerlandt, Claudio Aporta, and Ronald Pelot. Governance of Arctic Shipping: Rethinking Risk,

Human Impacts and Regulation. Cham, Switzerland: Springer, 2020.
2 MEPC 68/21/Add.1 Annex 10. The International Code for Ships Operating in Polar Waters (Polar Code),
www.imo.org/en/MediaCentre/HotTopics/polar /Documents/POLAR%20CODE%20TEXT%20AS%20ADOPTED.pdf.
3 MSC.1/Circ.1638, Outcome of the Regulatory Scoping Exercise for the Use of Marine Autonomous Surface Ships(MASS), 3 June 2021, https://wwwcdn.imo.org/localresources/en/MediaCentre/PressBriefings/Documents/MSC.1Circ.1638%20%20Outcome%20Of%20The%20Regulatory%20Scoping%20ExerciseFor%20The%20Use%20Of%20Maritime%20Autono
mous%20Surface%20Ships...%20(Secretariat).pdf

15

environmental laws and regulations in

ice-free

ice-covered areas within their EEZs

summer by mid-century and possiblythat are more stringent than generalsooner. This could soon open up ainternational standards. Four of the five

direct shipping route across the North

Arctic coastal states have ratified thePole, linking markets in Asia, North

UNCLOS. Though the United States

America and Europe. 8 The Transpolar

has not signed the Convention but

Passage, like the Northern Sea Routegenerally accepts that the Convention

and the Northwest Passage, could bereflects customary international law. 4

appealing in a world where timing

Thus, all five coastal states are entitledmakes the difference between profit

to exercise rights under article 234 ofand loss. The Northeast Passage is two

UNCLOS within the EEZ of the Arctic

to three weeks faster than the Suez

Ocean. At the present, the central Arctic

Canal for trips between Europe andOcean, which has a significant area ofAsia. The Transpolar Passage could

high seas, appears to be inaccessible tosave two days if it crossed the Arctic

ships and can only be reached bystraight

passing through the five Arctic States'

prospect of autonomous shipping in

EEZs

the Arctic seems to receive widerorterritorial

seas

via

the

Centralthrough. 9

ArcticOcean

Meanwhile,

in

the

Northwest and Northeast Passages. 5

acceptance

from

the

However, considering the Climate

consideringthesafetyreports, during summer in the next

intermediate risks of manned ships todecades the whole Arctic may become

humans. 10 As such Aker Arctic, theice-free, 6

and

open

for

technologists
risks

or

shipping

through the “Transpolar Sea Route” 7.
Current scientific models predict an
4 See President Regan, Statement—U.S. Oceans Policy, 10 March 1983, 22 I.L.M. 464–465.

5 Hartmann, Jacques. “Regulating Shipping in the Arctic Ocean: An Analysis of State Practice.” Ocean Development &International Law 49, no. 3 (2018): 276–99. https://doi.org/10.1080/00908320.2018.1479352.
6 See IPCC, 2021: Summary for Policymakers. In: Climate Change 2021: The Physical Science Basis. Contribution ofWorking Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [Masson-Delmotte, V.,
P. Zhai, A. Pirani, S. L. Connors, C. PΘan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M. I. Gomis, M. Huang, K. Leitzell,
E. Lonnoy, J.B.R. Matthews, T. K. Maycock, T. Waterfield, O. Yelekτi, R. Yu and B. Zhou (eds.)]. Cambridge University
Press. In Press.
7 Bennett, Mia M., Scott R. Stephenson, Kang Yang, Michael T. Bravo, and Bert De Jonghe. “The Opening of theTranspolar Sea Route: Logistical, Geopolitical, Environmental, and Socioeconomic Impacts.” Marine Policy 121 (2020):
104178. https://doi.org/10.1016/j.marpol.2020.104178.
8 Bennett, Mia. “The Arctic Shipping Route No One's Talking About.” CRYOPOLITICS, April 23, 2019.
https://www.cryopolitics.com/2019/04/23/transpolar-passage/.
9 Melia, N., K. Haines, and E. Hawkins. “Sea Ice Decline and 21st Century Trans-Arctic Shipping Routes.” GeophysicalResearch Letters 43, no. 18 (2016): 9720–28. https://doi.org/10.1002/2016gl069315.
10 Bergstrom, Martin. Autonomous in the Arctic – fortune or folly? The Pace Technology, Page 58,
https://search.abb.com/library/Download.aspx?DocumentID=9AKK107045A7567&LanguageCode=en&DocumentPartId=&Action=Launch

16model autonomous ship is under in-

Initiating to magnify the laws tohousing trial for development. 11

regulate MAS under UNCLOS, the task
would be shuttered by the different

The United Nations Conventions onprovisions by their wordings, which do

the Law of the Sea (UNCLOS) 12 permits

not constitute any literal meaning thatflag states to enjoy the right ofcould comply with the specs of MAS tonavigation in the high seas having

consider them regulatable under the

exclusive jurisdiction. 13 The United

UNCLOS.

Nations Convention on the Law of theterritorial sea, where ships of all states

Sea (UNCLOS) allows flag states toenjoy the right of the innocent passage

have exclusive jurisdiction over theunder Article 17 of UNCLOS, allhigh seas and enjoy the right offoreign ships enjoy the right of innocent

navigation. The UNCLOS contains

passage, and the meaning of innocent

rules

in

passage has been further expanded indifferent zones, including “innocent

Article 19 concerning ships activities topassage”

seas

be counted as non-innocent. It is now(UNCLOS Articles 17-26 and 52), “right

crucial to determine whether Article 19ofthroughrequires the inclusion of additional

international straits (UNCLOS Article

activities that can be counted as non-38), the “right of passage throughinnocent activities to ensure the peace,archipelagic sea lanes” in archipelagic

good order or security of coastal stateswaters (UNCLOS Article 53), in theandEEZ (UNCLOS Article 58(1)) andmentions the right of coastal states to“freedom of navigation” on the highmake laws and regulations, needs to beseas (UNCLOS Article 87(1)(a)). The

more detailed and specific concerninglevel of state control over foreign-

the innocent passage of MAS since they

flagged vessels navigating in thewould enjoy the right of the innocent

variouspassage in the same way as manned

thatgovernthroughtransitnavigation
territorial

passage”

maritime

zones

is

what

Beginningwhether

Article

with

21,

the

which

ships. 15

distinguishes the various types ofnavigational rights. 14

11 Aker Arctic Technology Inc Newsletter, Model Testing of Autonomous Ships, March 2018,https://akerarctic.fi/app/uploads/2019/05/arctic_passion_news_1_2018_Model-testing-of-autonomous-ship.pdf
12 Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 397 (entered into force Nov. 1, 1994)
13 Article 90 of UNCLOS
14 Hartmann, Jacques. “Regulating Shipping in the Arctic Ocean: An Analysis of State Practice.” Ocean Development &International Law 49, no. 3 (2018): 276–99. https://doi.org/10.1080/00908320.2018.1479352.
15 Veal R, Tsimplis M and Serdy A, “The Legal Status and Operation of Unmanned Maritime Vehicles” (2019) 50 Ocean
Development & International Law 23

17

The limitations on the right of coastalin the high seas to all ships of any state.

states to adopt laws and regulations

Will this right lead to complications inconcerningarethe cases of navigation of MAS in thementioned under Article 21(2) ofArctic? Thus, it is notable to consider

UNCLOS. However, MAS will put

whether MAS shall enjoy the same

various scenarios into practice, raising

freedom of high seas in the Arctic as

the

these

other oceans or there should be some

restrictions are justified in the cases ofrestrictions or limitations. IMO might

MAS or whether IMO should adopt a

serve

common policy agreed by all states ininternational standards to be followed.

general. Stronger passage rights for

Furthermore, the requirement underships lying within territorial seas

Article 98(1) which mentions the duty offorming part of a strait used forthe master to assist any person found atinternational navigation is subject tosea in danger of being lost also needs

the regime of transit passage underrevision in the cases of MAS in the

ArticlesrequireArctic. 16 Should a ship without a masterclarification in the cases of MAS as well

be exempted from this duty or method

as under Article 35, where the straitsof radio communications would beareused to impose this duty?

innocent

question

of

37-44

passagewhetherandgovernedbyalso

longstanding

the

gap

by

settingup

international conventions.
According to Henrik Ringbom, theWhile Article 58 provides the right tolegal regime being established byenjoy the exclusive economic zone as to

UNCLOS is neither complete nor static,

Article 87, the rights and duties must be

nor it was intended to be so. 17 The

consistentand

UNCLOS provisions have prescribed

regulations of coastal states. MAS has

the general methods of balancing

not been intended to navigate only

jurisdiction over shipping and otherwithin national water but also inuses of the ocean. However, with timeinternationalthedue to the changes in practices,

jurisdiction of flag states and theapplication and interpretation of laws

freedom of seas needs to be appliedby courts and tribunals, advancement

pertinent to rules of international law.

of

Article 90 gives the rights of navigation

protection of the environment and its

with

the

water,

laws

thus,

technologies,

climatechange,16 Ringbom, Henrik. “Regulating Autonomous Ships—Concepts, Challenges and Precedents.” Ocean Development &International Law 50, no. 2-3 (2019): 141–69. https://doi.org/10.1080/00908320.2019.1582593.
17 Ringbom, Henrik. Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea. Leiden: Brill Nijhoff,
2015.

18

resources, new issues have arisenalongside the old challenges. Therefore,
there seem to be differences between
the jurisdictional arrangements under
UNCLOS and their actual application
by States. Hence, the lack of a clear andconcrete definition of the term “ship”
or “vessel” and the wordings of
UNCLOS

provision

wouldcreatechallenges while regulating MAS as
well as enforcing rights and duties.
Considering that MAS will be safer andenvironmentally friendlier than theconventional ships, it will be moresuitable for the Arctic. However, theMAS operation is already in theconfrontationoffacingregulatory

challenges under the law of the sea.
Hence, to accommodate MAS within
the legal frameworks, it is important togive attention to the prospects of MAS
operation in the Arctic including thehigh seas and the regulatory challenges
that it might face. Special consideration
should be given to the special nature of
the Arctic ocean foreseeing the MAS
operation in the Arctic high seas.

19

Multilevel

GovernanceInterregional

Cooperation

andcovered by the 2016 Japan-Russia 8-

thepoint Plan for Economic CooperationinArctic and Northand includes 8 specialized sections
corresponding to these points. One ofJuha Saunavaara * & Marina Lomaeva **thesesectionsiscalled“SDGs:

Environment, Resource Development,
to

focus

governance

and

Why

on

multilevel

Multicultural

Education”,

interregional

participants

havecooperation

and

its

demonstratedaparticular interest in the Arctic-related
matters.

A series of seminars and workshops
focusing on the multilevel governance

The intellectual premise of this series isand interregional cooperation was

the notion that international relationsorganized in 2021 (mainly online). The

and cross-border activity are not a fieldinstitutional

thisor domain that solely belongs to nation-

initiative were Japan’s Arctic Challenge

states and national governments. In

for Sustainability (ArCS) II project andfact, a wide range of actors fromthe Human Resource Development

subnational

Platform for Japan-Russia Economic

multinational companies to NGOs andCooperation and Personnel Exchange

epistemic communities are involved in(HaRP). The former includes theand possess capacities to plan andresearch program “Elucidating theimplement

Complex Dynamics of Arctic Politics

Although the increasing influence ofand Its Contribution to Japan’s Arctic

such actors on issues transcending

Policy” that has a subgroup focusing on

national borders has long attracted thenon-state actors and paradiplomacy.

attention of researchers (as manifested

The latter is an undertaking funded byby the emergence of such concepts asJapan’s Ministry of Education, Culture,

multi-level

Sports,games, paradiplomacy etc.) 1, recent

framework

ScienceandofTechnology(MEXT), which focuses on the areas

studies

governments

their

own

initiatives.

governance,

focusingonand

two-levelinternational*

Hokkaido University Arctic Research Center, juha.saunavaara@arc.hokudai.ac.jp.

**

Hokkaido University Arctic Research Center, m.v.lomaeva@arc.hokudai.ac.jp.

1

Putnam, P. (1988). Diplomacy and domestic politics: the logic of two-level games. International

Organization, 42, 3, Summer 1988; Duchacek, I. D. (1990). Perforated sovereignties: Towards a typologyof new actors in international relations. In H. J. Michelmann & P. Soldatos (Eds.), Federalism andinternational relations: The role of subnational units. Oxford; Aldecoa, F. & Keating, M. (Eds.) (1999).
20

relations and governance research infor this series was a series of thethe Arctic context argue that too muchfollowing questions:weight has been given to sovereignstates and geopolitics, and there is a



What

are

possibilities

andlack of research focusing on multi-

limitations of different actors andstakeholder collaboration, multilevel

forumsgovernance, and the role of indigenous

cooperation?

organizations and subnational entities,

for instance 2.

What issue areas are meaningfulactors?

and edited collections concerning theserecent years 3, the organizers of theseries considered it important to bringandWhat can and should be done at the
subnational level?

issues have been published during thescholars

interregional

for cooperation between non-state

Although a number of books, articles

togetherfor

Can top-down initiatives lead tofruitful cooperation at the regionalotheror local level?

stakeholders / practitioners around thesame (virtual) table. The starting point

How can national and regional
actors support local initiatives?

Paradiplomacy in action: The foreign relations of subnational governments. London; Dickson, F. (2014). The
Internationalisation of Regions: Paradiplomacy or Multi-level Governance? Geography Compass,
8(10), 689–700. doi:10.1111/gec3.12152; Kuznetsov, A. S. (2015). Theory and Practice of Paradiplomacy:
Subnational Governments in International Affairs. Abingdon: Routledge.
2

Knecht, S. and Laubenstein, P. (2020). Is Arctic governance research in crisis? A pathological diagnosis.

Polar Record, 56, e35. DOI: https://doi.org/10.1017/S0032247420000352; Tsui, E. (2020). Looking around:
Opportunities of Using Paradiplomacy Scholarship in the Arctic Discussions. InT. S. Axworthy, S.
French & E. Tsui (Eds.), Lessons from the Arctic: The role of Regional Government in International Affairs.
Mosaic Press.
3

Rowe, E. W. (2018). Arctic Governance: Power in Cross-Border Cooperation. Manchester: Manchester

University Press; Sergunin, A. (2019. Subnational Tier of Arctic Governance. In M. Finger and L.
Heininen (Eds.), The GlobalArctic Handbook. Cham: Springer; Ackren, M. (2019). Diplomacy andparadiplomacy in the North Atlantic and the Arctic – A comparative approach. In M. Finger & L.
Heininen (Eds.), The GlobalArctic handbook. Cham: Springer; Kossa, M. (2019). China’s Arctic
engagement: Domestic actors and foreign policy. Global Change, Peace & Security, 32(1), 19–38.
doi:10.1080/14781158.2019.1648406; Landriault, M., Charter, A., Rowe, E. W. and Lackenbauer, P.W.
(2020). Governing Complexity in the Arctic Region. Abingdon: Routledge; Kossa, M., Lomaeva, M., andSaunavaara, J. (2020). East Asian subnational government involvement in the Arctic: A case forparadiplomacy? The Pacific Review, 34(4).
21





What opportunities can be offered

Arctic Research Center, HaRP, ArCS II

by public-private partnerships?

project, and the UArctic Thematic
Network on the Arctic in Asia, Asia in

What can be achieved throughthe Arctic. In addition, various othermultilateral cooperation, and what

actors, such as UiT – the Arctic

role do bilateral ties play?

University of Norway, University of
Lapland, Moscow State University,

Workshop and seminar series

Khabarovsk

variousactors.

Universityof

Economics and Law, and UArctic

This series is based on cooperation
between

State

Thematic Network on Arctic Law, haveThe

contributedorganizations and projects that have

to

the

planning

and

implementation of different events.

been involved in all workshops andseminars include Hokkaido University

Table 1: Multilevel Governance and Interregional Cooperation series
Online workshop “Multilevel Governance and Interregional Cooperation: Vol.1 – The
Pacific

Arctic”

heldon

January12,2021

https://russia-

platform.oia.hokudai.ac.jp/en/event/5486
Online workshop “Japan-Russia Interregional Cooperation in the Arctic and North –TheoryandPractice”

held

on

March

3,

2021

https://russia-

platform.oia.hokudai.ac.jp/en/report/5871
Online workshop “Multilevel Governance and Interregional Cooperation: Vol.2 – The
Barents

Region”

held

on

June

9,

2021”

https://russia-

platform.oia.hokudai.ac.jp/en/report/6318
Online workshop “Sustainable Regional Development, International Cooperation and
the Protection of the Arctic Environment” held on September 14, 2021 https://russiaplatform.oia.hokudai.ac.jp/en/report/6866
International online conference “Cross-border interregional cooperation in the AsiaPacific Region as a driver for the development of the Russian Far East and the Asian
Arctic”

heldon

October

18,2021

https://russia-

platform.oia.hokudai.ac.jp/en/report/7175
Seminar on “Strengthening Region-building through Multilevel Governance andInterregional Cooperation: Urban Sustainability through the Arctic Mayors’ Forum:
Part 1” held on November 15, 2021

22

private companies, cooperating with

Key actors

environmental NGOs, and at times also
Although there has been variation aacting as a conduit for cross-border

betweendifferent

workshops

andcooperation of the actors in theseseminars(also

reflecting

the

networks with the neighboring regionsindividualin the Barents, Bering and Far East

events), most speakers and participants

regions. Most Japanese speakers, on theof the series have come from Russia andother hand, came from research centers

Japan (which was an anticipatedin the regions with a long history ofoutcome, determined by the design andparadiplomatic (sister-city and sister-

institutional framework of this series),

region) engagement with the Russian

followed by Norway and Finland. The

Far East (Hokkaido, Niigata and Kobe),

speakers represent various academic

which have also played a major part ininstitutions, local, regional and national

shaping Japan’s Arctic policy.

geographicalfocus

governments,

of

NGOs

and

privateenterprises.

This series at the intersection of the two
research avenues – the Arctic and

The Russian speakers represented notnorth-related cross-border cooperation,

only the central venerable research andand the Northeast Asian countries’

educationalas(such as Japan and China’s) cross-Saintborder cooperation with the Arctic

Petersburg State University, Moscow

countries’ regions – provided a goodState

opportunity to take stock of the actors

Moscow

institutions

State
Institute

Relations

and

(such

University,ofInternational

HigherSchoolofinvolved,

their

past

and

current

Economics) but also regional centers ofprojects and forums, which may be

the Arctic and northern research inusefulboth the western and eastern part of thecollaboration and establishing links

Russian Arctic Zone (Kola Science

between the existing networks.

instreamlining

further

Centre, Economic Research Institute of
Far Eastern Branch of the Russian

Recurrent themes and key findings

Academy of Sciences Khabarovsk State
University of Economics and Law). The

While the workshops and seminars

latter are playing a prominent role indescribed above have placed focus on

the regional networks on the Arctic-

different actors and geographical areas,

related issues, providing advice to theseverallocal and regional authorities and23

recurrent

themesanddiscussions related to the multilevel

methods that are common to

governance may be identified:different actors; how non-state
actors’ international activity isThe past, present, and future of

supported/restricted by national

different forums and organizations

governments, etc.)

supportinginternationalandinterregional cooperation in the Arctic

indigenous and non-indigenous)

to development of the Arctic andbehave contributed to the protection

achievedof the environment and how theirthrough more recent initiatives

leverage could be increased; thesuch as the Arctic Mayor’s Forumrole

and Bering / Pacific-Arctic Council,

interregional

cooperation

andenvironmental

The role of science and academic
cooperation(What can be achieved through

in

the

sustainable

development of the Arctic and northinterregional cooperation in the(Can

Arctic and north; can interregional

academic

contributecooperation act as a driver oftocommunity
theregional

development and strengthening

economic development; what is theties between different regions; howvalue of cultural exchange acrossscience-policy

national borders; does cross-borderinteraction

andindustry-academia-government

interregional cooperation provide

cooperation can contribute to thebenefits to the entire participating

sustainable development of theregions, or are these benefits only

Arctic, etc.)

felt by a small number of actors


directly involved in these activities,

Different types of settlements andprojects, and their relation to the

etc.)


NGOs/NPOs

cooperation, etc.)

The role and added value of crossborderofinternational

etc.)


actors,(How local communities (bothNorthern Forum have contributed
canregional

protection of the Arctic environment

Euro-Arctic Cooperation and the

what

and

international cooperation, and the(How initiatives such as Barents

north;

Local

sustainable development of the Arctic

Challenges attendant on cooperationand north (Should the development

between different types of non-statebeactors in the Arctic and north (How to

based

on

relatively

small

settlements, or does the Arctic need

identify objectives and working

bigger cities as engines of growth;
24

can

the

large-scale

Furthermore,industrial

theissuesdiscussed

projects, which are often based on

during the series are also going to be

the “fly-in, fly-out” model, support

included

the sustainable development, or

publication by the ArCS II program

should it be based on greater

focusing on international relations andnumber of locally owned SMEs,

cross-border cooperation. While theetc.)world is gradually opening after the

in

the

forthcoming

shock caused by the still ongoing
Althoughaimingat

COVID-19 pandemic, the experience

holistic

gained from online and hybrid events

circumpolar approach, many of theis so valuable and rewarding that we

presentations given during the series
focusedontheEurasianare most certainly going to continue

Arctic,this series in the future.

especially those concerned with theissues related to the Russian Arctic, theFar East and East Asia. The smaller

The series will continue

share of speeches elaborating on thedevelopments in the North Americanwith “Strengthening

Arctic is mainly due to the difficulties

Region-buildingof timing and time-differences between

through Multilevel

different continents (which is clearly an
issue also affecting the interregional

Governance andcooperation in the Arctic and north).

Interregional
Cooperation: Urban

Future activities
The

series“Strengthening

will

Sustainability throughcontinuewith

the Arctic Mayors’

Region-building

Forum: Part 2”

through Multilevel Governance andInterregional

Cooperation:

Urban

workshop, which is going

Sustainability

through

Arcticto be held in Tromsø at

theMayors’ Forum: Part 2” workshop,

the beginning of

which is going to be held in Tromsø at

February 2022 .

the beginning of February 2022. The
two events focusing on the Arctic cities
will pave the way for a publication of a
special issue in a peer reviewed journal.
25

of the year. 3 Finally, the two powers

A Note on U.S.-China

appeared to try to ease some tensions.

Cooperation in the Arctic:
Opportunities and Challenges

How would the Arctic navigate the
new U.S.-China competition? What are

Yuanyuan Ren ∗the effects of ongoing U.S.-China
tensions in other areas on China’s

Introduction

engagement in the Arctic? If U.S.-China
Arctic cooperation is optimal and

On March 18th and 19th 2021, the first
U.S.-China

high-level

feasible,

diplomatic

againstbackdropofdeteriorating

bilateral

relations

bestanswer these questions by focusing on

fast

three key areas in which the twocountries have opportunities to interact

between the two countries since thewith each other and develop dialogue

beginning of 2020. 1 Nevertheless, theand collaboration: (1) the application of

meeting started with angry rebukes

the United Nations Convention on theand several sanctions were placed by

Law of the Sea (UNCLOS) 4 to the Arctic

both sides after the meeting finished. 2

Ocean, with a focus on the issue of

On October 6th, 2021, the U.S. andfreedom

Chinese top officials met again inofnavigation;

(2)

the

implementation of new Arctic treaties,

Zurich, Switzerland, which resulted insuch as the Agreement on Enhancing

an agreement in principle that the U.S.

International

President Biden and Chinese President

ArcticScientific

Cooperation and the Agreement to

XI will hold a virtual summit by the end∗

thethe collaboration? This note attempts to

Alaskatheareopportunities and main constraints tomeeting of the Biden administration
took place in Anchorage,

where

Prevent

Unregulated

High

Seas

Post-doctoral Hauser Global Fellow, Visiting Scholar at the U.S.-Asia Law Institute, New York

University School of Law, yuanyuan.ren@nyu.edu.
1

Humeyra Pamuk, Michael Martina & David Brunnstrom, U.S., Chinese Diplomats Clash in First High-level Meeting of Biden Administration, REUTERS (Mar. 18, 2021), https://www.reuters.com/article/uk-usachina-alaska-idAFKBN2BA2JI.
2

See Econsult Solutions, After US and China Alaska Meeting: A 2021 Outlook for US-China Relations, Apr.

9, 2021, https://econsultsolutions.com/us-and-china-alaska-meeting-2021-outlook-us-china-relations/.
3

David E. Sanger, Biden and Xi Jinping of China Agree to Hold a Virtual Summit, THE NEW YORK TIMES(Oct.6, 2021), https://www.nytimes.com/2021/10/06/us/politics/biden-xi-jinping-china-summit.html.
4

U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S. 397 (enteredinto force Nov. 16, 1994) [hereinafter UNCLOS].
26

Fisheries in the Central Arctic Ocean;

Policy White Paper, detailing China’sand (3) China’s trade and economic

interests and goals in the Arctic. 6 Overactivities in Alaska.

the last three years, however, some
Chinese companies have experienced aSituating the Arctic in U.S.-China

few

setbacks

Relationsengagement. For instance, In July 2019,

The Arctic for Chinathe

Alaskain

Gaslinetheir

ArcticDevelopment

Corporation (AGDC) did not renew its
The diminishment of Arctic sea ice is2017 nonbinding agreement with three

opening new shipping routes andChinese state-owned companies for amaking$43 billion liquefied natural gas (LNG)

naturalresources

more

accessible in the Arctic, a dramaticdevelopment project in Alaska. 7changeMay 2021, the Arctic Connect projectthat

unprecedented

haspresented

opportunities

and

In

was suspended for further assessment. 8

challenges for both Arctic and nonArctic states. As a non-Arctic country,

Overall, there is no doubt that China

China’s contemporary involvement in

identifies the Arctic as a strategicallythe region started in the 1990s throughvaluable region for its development

its conduct of scientific research andand influence. Nevertheless, the Arctic

expeditions. In June 2017, Beijing

does not constitute a foreign priority or

introduced the Polar Silk Road, alsoa “core national interest” for Beijing.

known as “Arctic Silk Road” or “Ice

There are strong indications that China

Silk Road,” as an integral part of its Belt

is becoming more confident about its

and Road Initiative (BRI). 5 In January

participation in the Arctic. On the other2018, China released its first Arctic

hand, given its autocratic system, poor

5

See NATIONAL DEVELOPMENT AND REFORM COMMISSION & STATE OCEANIC ADMINISTRATION OF THE

PEOPLE'S REPUBLIC OF CHINA, Vision for Maritime Cooperation Under the Belt and Road Initiative, (Jun. 20,2017), available at http://www.xinhuanet.com/english/2017-06/20/c_136380414.htm.
6

See THE STATE COUNCIL INFORMATION OFFICE OF THE PEOPLE’S REPUBLIC OF CHINA, China’s Arctic Policy,

(Jan.

26,

2018),

availableat

http://english.gov.cn/archive/white_paper/2018/01/26/content_281476026660336.htm.
7

See Elwood Brehmer, AGDC President Outlines Path Forward; China Deal is Dead, ALASKA JOURNAL OFCOMMERCE (Jul. 24, 2019), https://www.alaskajournal.com/2019-07-24/agdc-president-outlines-pathforward-china-deal-dead.
8

See Winston Qiu, Trans-Arctic Cable Project Arctic Connect Comes to a Suspension, SUBMARINE CABLE

NETWORKS

(May

29,

2021),

https://www.submarinenetworks.com/en/systems/asia-europe-

africa/arctic-connect/trans-arctic-cable-project-arctic-connect-comes-to-a-suspension.
27

record of complying with international

future.

These

law elsewhere, and the potential dual

skepticism inevitably cast a shadow on

civil-military use of the projects that it

China’s

has been investing in the Arctic, thecooperation in the Arctic, including

suspicion China faces in the region is

U.S.-China Arctic relations.

bilateralsuspicions
and

and

multilateral

unlikely to be dispelled in a foreseeable

The Arctic for the United States“stepchild” to the more pressing
concerns of the U.S. security planners

The United States is an Arctic state as

and strategists. 3 The U.S. Arctic policy

well as an Arctic coastal state by virtue

has been incoherent and inconsistent. 4of Alaska. Although it has substantial

The last U.S. national Arctic Strategy

interests in the Arctic, 1 the country has

was published eight years ago by the

been behaved as “a reluctant Arctic

Obama

power.”

2

The Arctic has been aadministration, 5whichhighlighted climate change and theSee generally Congressional Research Service (CRS), Changes in the Arctic: Background and Issues forCongress, R41153, available at https://sgp.fas.org/crs/misc/R41153.pdf (last updated on 12 October 2021).
2 See Rob Huebert, United States Arctic Policy: The Reluctant Arctic Power, 2 SCHOOL OF PUBLIC POLICY(SPP) BRIEFING PAPERS 1 (2009); Andreas Østhagen, The United States as an Arctic Actor, The Arctic
Institute,
Centerfor
Circumpolar
Security
Studies(Dec.
12,2011),
https://www.thearcticinstitute.org/united-states-arctic-actor/.
3 Michael T. Corgan, US Security Policy in the American Arctic, in ROUTLEDGE HANDBOOK OF ARCTIC
SECURITY 152 (Gunhild Hoogensen Gjørv et. al., 2020).
4 For a more detailed overview of the evolution of the U.S. policy regarding the Arctic, see id, at 153-161.
5
THE WHITE HOUSE, National Strategy for the Arctic Region, May 10, 2013,https://obamawhitehouse.archives.gov/sites/default/files/docs/nat_arctic_strategy.pdf.
28
1

importanceinternationalthat combating Arctic climate change iscooperation to the U.S. Arctic policy. Itan urgent issue for the U.S. and China

was superseded by many events 6 andto collaborate and coordinate. 9basicallyofignored

by

the

Trump

administration. Between 2019 to 2021,

Taken together, the Arctic does notseveral U.S. military branches released

constitute a focal and priority issue intheir own Arctic strategies. 7 Many ofboth Chinese and the U.S. foreign

these military strategies emphasized

policies. This “low-low” status presents

great power competition and depicted

both challenges and opportunities for

China as a rule-challenger in the Arctic.

the U.S.-China Arctic cooperation: On

In short, they tend to overstate thethe one hand, when both sides return todivergence of the national interests of

the negotiating tables, the Arctic may

the U.S. and China in the Arctic,

notdownplay their shared concerns, andtherefore be put in a far-off place. On

neglect the issues where both countries

the other hand, as a low priority region

could benefit from cooperation.

for both the U.S. and China, the Arctic

gain

enoughattentionandoffers many unique opportunities for
The Biden administration is expected tothe two powers to develop cooperation

form a new national Arctic strategy. For

andexample, climate change would be very

example,likely put back on the U.S. Arctic

traditional security issues in the Arctic

agenda and the U.S. may take moreregion,leadership on the issue. Accordingly,

scientificmany commentators have suggested

environmental protection, where the8achieve

win-win

there
such

are

results.

For

many

non-

as

climatechange,research,andmarineFor instance, in May 2019, for the first time since its creation, the Arctic Council failed to reachagreement on a final declaration due to the U.S. government’s anti-climate stance. See generally Timo
Koivurova, How US Policy Threatens Existing Arctic Governance, ARCTICTODAY (Jan. 17, 2020),
https://www.arctictoday.com/how-us-policy-threatens-existing-arctic-governance/.
7 For a quick overview of these military strategies, see David Auerswald, A U.S. Security Strategy for theArctic, WAR ON THE ROCKS (May 27, 2021), https://warontherocks.com/2021/05/a-u-s-security-strategyfor-the-arctic/.
8 See Republican Senator: Expects Climate Changes as US Arctic Policy Priority with Biden Administration,
HIGH NORTH NEWS (Oct. 12, 2020), https://www.highnorthnews.com/en/republican-senator-expectsclimate-change-us-arctic-policy-priority-biden-administration; Edward-Isaac Dovere & Paul LeBlanc,
Obama Swipes at Trump for “Four Years of Active Hostility” on Climate Change in Glasgow Speech, CNN(Nov. 8, 2021), https://www.cnn.com/2021/11/08/politics/obama-glasgow-speech/index.html.
9 See, e.g., Pavel Devyatkin, “Science Cooperation with the Snow Dragon: Can the U.S. and China Work
Together on the Arctic Climate Crisis?” THE ARCTIC INSTITUTE (Apr. 15, 2021),
https://www.thearcticinstitute.org/science-cooperation-snow-dragon-us-china-arctic-climatecrisis/?cn-reloaded=1.
29
6two countries naturally share common

practices. As its international trade andinterests and concerns. Some of theseshipping

opportunities have been identified andframework, navigational freedom is

described by other authors elsewhere. 10

becoming essential to China. FON has

expand

under

the

BRI

long been vital to the U.S.’ national andBased on some new developments insecurity interests. As the sea ice melts in

the Arctic as well as the U.S-China

the summer months, there are three

relations over the last few years, thealternative

subsequent discussion chooses to focus

international trade and other needs inon three other issues in which the U.S.

the Arctic Ocean: the Northern Sea

and China could develop trust andRoute (“NSR”) between the Atlantic

cooperation, namely, the freedom ofand the Pacific north of Russia, thenavigation

theNorthwest Passage (“NWP”) throughimplementation of new Arctic treaties,

the Canadian Arctic Archipelago, andand Alaska-China economic relations.

the transpolar route (the “Central

Before proceeding it is worth noting

Route”) across the North Pole area. The

that the Arctic issues are usually notlegal statuses of the NSR and the NWP

clear-cut, and they may overlap inhave been contentious for decades. As

specific sub-issues.

a potential major user of the Arctic Sea

in

the

Arctic,shippingroutesforroutes, China is concerned with theFreedom of Navigation in the Arctic

existing absolute control of Russia and

Ocean

Canada over the NSR and the NWP in
the Arctic Ocean. Nevertheless, Beijing
ofhas been careful not to take a clear sidenavigation (FON) in the Arctic Ocean,regarding the disputes. By contrast, thethe United States and China have

U.S.

shared national interests but different

sovereignty and control of Russia andWithrespect

tothefreedomhasformally challenged theSee, e.g., Nong Hong, “How Cooperation on Climate Change, Polar Research Can Help Thaw U.S.-China
Relations,” ICAS, (May 3, 2021), https://chinaus-icas.org/research/how-cooperation-on-climate-changepolar-research-can-help-thaw-us-china-relations/; Liz Bowman & Qingchao Xu, China in the Arctic:
Policies, Strategies, and Opportunities for the Alaska, Center for Arctic Policy Studies, (Feb. 2020),
https://uaf.edu/caps/ourwork/Bowman%20and%20Xu_2020_China%20in%20the%20Arctic_Final18Feb2020.pdf; Heather A.
Conley ed., U.S-Sino Relations in the Arctic: A Roadmap for Future Cooperation, Center for Strategic andInternational Studies, (Jan. 2017), available at https://csis-prod.s3.amazonaws.com/s3fspublic/publication/170127_Conley_USSinoRelationsArctic_Web.pdf?Ri2iQmeBhGEHKyPQg0SnyeA8
U0a0xeDN; Ingrid Lundestad & Øystein Tunsjø, The United States and China in the Arctic, 51 (259) POLAR
RECORD 392 (2015).
30
10Canada over the two main Arctic

Arcticwatersbasedonhistoric

passages.

grounds. Specifically, Canada claims
that the NWP waters are its internal

The ongoing U.S.-China tension in thewaters based on historic titles and,South China Sea (SCS) also shows that

therefore, they fall under the full

the two countries have very different

sovereignty of Canada. Despite thatinterpretations of the FON rules.

Russia’s treatment of its NSR waters

Particularly, the U.S. asserts that

under the law of the sea is less clear, it

China’s historic claims within the nine-

has de facto placed the shipping of alldash line in the SCS infringe theforeign vessels through the NSR under

freedom of navigation in the region. In

its absolute control based on thethis context, how could the two

doctrine of historic waters and Article

countries

234 of UNCLOS.

develop

trust

and

cooperation to ensure and promote thefreedom of navigation in the Arctic

As mentioned above, China also claims

Ocean?

that its sovereignty over the Nansha
Islands and their adjacent waters in the

To answer this question, we need to

SCS “has been formed over a long

have a closer look into the possible

course of history.” 11 Although China

legal bases for Canada and Russia to

has repeatedly committed itself tocontrol and regulate the NWP and therespecting the freedom of navigation in

NSR. In a nutshell, there are two

the disputed areas in the SCS, it has

principal legal grounds argued bynever clarified its commitment in

Canada and Russia: historic titles anddetailed legal terms. To challenge

Article 234 of UNCLOS.

China’s various claims in the SCS, theU.S. has routinely conducted naval

Historic maritime claims and thepatrols and aerial surveillance throughfreedom of navigation

its freedom of navigation operations

In the Arctic, Canada and Russia have

(FONOPs) program in the region. 12

long asserted sovereignty over large

See, e.g., PRC Ministry of Foreign Affairs, Foreign Ministry Spokesperson Hong Lei’s Remarks on Vietnam’s
Statement on the Chinese Government’s Position Paper on Rejecting the Jurisdiction of the Arbitral Tribunal
Established at the Request of the Philippines for the South China Sea Arbitration, 12 December, 2014, available
at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1218756.shtml.
12 See generally Eleanor Freund, Freedom of Navigation in the South China Sea: A Practical Guide, Belfer
Centerfor
ScienceandInternational
Affairs,(June2017),
https://www.belfercenter.org/publication/freedom-navigation-south-china-sea-practical-guide.
31
11

Overall,although

China’shistoric

sea ice cover and the enforcement of theclaim in the SCS is quite different fromnew mandatory International Code forthe historic maritime claims in the

Ships Operating in Polar Waters (theArctic, 13 it is unlikely that China would“Polar Code”). 15 Especially, Article 234

join the U.S. to challenge the control ofis an environmental claim. However,Russia and Canada over the NSR andboth Canada and Russia have used it to

the NWP waters on the basis of historic

support their sovereign control over thetitles.

whole water areas of the NWP and the
NSR. Moreover, both countries set prior

Article 234 of UNCLOS and theauthorization regimes to permit vessels

freedom of navigation

to navigate in the waters rather thanprior

notification. 16

Furthermore,

However, to focus just on historiccontrary to the requirement of Article

maritime claims in the SCS and the236 of UNCLOS, 17

Arctic regarding the U.S.-China FON

Canada require all vessels to obtaincooperation would be to miss half theprior authorization to enter and transit

picture. Another key legal basis used

the NSR and the NWP waters. Thus, theby Russia and Canada to regulate theU.S. has repeatedly protested Russia’s

NSR and the NWP waters is Article 234

NSR regime and the Canadian Arcticof UNCLOS. The provision allows anavigation regime. In short, under thecoastal state to take unilateral action

new circumstances, how to balance theincludingandcoastal state’s responsibilities to protect

regulations to protect the “ice-covered

the maritime environment and pay due

areas” from pollution from vessels

regard to the freedom of navigation inwithin their economic exclusive zones

the Arctic waters remains highly(EEZs).
raised14

enactinglaws

To date, the Article 234 has
numerous

legalboth Russia anddebatable.

questionsespecially in light of the reduction of
A more detailed analysis of the differences between the historic maritime claims in the SCS and theArctic is provided in another article entitled “China in the Arctic Ocean and the South China Sea: Beyondthe (In)consistency Debate,” by this author. The article is available upon request.
14 See UNCLOS, supra note 4, art. 234.
15
The
text
of
the
Polar
Code
is
availableathttps://www.mardep.gov.hk/en/msnote/pdf/msin1540anx1.pdf.
16 For a comprehensive discussion, see Jan Jakub Solski, Northern Sea Route Permit Scheme: Does Article
234 of UNCLOS Allow Prior Authorization? 35 OCEAN YEARBOOK 443 (2021).
17 Article 236 excludes the category of state vessels from the coastal state’s regulation under Arctic 234.
See UNCLOS, supra note 4, art. 236.
32
13

Unlike the issue of historic maritime

presence in foreign EEZs increases inclaims, the implementation of Article

the234 and the Polar Code does notnavigation of warships could also

necessarily create legal dilemmas forevolve. 19

Beijing in terms of co-promoting thefreedom of navigation in the Arctic
Ocean. Looking ahead, it could serve asa fertile topic for U.S.-China Arctic
FON

dialogueconcerning

marineenvironmental protection and EEZ
regime in general. For instance, China
may join hands with the U.S. (andothers) to address the inconsistency ofCanada’s and Russia’s Article 234
regulatory regimes with Article 236 of
UNCLOS because this specific issue iscompletely

irrelevant

to

three

countries’ (Canada, Russia, and China)
historic maritime claims in the Arctic
and the SCS. This joint effort could also
facilitate the navigation of China’s
governmental marine scientific research
icebreakers and other vessels in the
Arctic EEZ waters of Canada andRussia.

18

Moreover, as China’s naval

future,its

positionsontheFinally, the U.S.-China cooperation
regardingtheinterpretation

andapplication of UNCLOS in the Arctic,
including Arctic FON collaboration,
could

be

developed

throughnegotiating

Memoranda

ofUnderstandings(MOUs)

joint

orstatements on some finely definedissues. In this regard, it is worth noting
that, in 1989, the U.S. and the Soviet
Union
positions(USSR)

harmonized

regarding

the

their

innocent

passage of warships in the territorial
sea. 20

Unfortunately,muchconversation on social media now often
plays

up

U.S.-China

military

confrontation in the SCS and beyond.
Only a little audience knows that thetwo countries are actually the drafters
and parties of the Code for Unplanned
Encounters at Sea (CUES). 21 Even in the

Of course, according to Article 246 (2) of UNCLOS, consent would be still needed for conducting
marine scientific research (MSR) from coastal states in their EEZs and on their continental shelves. See
UNCLOS, supra note 4, art. 246 (2).
19 See also Kimberly Hsu & Craig Murray, China’s Expanding Military Operations in Foreign Exclusive
Economic Zones, U.S.-China Economic and Security Review Commission Staff Research Backgrounder,
June
19,
2013,
availableathttps://www.uscc.gov/sites/default/files/Research/Staff%20Backgrounder_China%20in%20Foreign%2
0EEZs.pdf.
20 Joint Statement by the United States of America and the Union of Soviet Socialist Republics, Uniform
Interpretation of Rules of International Law Governing Innocent Passage, September 23, 1989, 28 (6)INTERNATIONAL LEGAL MATERIALS 1444-1447 (1989).
21 On April 22, 2014, the CUES was signed by 21 Pacific nations at the 14th Western Pacific Naval
Symposium in Qingdao, China. The text is available at https://news.usni.org/2014/06/17/documentconduct-unplanned-encounters-sea.
33
18

East Asian seas, the U.S. and China

The

have signed MOUs on Rules ofInternational

Behavior for Safety of Maritime and Air

Cooperation was negotiated under the

Encounter 22 and Notification of Major

auspices of the Arctic Council (AC)Military

Confidence-

during the U.S. chairmanship of 2015-

Building Measures Mechanism 23 to2017. The Agreement was adopted byincrease mutual trust and dialogue.

the eight Arctic states on May 11th, 2017

These existing military confidence-and entered into force on May 23rd,building measures and mechanisms

2018. 24 Since the Agreement would be

between the U.S. and China could

binding under international law andinspire the two countries to develop

the issue is significant for non-parties,

constructive

channels

theirmany non-Arctic observers in the AC,collaboration

andtrust-building

including China, were invited toconcerning navigation in the Arctic

participate in the negotiating process. 25

Ocean.

The goal of the Agreement is to

Activities

forAgreementonEnhancingArcticScientific“enhance

cooperationinscientific

Cooperation Opportunities regarding

activities

intoincrease

New Arctic Treaties

effectiveness and efficiency in the

The

AgreementInternational
Cooperation

order

on

Enhancingdevelopment of scientific knowledge

ArcticScientificabout the Arctic.” 26 According to theAgreement, if scientists coming from

Memorandum of Understanding between the Department of Defense of the United States of American and theMinistry of National Defense of the People’s Republic of China Regarding the Rules of Behavior for Safety of Air
andMaritime
Encounters,
November
10,
2014,
availableathttps://dod.defense.gov/Portals/1/Documents/pubs/141112_MemorandumOfUnderstandingRegardin
gRules.pdf. It is worth noting that, in line with the rules of the CUES, the MOU has no specificgeographic limitation, such as territorial sea, that could bring in political disagreement. For a further
discussion, see Yan Yan, Maritime Confidence-Building Measures: Assessing China-US MOU on Notificationof Major Military Activities and Rules of Behavior, in MARITIME ORDER AND THE LAW IN EAST ASIA 171(Nong Hong & Gordon Houlden eds., 2018).
23 Memorandum of Understanding between the United States of American Department of Defense and thePeople’s Republic of China Ministry of National Defense on Notification of Major Military Activities ConfidenceBuilding
Measures
Mechanism,
November
4,
2014,
availableathttps://dod.defense.gov/Portals/1/Documents/pubs/141112_MemorandumOfUnderstandingOnNotification.pdf.
24 The Agreement is available at https://oaarchive.arctic-council.org/handle/11374/1916.
25 For a further discussion, see, e.g., Akiho Shibata & Maiko Raita, An Agreement on Enhancing
International Arctic Scientific Cooperation: Only for the Eight Arctic States and Their Scientists? 8 Y. B. POLAR
L.129 (2016).
26 Supra note 32, art. 2.
34
22

non-parties countries partner in atransparency

and

new

norms

project with scientists from an Arctic

regarding Arctic scientific collection,state, they would effectively benefit

data monitoring and analysis. 30 It could

from the provisions of the Agreement. 27

facilitate U.S.-China Arctic scientific

Moreover, the Arctic states shall meetcooperation and access to some key

to review the implementation of the

Arctic research.

Agreement no later than one year after
the enforcement of the Agreement, and

The Agreement to Prevent Unregulated

from then on as decided by the Parties.

High Seas Fisheries in the Central

Such meeting would invite Permanent

Arctic Ocean

Participants as well as observers to
information.

The Agreement to Prevent Unregulated

Scientific cooperation activities withHigh Seas Fisheries in the Central

non-parties regarding the Arctic may

Arctic Ocean (“CAOF Agreement”)

also be taken into account when

was initiated by the five Arctic coastal

reviewing the implementation of thestates (Canada, Denmark, Norway,

Agreement.

Russia, the United States) in June 2010.

observe

andprovide28

In December 2015, five other fishing
To date, no countries have invoked thecountries and entities (China, theAgreement to overcome a barrier toEuropean Union, Iceland, Japan, andArcticthe

Republic of Korea) started to be invitedawareness of the Agreement is low in

to participate in the treaty-making

both the U.S. and China. On the otherprocess. Therefore, the negotiation ofhand, as suggested by Heather A.

the Agreement has been known as theConley“Arctic

research.

Inaddition,29

andAgreement

others,canutilizing

help

the

establish

Five-plus-Fiveprocess.” 31

China has the world’s largest distant-Id, art. 17 (2).
Id, art. 12.
29 See John Farrell, How the US Government is Implementing the Agreement, in SUPPORTING
IMPLEMENTATION OF ARCTIC SCIENCE AGREEMENT (Science Diplomacy Action Synthesis No.3), January
2019, at 17, available at https://www.uarctic.org/media/1599347/science-diplomacy-action_synthesis-no3_arctic-science-agreement-dialogue-panel_supporting-implemention-of-the-arctic-scienceagremenet-_31jan19.pdf.
30 Heather A. Conley et. al., America’s Arctic Moment: Great Power Competition in the Arctic to 2050, A
Reportofthe
CSIS
EuropeProgram,
March
2020,
at
6,
availableathttps://www.csis.org/analysis/americas-arctic-moment-great-power-competition-arctic-2050.
31 See generally Joji Morishita, The Arctic Five-plus-Five Process on Central Arctic Ocean Fisheries
Negotiations: Reflecting the interests of Arctic and non-Arctic Actors, in EMERGING LEGAL ORDERS IN THE
35
27
28

water fishing (DWF) fleet 32 and is

JPSRM program could also further theinterested in the Arctic maritime

study on the ecosystem of CAO and has

resources, especially in the high seasa potential to contribute to the ongoingarea of the CAO, and therefore

treaty negotiations on the Conservation

participatedactively. 33

in
The

the

negotiations

and

CAOF

Agreement

Biological Diversity of Areas Beyond

entered into force on June 25th, 2021. 34

Sustainable

Use

of

MarineNational Jurisdiction (BBNJ) and theprotection of marine biodiversity in the

The CAOF Agreement adopted a

Arctic Ocean. On the other hand, given

precautionary

theapproachtothelimitedscientificknowledge

conservation and management of theregarding fisheries resources in thehigh seas fishing in the CAO. The

CAO, there are many challenges inparties agreed to ban unregulated

implementing the CAOF Agreement. 37

fisheries in the high sea portion of the

In this context, how to put this new

CAO for sixteen years to allow time fortreaty into practice offers specificscientists to study the fish and fish

opportunities for the U.S. and China tohabitant in the region and theircollaborate and enhance mutual trust

suitability for commercial fishing. 35

regarding the Arctic. In fact, the U.S.

During this period of time, a Joint

and China have long worked together

Program of Scientific Research andto combat illegal, unreported, andMonitoring (JPSRM) will be put in

unregulated (IUU) fishing in otherplace under the framework of theregions.

Agreement.

cooperated in patrolling high seas

36

At the same time, theForexample,

they

have

ARCTIC: THE ROLE OF NON-ARCTIC ACTORS 109-131 (Akiho Shibata, Leilei Zou, Nikolas Sellheim &Marzia Scopelliti eds., 2019).
32 See Miren Gutierrez et. al., China’s Distant-water Fishing Fleet: Scale, Impact and Governance, ODI Report,
June 2020, at 8, available at https://cdn.odi.org/media/documents/chinesedistantwaterfishing_web.pdf.
33 See Nengye Liu, How Has China Shaped Arctic Fisheries Governance? THE DIPLOMAT (Jun. 20, 2018),
https://thediplomat.com/2018/06/how-has-china-shaped-arctic-fisheries-governance/.
34 The text of the Agreement is available at https://www.dfo-mpo.gc.ca/international/agreementaccord-eng.htm.
35 Id. art.13.
36 Id. art. 4.
37 For a more detailed discussion, see, e.g., David L. VanderZwaag, Governance of Fisheries in the Central
Arctic Ocean: Cooperative Currents, Foggy Future, in GOVERNING MARINE LIVING RESOURCES IN THE POLAR
REGIONS 92-108 (Nengye Liu et. al. eds., 2019) (discussing five aspects of the uncertainty regarding theimplementation of the Agreement, including how to deal with future “exploratory fishing” under the
Agreement, the compatibility of coastal states’ fisheries conservation measures, the unsettled outer
continental shelf boundaries in the CAO, how to coordinate scientific research and cooperation, andthe implications of a new BBNJ treaty for future Arctic fisheries).
36

illegal driftnet fishing in the North

seafood industry and maintained thePacific Ocean under the U.S.-China

top export partner for Alaska in 2020. 41

Shiprider Memorandum since 1993. 38
Amidst the on-going U.S.-China trade
An Alaska Perspective on U.S.-China

war, China has imposed up to 37

Economic Relations

percent levy for the U.S. seafood in
retaliation of U.S. tariffs on Chinese

In June 2018, then-Governor of Alaska

goods. This plunged Alaska’s seafood

Bill Walker completed an Opportunities

exports to China by 46 percent from a

Alaska: China Trade Mission in China tohigh in 2017. 42 While some nontariff

expand Alaska’s export and investment

trade barriers were removed by Phase

relationship with China. 39 However,

One trade agreement signed by the U.S.

since the Trump administration started

and China in January 2020, 43 mosta tariffs war against China, Alaska’s

Alaska seafood products continue toeconomic relationship with China has

face a 32 to 40 percent final tariff in the

been caught in the crossfire. For

Chinese market. 44 At the same time,

instance,three

Beijing has lowered the applied mosteconomic driver for Alaska and one offavored nation (MFN) import tariffs forthe leading employers contributing tocertain seafood products from otherseafood

is

a

top

more than 60,000 jobs in Alaska alone.

40

China plays a vital role for Alaska’s
The Memorandum of Understanding between the Government of the United States of America and theGovernment of the People’s Republic of China on Effective Cooperation and Implementation of United Nations
Geral Assembly Resolution 46/215 of December 20, 1991, signed in Washington, D.C., on December 3, 1993.
The MOU expired on December 31, 2019.
39 Austion Baird, China Trade Mission Delegates Return Home, ALASKA NATIVE NEWS (Jun.7, 2018),
https://alaska-native-news.com/china-trade-mission-delegates-return-home/35506/.
40 USTR 301 Committee, Section 301 Tariffs Public Hearing Proceedings, August 23, 2018, at 11,
https://ustr.gov/sites/default/files/enforcement/301Investigations/0823USTR.pdf.
41 See The U.S.-China Business Council, 2021 State Export Report: Goods and Services Exports by U.S. States
to
China
Over
the
Past
Decade,May2021,
https://www.uschina.org/sites/default/files/state_export_report_2021_full_report.pdf#page=21.
42 Chu Daye & Tu Lei, Alaska’s China Exports Hurt by Trade War, Highlighting Lose-lose Situation, GLOBALTIMES (Mar. 19, 2021), https://www.globaltimes.cn/page/202103/1218886.shtml.
43 See Economic and Trade Agreement between the Government of the United States of America andthe Government of the People’s Republic of China, January 15, 2020, available athttps://ustr.gov/sites/default/files/files/agreements/phase%20one%20agreement/Economic_And_Trad
e_Agreement_Between_The_United_States_And_China_Text.pdf.
44 Department of Commerce, Community, and Economic Development, State of Alaska FY2022
Governor’s
Operating
Budget,December
15,
2020,
at
372,
availableathttps://omb.alaska.gov/ombfiles/22_budget/DCCED/Proposed/budget_summary_dcced.pdf.
37
38

countries under the World Traderevised approach involves the launch

Organization (WTO) rules. 45

of a new exclusion review process for
Section 301 tariffs on Chinese exports. 48

Particularly,

becauseoflabor

shortages, a significant amount of

In addition, since September 2020,

Alaska’s seafood is often sent to China

approximately 3,600 cases have beenfor processing before re-exporting to

filed in the U.S. Court of International

other countries, including the U.S.

Trade (CIT), challenging the imposition

However, many re-imports of Alaskanof a third and fourth round of tariffs on

seafood processed in China are notproducts from China by the USTR

exempt from the current retaliatory

Office pursuant of Section 301 of the

U.S. tariffs. In other words, those

Trade Act of 1974. 49 The lawsuits have

Alaska companies that reprocess U.S.-

been consolidated behind the initial

harvested seafood in China for re-

HMTX lawsuit. 50 If the lawsuit isexporting to the U.S. market are

successful, it would effectively end theimmediately affected. 46 Consequently,

tariffs on Chinese goods and the U.S.

Alaska’s congressional delegation has

government should refund any duties

urged the U.S. Trade Representative

paid by plaintiffs pursuant to List 3 and(USTR) to remove U.S.-caught seafood

List 4. To date, the exact impacts offrom the tariff lists.

According toPhase One trade agreement and thecurrent USTR Katherine Tai, the U.S.

ongoing Section 301 litigation on

government will be launching a new

Alaska seafood companies and theworker-centered

Alaska-China trade relations remain

47

trade

strategy

towards China and a key element of theThis annual tariff adjustment plan did not affect the retaliatory tariffs on U.S. exports to China. For
more information, see USDA FOREIGN AGRICULTURAL SERVICE, Report: China Lowers Applied MFN Tariff
Rates on Selected Agricultural Products, CH 2019-0199, January 5, 2020, available athttps://www.fas.usda.gov/data/china-china-lowers-applied-mfn-tariff-rates-selected-agriculturalproducts-0.
46
See Alaska Seafood, Alaska Seafood 2019 US/China Tariff Overview, (Jan. 15, 2020),
https://uploads.alaskaseafood.org/2020/01/ASMI-Tariff-Overview-Jan-2020.pdf.
47 See, e.g., supra note 48.
48 Kate McNulty, Christopher Adams & Erin Biel, U.S. Trade Representative Previews New China Strategy,
GLOBAL POLICY WATCH (Oct. 7, 2021), https://www.globalpolicywatch.com/2021/10/u-s-traderepresentative-previews-new-china-strategy/.
49 See United States Court of International Trade, In Re Section 301 Cases, Slip Op 21-81, July 6, 2021,
https://www.cit.uscourts.gov/sites/cit/files/21-81.pdf.
50 In September 2020, HMTX Industries LLC, a U.S. importer that paid duties under List 3 and List 4A,
brought the first of the Section 301 lawsuit to the CIT, seeking a refund of duties paid. Id., at 7.
38
45

unclearanddeservefurther

investigation.

relationships remain strong. Therefore,
the conflicts of interests can arise
between the U.S. federal government

Furthermore, China is also interested inand the state of Alaska, especiallyoil, gas, other resource extraction andregarding foreign commerce. 53 How

various infrastructure investments inmuch role that a state can play in

Alaska,

such

as

port,

rail,

and

foreign commerce under the federalism

projects.

The

principles becomes a highly relevant

Alaskan North Slope contains some ofquestion for Alaska in terms ofthe country’s largest oil and natural gas

promoting its economic relationshipfields. Generally speaking, China’s

with China in the current context. 54

telecommunications

participation in the Arctic development
has already been seen problematic,

Conclusion

particularly in light of its use ofgovernment-linked

trades,state-

The fast-changing Arctic adds a newowned investments and loans to attract

dimension to contemporary U.S.-China

and influence Arctic actors.

China’srelations. Whereas tensions on some

preferential treatment for state-owned

issues between the U.S. and China may

enterprises (SOEs) has long been a hotbebutton issue between the U.S. andsubstantial

China. 52 In sum, any Chinese direct

manage them and prevent spillovers

investment in Alaska would be subject

that hinder the rosy prospects for theto the scrutiny and review process of

U.S.-China cooperation in other areas

the Committee on Foreign Investment

such as the Arctic. As discussed in thisin the United States (CFIUS).

note, there is a wide range of concrete,51

irreconcilable,

meaningful

dialogues

would

and
help

feasible opportunities for U.S.-China
Overall, although there are significant

cooperation regarding the Arctic. Of

frictions at the nation-to-nation level,

course, shared interests and lofty

theintentions

Alaska-China

economicarenoguarantee

forSee, e.g., MARK E. ROSEN & CARA B. THURINGER, UNCONSTRAINED FOREIGN DIRECT INVESTMENT: AN
EMERGING CHALLENGE TO ARCTIC SECURITY 51- 61 (2017).
52 See, e.g., OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, U.S. Statement on the Trade Policy Review
ofChina,
October
22,
2021,
https://ustr.gov/about-us/policy-offices/press-office/pressreleases/2021/october/us-statement-trade-policy-review-china.
53 See generally Sam Karson, Caught Between Superpowers: Alaska’s Economic Relationship with China amidst
the New Cold War, 36 (1) ALASKA L. REV. 47 (2019).
54 Id.
39
51

•

•

collaboration. To facilitate the U.S.-

responsibilities

China collaboration in the Arctic, sometensions on other issues with China’s

tentative policy recommendations are

participation

provided as follows:

constructive way. For instance, in a

Increasing the awareness of the Arctic

Congressional Research Service (CRS)

among policymakers in both the U.S.

report to Congress concerning theand China and placing the Arctic issues

Arctic,

front

two

suggesting the U.S. government tocountries return to the negotiating

consider suspending China’s Observer

tables. The truth is there are manystatus on the Arctic Council as a

“Arctic opportunities” for the twopunitive cost-imposing measure forcountries

andunwanted Chinese actions in the SCS. 55

collaboration, particularly regarding

Several U.S. military Arctic policies

climate change, scientific research,and reports have also linked China’s

marine environmental protection andassertiveness

IUU fishing, international trade, andengagement in the Arctic, contending

the development of Arctic internationalthat China is a challenger to the rule-law.

based order in the Arctic. These

Using a bottom-to-top approach tosuggestions are neither feasible nor

promote

true.

and

centertothecooperation.

whendevelop

the

trust

U.S.-China
Those

Arctic

in

the

They

link
the

Arcticauthorsinare

U.S.-China

have

the

SCS

not

in

a

kept

to

helpfulits

andindividuals,

constructive for fostering cooperationcompanies, institutes, and agencies

in the Arctic region, including the U.S.-

who are involved with the specifics ofChina Arctic cooperation.

various Arctic issues have good chance
to

•

to

engageinorcreatebilateral•

Increasing the awareness of existing
U.S.-China

bilateral

cooperationcooperation programs and networks,

initiatives and programs

which will in turn inform the relevant

the new effective Arctic agreements

decision-making processes.

andScholars, journalists, and diplomats are

scientists

all ultimate agents for securing acountries. In China, this can bepeaceful and sustainable order of the

improved by producing and providing

Arctic.

informative,

These

international

individuals

have

professionalarrangements
and

56

among

scholars

timelyas well asinreports

Arcticbothandconference proceedings for a broader

See supra note 9, at 38.
For instance, U.S.-China Dialogue on the Law of the Sea and Polar Issues and biannual U.S.-China Track II
Dialogue on Maritime Affairs and International Law have had limited participants and audience.
40

55
56

audience as well as encouraging

The author recommends: ‘‘Increasing themeaningful interactions among Arctic
naturalscientists,socialawareness of the Arctic among policymakers inscienceboth the U.S. and China and placing the Arctic

scholars, industry practitioners, andissues front and center when the two countries
return to the negotiating tables.’’

policymakers in the related fields.

© Jasim Sarker

41

Fundamentals emphasised the need

Russia’s Current Arctic Policy

and importance to take account ofand Law

natural,demographic

David Baramidze *Arctic zone of Russia as a strategic
resource base. The Strategy for thevarious aspects of Arctic development.

Development of the Arctic Zone of the

The first such document that fixed theRussian Federation and the Nationalmodern Russia’s state interests in the

Security Efforts that followed in 2013

Arctic was the Sub-programme “Arctic

concordantly

Research and Exploration” within the
Ocean” in 1995. The development ofdefinedassupplemented

theprovisions of the 2008 Fundamentals.

Federal target programme “World

Today, in light of the adoption of theanFundamentals of the State Policy of the

independent object of state policy. The

Russian Federation in the Arctic for therealisation of the resource potential of

Period up to 2035 (hereinafter referred

the Russian Arctic was identified as ato as the 2020 Fundamentals), Russia

priority. However, such a programme

has finally consolidated its national

was not comprehensive and could notpriorities in the Arctic. Consequently,

encompass the full range of large-scale

the primary goal is to improve thegoals and objectives.

quality of life of the population in the
Russian Arctic, including indigenous

It can be asserted that the final

minorities. Among the other goals iscomprehensive version of Russia’s

the preservation of the Arctic as a

Arctic policy was formed in 2008 withterritory of peace, stable and mutually

the adoption of the Fundamentals ofbeneficial partnership. Among otherthe Russian Federation State Policy inchallenges, the major socio-economic

the Arctic for the period up to 2020 andprojects

for a further perspective (hereinafter –areconnected

with

the

development of the Northern Sea Routethe 2008 Fundamentals). As distinct

as a national transport link.

from the previous documents, the 2008*

specialremained unchanged – the use of thenumber of state programmes reflecting

was

other

aspect of the new Arctic policy

Russian Federation has developed aArcticandsocio-economic,

conditions of the Arctic. The main

Since the end of the 20th century, thetheclimatic,

Candidate of Law Sciences and Associate professor, Department of Environmental, Labor and Natural

Resources Law Udmurt State University, Izhevsk, Russia
42

An undoubted favourable achievement

Specialis the legal delineation of boundaries ofprotection of the natural environment

the

zone.

of the Arctic. The 2020 Fundamentals

Meanwhile, the conceptual basis forfocus on the following main objectives

contouring the southern boundaries ofin the sphere of ecological protection

the Russian Arctic zone is not on theandagenda of discussion by the legislative

development, on a scientific basis, of aor executive authorities. The actual

network of specially protected natureboundaries of the Arctic zone of Russia

areas and water basins, in order toare established by the Presidential

preserve the ecological systems andDecree of 2014. However, in thetheir adaptation to the climate change;

authors’ opinion, the problem is theb) preservation of fauna and flora of theabsence of a scientifically substantiatedArctic,criterion for attributing the northern

endangered plants, animals and other

territories of Russia to the Arctic zone.

organisms; c) further work towards

Since 2014, the said Presidential Decree

elimination of the overall damage

was supplemented twice. In 2017, thecausednorthern territories of the Republic ofimprovement of the environmental

Karelia were included in the Arctic

monitoring system, the use of modernzone, and in 2019 some areas of theinformation

Republic of Sakha (Yakutia) were

technologies and systems for making

added. In the present situation, themeasurements from satellites, offshore

tasks have been already formulated,

and ice platforms, research vessels,

the budget funds have been allocated,ground stations and observatories; e)but there appear new territories with

inculcation

the specifics to be taken into account.

technologies, minimizing atmospheric

For instance, the northern territories ofemission and pollutant discharge into

Yakutia, recently included in the Arctic

water bodies and mitigation of otherzone, have an insufficiently developed

types of negative impact on thetransportThis

environment during economic andcircumstance forces the government toother activities; f) securing the rational

look for additional sources of funding.

use of natural resources, including in

Meanwhile budget funds have alreadyplaces of traditional residence andbeen allocated for specific tasks.

economic activities of small-numbered

ArcticandtheArcticinfrastructure.

attention

is

paid

environmental

peoples;

protection

to

the

g)

safety:

of

rare

the

the

a)

and

environment;

and

of

to

d)

communication

best

development

availableofacomprehensive system for managing
43waste of all hazard classes, construction

theof modern environmentally friendly

deposits and solid minerals throughwaste

publicdisposalfacilities;h)developmentandofhydrocarbon

privateinvestment;

implementation of a set of measures toencouraging the development of hard-

prevent toxic substances, infectious

to-recoverdiseaseincreased oil and gas recovery factors,

agentsandradioactivehydrocarbon

reserves,

substances from entering the Arctic

advancedzone of the Russian Federation. The

production of liquefied natural gas and

truly

the

gas chemical products; d) creation ofenvironmental problems is dictated bydue conditions for increasing theRussia’s recognition of the uniqueefficiency

natural properties of the Arctic which

extraction (yield) of aquatic biologicalcombinetheresources, stimulation of fish products

ecological systems, on the one hand,

output with high added value andand the global importance of the Arctic

proper development of aquaculture; e)

in stabilization of climatic processes (asintensification

based on the research of the Arctic andstimulating the development of forest

Antarctic Research Institute), on theinfrastructure

andother hand.

processing

forestserioustheattentiontovulnerabilityofpetroleumofrefining,

development

of

of

and

reforestation,
advancedreserves;f)stimulation of local production of
The

key

objectivesofeconomic

agriculturalrawmaterials

anddevelopment of the Arctic zone of thefoodstuffs; (g) development of cruise

Russian Federation are: a) state support

travel, ethnic, ecological and industrialof entrepreneurial activities, including

tourism; h) preserving and developing

support of small and medium-size

the traditional economic activities,business,withcreatehandicrafts and trades contributing to

attractive

conditionsprivatenecessary

a

view
for

to

employment

and

self-

investment and its economic efficiency;

employment of people representingb) increased participation of private

small minorities; i) providing access ofinvestors in realisation of investment

people from small-numbered nations

projects on the Arctic shelf, withto natural resources necessary topreservation of state control over it;

maintain their traditional way of life

infrastructural development of mineraland traditional economic activities; j)resource centres logistically linked with

developing

the Northern Sea Route; (c) increasing

participation of people from small

the scope of geological exploration forminorities and their representatives in44

duemechanisms

fordecision-making

onissuesarchipelago on the terms of equal andconnected with industrial activities inmutually beneficial cooperation with

their traditional habitat and traditional

Norway and the other states – parties toeconomic occupation; k) bringing thethe Svalbard Treaty as of 9 February,

system of secondary vocational and1920; d) maintaining interaction withhigher education in the Arctic Zone of

the Arctic states on delineation of thethe Russian Federation in line with thecontinental shelf in the Arctic Ocean,estimates of the need for qualified

taking the national interests of thepersonnel; l) providing state support to

Russian Federation into account, on thethe

Russianbasis of the international law andpopulation willing to relocate (resettle)

reached agreements; e) promoting theto/in the Arctic Zone of the Russianefforts of the Arctic states to create aFederation and engage in labour

unified regional system for search andactivities there.

rescue, prevention of technologicaleconomicallytheactivecatastrophes and elimination of theirTheprioritiesforinternational

consequences, as well as coordination(a)bilateralof rescue forces’ actions; f) active

good-neighbourly

involvement of the Arctic and extra-

relations with the Arctic states withinregional states in mutually beneficial

the multilateral regional cooperation

economic cooperation in the Arctic

framework, in particular, the Arctic

zone of the Russian Federation; (g)Council, the Arctic Five and the Barents

assistance to small-numbered peoples

Euro-Arctic Council; stepping up thein cross-border cooperation, culturalinternational

economic,and economic contacts with kindred

technological,

culturalcooperation

include:strengtheningofbordercooperation

scientific,
and

well

nations and ethnic groups residing

asoutside the Russian Federation, as wellcollaboration in the study of global

as assistance in participation of small-climatenumbered minorities in internationalchange,ascross-

environmental

protection and efficient development ofcooperation

natural resources in compliance with

development within the framework ofhigh environmental standards; b) tointer-state contacts and in accordance

maintain the Arctic Council’s position

with the international agreements of

as

the

the

key

regional

association

Russianon

ethnocultural

Federation;h)coordinating the international activity

communicating the results of thein the region; c) to ensure the Russian

Russian Federation’s activities in thepresence in the Svalbard (Spitsbergen)45Arctic to the international community

State

SupportofEntrepreneurial

at large.

Activity in the Arctic Zone of theRussian Federation” was adopted. It is

The state programmes under review

notable that Article 1 (subject anddirectly reflect the overriding principle

objectives of regulation) states that theof sustainable development formulated

Law “defines the legal status of theby the Rio Declaration of 1992, which

Arcticproclaims equal development of social,

entirely

economic and environmental spheres.

investment

However, if one turns to the Russian

activities in the Arctic. At the samelegislation

which

the

time, the term “legal status of the Arctic

realisationofpolicyzone” is a complex legal category

provisions,thefocusestheonArcticpredominancezone”;

focuses

including,ofhowever,
on

and

it

almostsupportofentrepreneurial

among

other

things,environmental and other features. The

economic interests becomes evident.

provisions of the Law enshrine a
For instance, Russia has for a long timevariety of measures of state support forbeen working on a draft project

entrepreneurial activities. For instance,

intended to regulate the whole range ofthe residents of the Arctic zone may befactors

granted tax benefits and partiallyconnected

with

the

development of the Arctic zone. The

reimbursed

environmental component should be ofpremiums.

the

paid

insuranceparamount importance. The law may
contain the norms reflecting natural,

It should as well be noted that theclimatic and socio-economic specifics

Russian environmental legislation hasof the Arctic – increased vulnerability

also been supplemented with a number

to anthropogenic impact, the weakof references to the Arctic naturalabilityandenvironment. For instance, Federal

recovery, continuing thawing of the

Law No. 174-FZ (adopted in 1995) “On

permafrost,

Environmental

forself-purification
climatic

underdevelopmentchangeofandtransport

recently

Expertise”

referred

all

until
capitalinfrastructure. Several draft laws wereconstruction projects in the Arctic zone

prepared;

wereof Russia, without exception, to thewithdrawn for further revision due toobjects of state ecological expertise.

the complexity of defining the subjectThus, an excessive requirement wasof legal regulation. Nevertheless, inestablished, unreasonably hampering

2020, the Federal Law №193-FZ “Onthe economic activities and efficient

however,they

46

realisationofenvironmental

finally formed. The primary goals,

regulations. Undoubtedly, the norms oftasks,

environmental and natural resource

benchmarks

law of Russia are fully applicable in theRegretfully, a fair question can be

Arctic zone of the Russian Federation.

raisedHowever, the absence of a special law

programmes have a mandatory nature.

that would comprehensively take into

Some researchers believe that the stateaccount

climatic

programmes contain the norms havingfeatures of the Arctic nature not only

the status of principles or declarations.

significantly increases the ecologicalHowever, quite often, governmental

risks in the Arctic region, but also

strategic documents do not enshrine

discredits the feasibility of using theefficient mechanisms of realisation of

resource potential of the Arctic zone.

intendedthenaturalandnational–

interests

have

been

whether

objectives,

anddefined.

such

including

state

the

institute of liability for non-complianceThus, it is obvious that the Arctic policy

within the present-day Russia has been

programme.

47

provisionsofaparticularfootprint” (EU, 2021: 1; see Koivurova

Schrödinger’s Euro-Arctic: The
New

ArcticPolicy

of

et

the

for

sustainable

1) is to be understood in a specificcontext, that is, in light of the EU’s
economic power and its demand forUnion (EU) presented its new Arctic

resources from the Arctic region (EU,policy. The Joint Communication by
Commission’s

2021: 1). That the EU recognizes that isHigh

does have responsibilities in the region

Representative of the Union for Foreign

is not to be understood as an attempt to

Affairs and Security Policy to thetakeEuropean Parliament, the Council, theEconomicandArcticfromtheStateshave

theprimary

responsibility for tackling challenges

stronger EU engagement for a peaceful,andsustainable and prosperous Arctic”.

opportunities

withintheirterritories” (EU, 2021: 1, footnote

The new policy document outlines theomitted). The EU sees its own role inEU’s vision for its own future role in theconnection with its own legislative

Arctic region. In this short text, the EU’s

competences for the EU Arctic (EU,new Arctic policy is presented with a

2021:

particular focus on the question of how

1)

and

in

international

cooperation with regard to issues that

the EU sees itself and in how far it buystranscend nation States (EU, 2021: 1).

into the idea of Arctic exceptionalism.
isanything

fact, the EU emphasized that “[t]heRegions (EU, 2021) is entitled “A

documentaway

sovereignty of the eight Arctic States. In

SocialCommittee, and the Committee of the

The EU recognizes the increasing
interest

somewhatof

non-Arctic

Statesinobtaining observer status with thecontradictory right from the start as the

Arcticpolicy falls within the remit of the HighCouncil

(AC),

the

most

important diplomatic forum in the

Representative for Foreign Affairs,

Arctic (EU, 2021: 3). For the EU, it is thiseven though the European Union “is inincreasing interest that “eflects the new

the Arctic” (EU, 2021: 1). The EU begins

geopolitical environment” (EU, 2021:

by recognizing its own “environmental*

shared1). The term “responsibility” (EU, 2021:

On 13 October 2021, the European

The

its

people who live in the Arctic (EU, 2021:

Stefan Kirchner *Europeananddevelopment and the well-being of theof Arctic Exceptionalism

European2021)

responsibility

European Union and the Limits

the

al.,

Research Professor, Arctic Centre, University of Lapland.
483). This part of the policy document

The wish on the part of decision-

seems to have been prepared prior tomakers in Brussels that the EU is

the rejection of Estonia’s - very

perceived as an insider in the Arctic isreasonable - bid for observer status.

understandable and indeed the EU

Today, one can wonder if the rejectionneeds to strengthen its ties to its ownof the application by the northernmost

Arctic and other Arctic partners outside

non-Arctic State in 2021 marks the turnof the European Union (Kirchner,of the tide when it comes to the Arctic2021). The ability to cooperate in theCouncil’s willingness to access new

Arctic, similar to cooperation on board

observers (cf. Kirchner, 2021) or if thisthe International Space Station (ISS), is

rejection

directed

important for Arctic States. The EU,

against Estonia. Given that the Arctic

however, is not a member of the AC, in

Council decides on the basis offact, it is only “a de facto observer”

unanimityno(Koivurova et al., 2021: 7) but does not

requirement for the AC to publish its

enjoy observer status de jure. By making

reasons for a decision.

the narrative of the Arctic as a placewas

specifically

and

that

there

is

where

political

differences

impactAlready the AC ministerial meeting incross-border cooperation less thanRovaniemi in 2019 highlighted the risk

elsewhere, the European Union risksof a politization of the work of the AC.

sending a wrong signal. On one hand is

So far, the AC is contributing to

the EU cognizant of the increased

maintaining the idea of the Arctic as amilitarization on the Russian side of theregion where cooperation is possible

border (EU, 2021: 3), on the other hand

despite significant political differences.

do the ongoing conflicts with Russia,

The European Union’s new Arctic

such as the war against Ukraine, thepolicythisinterference in domestic politics andapproach, the EU also appropriates it

the support for the illegitimate regime(EU, 2021: 2 et seq.). The EU not onlyin Minsk, apparently not feature in the

portrays itself as an insider actor in the

EU’s plans for its own future in the

Arctic (EU, 2021: 1) but sees the outside

Arctic. The good cooperation acrossinterest in the Arctic as a “threat” (EU,borders on numerous technical and

2021:

“new

scientific issues, from research to searchgeopolitical environment” (EU, 2021: 3)

and rescue operations, shows thatis created by non-Arctic interest in the

Russia can become a valued partner in

Arctic. This view appears dangerously

the Arctic. For many State governments

short-sighted.

across the EU, the interference by the

not

2).

only

perpetuates

Accordingly,

the

49

current

governmentin

Moscowpossible

explanation

for

the

remains inacceptable. The EU would be

willingness, and ability, of States to

well

the

cooperate with each other in the Arctic,

appearance of appeasement. However,despite serious political differences,by self-identifying as Arctic right at thethat is commonly heard in the Arctic isstart of the policy document, the EU set

thatitself on a course for cross-borderdangerous and that operations in thecooperation. This includes cooperation

region require technical expertise andwith all Arctic actors, including Russia.

skills. In a way, the parallels between

With regard to EU member States andcooperation

non-members

beencooperation in outer space are visible.

particularly impacted by activities thatIndeed, the Arctic is seen by many inarecurrent

the Arctic as a special case, as angovernment in Moscow, the EU has

exception where political rules thatnow placed itself in a position in which

apply everywhere else simply do not

it has to be able to explain the special

apply in the same way. Today, there

nature of cooperation in the Arctic. The

may be doubts as to whether thispressure to do so will only grow as

exceptional nature of the Arctic can bequestions over gas supplies frommaintained (see also Lackenbauer &Russia, interference by Belarus in

Dean, 2020: 341 et seq.). In some ways,

Lithuania and Poland become louder.

due

The Arctic provides Russia and theglobalization, the Arctic is becomingWest with an opportunity to overcome

more like the rest of the world.

political differences but the European

International treaties, rather than soft

Union will have to be able to explain

law, gain in importance and the Arctic

the reasons for this opportunity and theCouncil has played a role in the

EU’s reasons for emphasizing thelegalization of international Arctic

opportunities for cooperation.

politics (cf. Koivurova et al., 2020: 73 etadvised

to

avoid

that

attributed

to

even

have
the

the

to

Arctic

in

is

the

climateparticularly

Arcticchangeandandseq.). This could contribute to the end
In the words of Durfee and Johnstone,of exceptionalism.

“Cooperation in the Arctic is not new,though

the

scope

had

increased

The European Union’s new Arctic

dramatically since the end of the Cold

policyWar” (Durfee & Johnstone, 2019: 3; seecooperation with the EU’s existingalso Hønneland, 2020: 153 and Dodds

partners and particular emphasis is& Nuttall, 2019: 150 et seq.). One

placed on the situation of Greenland
50

documentemphasizesthe(EU, 2021: 4). For example will theregion. But this approach was by noEuropean Commission open an officemeans immersive. By continuing toin Nuuk (EU, 2021: 4). Were Greenland

look at the Arctic from the outside,

to gain independence, the EU would

while recognizing its responsibility andhave a de facto embassy on day one.

desiring to be more of an Arctic insider,

Until then, this office is a tool to keep

the European Union wants both: theGreenland closer to Europe. Although

benefits of being inside the Arctic,

the EU sees itself as an Arctic actor

including as an insider of international

now, it looks at the Arctic as ‘the other’.

Arctic governance, while continuing toThis is visible by the localization of theutilize

new role of the EU’s Special Envoy forstructures. This approach is similar to

Arctic Matters within the European

the approach the EU has towards

External Action Service (EU, 2021: 4).

indigenous peoples, often seeing theThis emphasis on the EU’s own Arctic

right of indigenous peoples as a foreign

territories and on the establishedpolicy topic, although there are sevenpartners, rather than on Russia, and theindigenous

distancing

withEuropean Union: in addition to theapproaching the Arctic through the

Sámi of Northern Europe, including thelens of foreign policy reduces the need

northernmost parts of EU member

to justify the willingness to cooperatestates Sweden and Finland, the Kali'na,

with Russia in the Arctic.

Lokono/Arawak, Palikur/Pahikweneh,

that

comes

foreignpolicypeoplestools

withinandtheTeko, Wayana and Wayapi peoples in
Cooperation is a core value of polar law

French Guiana. While small in number,(Scott & VanderZwaag, 2020: 12). It is

the indigenous persons who live inessential

thisdifferent parts of the European Union

characteristic of polar law. Polar law,

are citizens of the EU. Right now, theboth in the Arctic and in relation to

EU is lacking a coherent approach to

Antarctica, is still an emerging field of

both indigenous peoples and to theinternational law. Dissemination of

Arctic.

tocommunicate

knowledge on polar law is a necessity
to ensure that policy-makers remain

The EU’s new Arctic policy contains a

cognizantlegal

number of positive and noteworthy

frameworks. During the preparatory

developments, in particular in relation

phase of the new EU Arctic policy, theto climate change and the protection of

EU showed some openness to local

the natural environment. It remains to

inputs and listened to voices from thebe seen, however, whether the EU can

of

the

existing

51

continue

its

approach

of

being

misunderstood as appeasement. It will

simultaneously within and outside thebeArctic. The new Arctic policy is a step

communicate

in the right direction and the European

partners, such as Ukraine.

important

for
this

the
to

EU

to

non-Arctic

Union appears to be listening more to
those who live in the Arctic. By‘‘Polar law, both in theperceiving the Arctic as both an issue ofArctic and in relation toforeign and of internal policies, the EU

Antarctica, is still an

might even contribute to stemming the

emerging field ofapparent trend to an end of Arctic

international law.

exceptionalism. The Arctic remains a

Dissemination of

special place and the level of cross-knowledge on polar law isborder cooperation that is visible in the
Arctic, despite political differences,a necessity to ensure thatremains exceptional. The EU will havepolicy-makers remain

to find a balance between the need tocognizant of the existing

cooperate with difficult partners andlegal frameworks.’’

the essential duty to defend its values.
In order to remain a credible actor, notonly in the Arctic but globally, the EU

Sources:might be better served in the long run

Europeanby defending its values forcefully if

Commission / High Representative ofneeded. The examples of the handlingthe Union for Foreign Affairs andof Brexit, open to cooperation when it

Security

makes sense while remaining steadfast

Communication

on essential topics, such as Good Friday

Parliament, the Council, the European

Agreement and the prevention of the

Economic and Social Council and theemergence of a hard border on theCommittee of the Regions, JOIN (2021) 27

island of Ireland, can - despite all

final, 13 October 2021.

shortcomings - help Arctic actors toKlaus Dodds & Mark Nuttall (2019).

predict how the EU will handle future

The Arctic. Oxford: Oxford University

conflicts

inPress.

particular the Russian Federation. A

Marywillingness

anJohnstone (2019). Arctic Governance in a

important region that faces many

Changing World, Lanham: Rowman &challenges therefore should not be

Littlefield.

with
to

Arcticpartners,

cooperate

in

52

Union

Policy]Durfeeto&[European(2021).
the

Joint

European

RachaelLorna

Geir Hønneland (2020). Russia and theDavid L. VanderZwaag (eds.), Research

Arctic - Environment, Identity and Foreign

Handbook on Polar Law, Cheltenham:

Policy, London: I. B. Tauris.

Edward Elgar, pp. 64-83.

Timo Koivurova, Alf Håkon Hoel,

P. Whitney Lackenbauer & Ryan Dean

Malte

Kirchner,(2020). “Arctic Exceptionalisms”, in:Małgorzata

Kristina Spohr & Daniel S. HamiltonŚmieszek & Adam Stępień (2021).

(eds.) & Jason C. Moyer (assoc. ed.), The

Overview of EU actions in the Arctic andArctic and World Order, Washington

theirD.C.: Johns Hopkins University, pp.

Humpert,AndreasStefanRaspotnik,

impacthttps://eprd.pl/wp-

content/uploads/2021/06/EU-Policy-

327-355.

Arctic-Impact-Overview-Final-

Karen

Report.pdf (Website last visited 13

VanderZwaag (2020). “Introduction to

October 2021).

Polar Law”, in: Karen N. Scott & David

Timo

Koivurova,

Pirjo

Kleemola-

L.

N.

Scott

VanderZwaag

&

David

(eds.),

L.

Research

Juntunen & Stefan Kirchner (2020).

Handbook on Polar Law, Cheltenham:“Arctic

Edward Elgar, pp. 1-17.

regional

agreements

andarrangements”, in: Karen N. Scott &© Jasim Sarker
53

Trade Law and the Protection of the
Arctic Environment
The

legalityof

Norway’s

proposed heavy fuel oil banunder the General Agreement
on Tariffs and Trade

Introduction
Changes to the Arctic environment
rest of the world. 1 The melting of the
Arctic ice, caused by rising carbon

Abstract: The potential of a heavy fueloil (HFO) spill in Arctic waters poses a
risk

to

the

Arcticenvironment and peoples. In responseto the criticism that the upcominginternational ban on HFO in Arctic
waters is too weak in the interim,
Norway introduced a stricter ban on
HFO use in Svalbard’s waters. This
essay

considering pursuing similar measures

have profound consequences for the

Emily Tsui *significant

should give confidence to other States

examinesthelegalityof

Norway’s proposed regulations under
the General Agreement on Tariffs andTrade (GATT). It shows that while theseregulations may infringe Norway’s
obligations under Article V of the
GATT, the regulations can be justified
under Articles XX and XXI, whichemissionsandacceleratedbypollutants such as black carbon, 2
contribute to global warming throughthe loss of ice’s albedo effect and rising
sea levels. 3 The Arctic is home toimmense biodiversity, and pollution
destroys habitats and species that
constitute

a

loss

for

the

globalcommons. 4 At the same time, open
waters allow for increased maritime
traffic in the Arctic region, as Arctic
shipping routes will reduce about 40%of the navigational distance from Asia
toEurope,minimizing

carbonemissions from shipping. 5 Striking therightbalancebetween

these

two

objections is crucial to the success of theinternational community in reaching

Juris Doctor/ Master of Global Affairs ‘21, University of Toronto.
Lorin Hancock, “Six ways loss of Arctic ice impacts everyone” World Wildlife Fund, online:<https://www.worldwildlife.org/pages/six-ways-loss-of-arctic-ice-impacts-everyone>.
2 Paul Harris, “Climate Change at Sea: Interactions: Impacts, and Governance” in Paul Harris, ed,
Climate Change and Ocean Politics: Politics and Policy for Threatened Seas (Cambridge: Cambridge
University Press, 2019) 3 at 17-18.
3
National Snow and Ice Data Center, “Thermodynamics” (3 April 2020), online:<https://nsidc.org/cryosphere/seaice/processes/albedo.html>.
4 Hans Meltofte, Henry P. Huntington & Tom Barry, “Introduction” in Tom Barry et al., eds, Arctic
Biodiversity Assessment 2013 (Reykjavik: Conservation of Arctic Flora and Fauna, 2013) 10.
5 Yevgeny Aksenov et al. “On the future navigability of Arctic sea routes: High-resolution projectionsof the Arctic Ocean and sea ice” (2017) 75 Mar Pol’y 300.
54*

1

the Paris Agreement’s target of limiting(GATT), 8

global warming to 1.5°C above pre-justified under Articles XX and XXI,

industrial levels before the end of thiswhich should give confidence to othercentury. 6

States considering pursuing similartheregulations

can

be

measures.
Arctic coastal states are at the front lineof protecting the Arctic environment

Backgroundand managing the increased humanactivity.

Statesaredeploying

a

One

of

the

Arcticenvironment’s

andgreatest risks comes from the potential

unilateral regulations that raises safety

spill of HFO from ships transiting

and pollution standards for this traffic.

through the region. HFO is the mostHow do States’ unilateral regulations

popular type of fuel used in Arctic

for transit in Arctic waters conformshipping measured by tonnes of fuelwith their obligations in international

consumed by ships, because of its low

trade

examines

cost. 9 Russian-flagged ships account for

Norway’s proposed regulation 7 ofover half of HFO fuel use and almost abanning ships’ use of heavy fuel oil

quarter of HFO carriage as fuel. 10 HFO(HFO) in Svalbard’s waters as a caseis a highly pollutant substance, isstudy. It shows that while these

extremely

regulations may infringe Norway’s

degrades in near-zero temperatures. 11

obligations under Article V of the

In ice-covered waters, ice could trap oil

General Agreement on Tariffs and Tradefrom a HFO spill, allowing the oil to

combination

law?

of

This

multilateral

essay

viscous,andslowlyLotta Manninen, “The Paris Agreement & The Arctic Region” (2017) 6 The Arctic Yearbook 246.
“Consultation - draft law on amendments to the Environmental Protection Act on Svalbard 15 June
2001 no. 79 (Svalbard Environmental Protection Act)” (6 November 2020) Norwegian Ministry of Climate
and Environment, translated by Google, online: <https://www.regjeringen.no/no/dokumenter/horingutkast-til-lov-om-endringer-i-lov-om-miljovern-pa-svalbard-15.-juni-2001-nr.-79svalbardmiljoloven/id2784144/?expand=horingsbrev>; N.F. Coelho, “Norway: HFO ban in Svalbard
proposed” (11 November 2020) De Maribus, online: <https://demaribus.net/2020/11/11/norway-hfoban-in-svalbard-proposed/>.
8 General Agreement on Tariffs and Trade, 30 October 1947, 58 UNTS 187 (entered into force 1 January1948) [GATT].
9 Bryan Comer et al., Prevalence of heavy fuel oil and black carbon in Arctic shipping, 2015 to 2025
(Washington: International Council on Clean Transportation, 2017) at iv, online:<https://theicct.org/sites/default/files/publications/HFO-Arctic_ICCT_Report_01052017_vF.pdf>[ICCT Report].
10 ICCT Report at vi.
11 Karl Magnus Eger, “Effects of Oil Spills in Arctic Waters” (2010) Arctis Knowledge Hub, online:<http://www.arctis-search.com/Effects+of+Oil+Spills+in+Arctic+Waters >.
55
67

pollute the waters for an extended

Multiple environmental organizations

period of time and transporting it tohave criticized the IMO ban as being

different parts of the Arctic as the ice

ineffective for too long, because it

moves. 12 There is also limited oil spillallowscleanup infrastructure in this remote

exemptions

region, which magnify the difficulties

individual shipowners until 2029. 16

presented during a clean-up. 13 The

Individual States, such as Norway, areeffects of the 1989 Exxon Valdez HFO

currently considering more stringent

spill off the coast of Alaska still lingerbans in the interim in parts of its

today, as oil can still be found in thewaters. 17 Norway currently has awater and biodiversity have not yet

complete ban applicable on HFO use by

fully recovered. 14

any vessel in the national park watersinindividual

Svalbard,forastatestocomplianceremoteissue
tonorthern

States are aware of the challenges HFOarchipelago with a unique status inposes to the region. In November 2020,

international law. 18 The 1920 Treaty oftheInternational

Maritime

Organisation (IMO) approved a ban on
HFO in Arctic waters after 1 July 2024. 15
Protection of the Arctic Marine Environment Working Group, Heavy Fuel Oil (HFO) Use by Ships in
the Arctic 2019: Arctic Shipping Status Report (ASSR) #2, (20 October 2020) at 12 online:<https://www.pame.is/projects/arctic-marine-shipping/arctic-shipping-status-reports/749-arcticshipping-report-2-heavy-fuel-oil-hfo-use-by-ships-in-the-arctic-2019/file> [PAME Report].
13 ICCT Report at 2.
14 Stephen Leahy, “Exxon Valdez changed the oil industry forever—but new threats emerge” (22 March2019) National Geographic, online: <https://www.nationalgeographic.com/environment/2019/03/oilspills-30-years-after-exxon-valdez/>.
15 Reuters, “UN approves ban on heavy ship fuel in Arctic” (20 November 2020) Reuters, online:<https://www.reuters.com/article/shipping-arctic-imo/un-approves-ban-on-heavy-ship-fuel-in-arcticidUKL8N2HY5IS>.
16 Sian Prior, “Why the IMO’s draft Arctic HFO regulation will not protect the Arctic, and how to fix it”(13 November 2020) HFO Free Arctic, online: <https://www.hfofreearctic.org/en/2020/11/13/why-theimos-draft-arctic-hfo-regulation-will-not-protect-the-arctic-and-how-to-fix-it/>.
17 Alexandra Brzozowski, “Norway plans heavy oil ban around Svalbard,” (9 November 2020)
Euractiv.com online: <https://www.euractiv.com/section/energy/news/norway-plans-heavy-oil-banaround-svalbard/>.
18 §40 of the current HFO ban on Svalbard, referencing §99 of Svalbard Environment Act states thatanyone who is found violating this ban is punished by fines or imprisonment for up to one year.
Forskrift om nasjonalparkene Sør-Spitsbergen, Forlandet og Nordvest-Spitsbergen, om naturreservatene
Nordaust-Svalbard og Søraust-Svalbard, og om naturreservatene for fugl på Svalbard, FOR-2014-04-04-377,
translated by Google, §40 online: <https://www.sysselmannen.no/en/heavy-fuel-oil-ban-in-theprotected-areas/>; Lov om miljøvern på Svalbard (svalbardmiljøloven), LOV-2001-06-15-79, translated by
Google, §99 online: <https://lovdata.no/dokument/NL/lov/2001-06-15-79>.
56
12

Svalbard 19 gives Contracting Parties

shipping methods of goods to vessels(including Russia and China) the rightcapableto access and commercially exploit

These regulations are part of the global

resources on the archipelago, while

fight against climate

also recognizing Norway’s sovereignty

against marine pollution, and it is likely

over Svalbard. 20 Norway is currently

that as the deadline for meeting theconsulting the public on its plans toParis Agreement targets approaches, 23

expand its existing ban to cover all

regulations like Norway’s proposed

territorial waters of Svalbard, which isone may become more common. 24

ofwithholding

discharge.

changeandslated to come into effect on 1 January2022 (“proposed regulations”). 21

Other forums are already tackling theissue of Arctic shipping and theWhile Norway’s proposed regulations

environment,sois the focus of this essay, it is only theinternational trade law play in thismost recent of unilateral initiatives bynexus? The IMO is a specialized agency

Arctic States to introduce stronger

that focuses on shipping and isenvironmental restrictions for Arctic

implementing the HFO ban in the

shipping activities. Canada enacted theArctic. 25 The Arctic Council Working

Arctic Waters Pollution Prevention Act inGroups1970 which prohibits all discharge fromrecommends action for States.

ships in Arctic waters. 22 This restricts

these forums, States could resolve

examines

what

HFO

role

does

use

and
26

At

The
Svalbard
Treaty,(enteredinforce:
14
August1925),
online:<https://www.jus.uio.no/english/services/library/treaties/01/1-11/svalbard-treaty.xml>
20 Ragnhild Groenning, “The Norwegian Svalbard Policy – Respected or Contested?” (22 November2017) The Arctic Institute, online: <https://www.thearcticinstitute.org/norwegian-svalbard-policyrespected-contested/>.
21 Malte Humpert, “Norway announces plans to ban HFO around Svalbard, leapfrogging proposed
IMO regulation” (13 November 2020) Arctic Today, online: <https://www.arctictoday.com/norwayannounces-plans-to-ban-hfo-around-svalbard-leapfrogging-proposed-imo-regulation/>.
22 Transport Canada, “Arctic Waters Pollution Prevention Act (AWPPA)” (19 July 2012) Government of
Canada, online: <https://tc.canada.ca/en/marine-transportation/arctic-shipping/arctic-waters-pollutionprevention-act-awppa>.; “Consultation”; Coelho.
23 Simon Bullock et al., “Shipping and the Paris climate agreement: a focus on committed emissions”(2020) 2:5 BMC Energy 1.
24 Costas Paris, “Europe Invites a Trade Battle in its Fight Against Shipping Pollution” (27 September2020) Wall Street Journal, online: <https://www.wsj.com/articles/europe-invites-a-trade-battle-in-itsfight-against-shipping-pollution-11601204401>.
25
International
Maritime
Organization,“Introduction
toIMO”
online:<https://www.imo.org/en/About/Pages/Default.aspx>.
26
Protection of the Arctic Marine Environment, “Heavy Fuel in the Arctic” online:<https://www.pame.is/projects/arctic-marine-shipping/heavy-fuel-in-the-arctic-phase-i>.
57
19disagreements on national measures

shipping relates to Article V, which

through diplomacy and negotiation on

guarantees the freedom of transit forthe sidelines, since these forums deal

goods in transit. 28

with multilateral initiatives. At thesame time, in considering a bolder step

The potential of the WTO’s disputethan that contemplated by the IMO,

settlement processes to halt Norway’s

Norway is poised to upend the

proposed regulations to protect thenegotiatedaArctic environment raises concerns onchallenge from countries such as Russia

whether trade law can adapt to thewhich would be affected by the lack of

current environmental crisis. 29 In thea transition period in Norway’s ban.

past, it has shown that is has been

One of the methods in which Russia

capable of doing so. For example, thecan challenge the validity of Norway’s

GATT Panel’s decision in the 1994 Tuna

proposed ban, should negotiations fail,– Dolphin case reversed its earlierisdisputedecision in the 1991 Tuna – Dolphin casesettlement processes. The invocation ofto allow for states to justify trade

trade law is possible, because while therestrictions for environmental concerns

IMO and the Arctic Council may bebeyond its territorial limits. 30 The

more

law

following shows that the progressiveinevolution of trade law could mean thatfacilitating the trade of goods along

exceptions in GATT under Articles XX

these routes. Shipping is central to theand XXI or GATS Articles XIV andmovement of goods in the world

XIVbis may be sufficiently flexible toeconomy, which implicates the GATT

accommodate

and the General Agreement on Trade in

regulations. This essay focuses on theServices

GATT, although the GATS analysis

settlement,

throughthesuitable

nonetheless

WTO’s

forums,has(GATS).

a27

inviting

trade

vital

In

the

role

GATT,

Norway’s

proposed

General Agreement on Trade in Services, 15 April 1994, Marrakesh Agreement Establishing the World
Trade Organization, Annex 1B, 1869 UNTS 183 (entered into force 1 January 1995); Secretariat,“Maritime Transport Services” (7 June 2010) S/C/W/315 World Trade Organization at 30, online:<https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/S/C/W315.pdf&Open=True>.;
World
Trade
Organization,“Maritime
Transport”
online:<https://www.wto.org/english/tratop_e/serv_e/transport_e/transport_maritime_e.htm>.;
Vitaliy
Pogoretskyy, “Freedom of Transit and the Principles of Effective Right and Economic Cooperation: Can
Systemic Interpretation of GATT Article V Promote Energy Security and the Development of anInternational Gas Market?, (2013) 16:2 J Intl Econ L 313 at 318.
28 GATT Article V.
29 See Michael Trebilcock & Joel Trachtman, Advanced Introduction to International Trade Law, 2nd ed(Cheltenham, UK: Edward Elgar, 2020) at 187.
30 Trebilcock & Trachtman at 188, 190.
58
27

would be similar given that thevessels or of other means of transport.

wording in the exceptions is identical in….

both agreements.

4. All charges and regulations imposedby contracting parties on traffic in

Potential Problems under Article V of
the GATT

limit the freedom of transit under
Article V of the GATT. Article V
establishes a freedom of transit for all“traffic in transit,” which are goods
moving from one State across theterritory of another State heading
towards the final destination State. 31
The relevant clauses are Articles V:2
and V:4, which states:
2. There shall be freedom of transit
theterritory

of

each

contracting party, via the routes mostconvenient for international transit, fortraffic in transit to or from the territory
of

other

contracting

parties.

No

distinction shall be made which isbased on the flag of vessels, the place oforigin,contracting parties shall be reasonable,
having regard to the conditions of the

Norway’s proposed regulations may

throughtransit to or from the territories of otherdeparture,entry,

exit

or

destination, or on any circumstances
relating to the ownership of goods, oftraffic. 32
Under Norway’s proposed regulations,vessels

operators

imprisonment 33
departingforCountry

face

fines

using
A

or
HFO

transiting

through Svalbard’s waters destined toCountry

B,

which

could

impedefreedom of traffic in transit under
Article V:2. If the vessel were in transit
in a route that was most convenient,would Norway’s proposed regulations
be viewed as “reasonable?” under
Article V:4?
There are only two Panel reports
interpreting Article V:2: the 2009
Colombia – Indicative Prices on Ports ofEntry (Ports of Entry) 34 and the 2019
Russia — Measures Concerning Traffic in
Transit (Traffic in Transit). 35 The Panel’s

Cherise Valles “Article V: Freedom of Transit” in Rüdger Wolfrum, Peter-Tobias Stoll & Holger P
Hestermeyer eds, WTO – Trade in Goods (Leiden, The Netherlands: Brill, 2009) 183 at 186.
32 GATT Articles V:2, V:4.
33 See footnote 16.
34 Colombia – Indicative Prices on Ports of Entry (2009), WTO Doc WT/DS366/R (Panel Report), online: <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/366R.pdf&Open=True>[Ports of Entry).
35 Russia – Measures Concerning Traffic in Transit (2019) WTO Doc WT/DS512/R (Panel Report), online:<https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/DS/512R.pdf&Open=True>[Traffic in Transit]
59
31

decision in the Traffic in Transit case has

Arctic waters is along the Northern Sea

limitedRoute, which goes along the coast of

application

toproposed regulations,

Norway’stheRussia and far south of the Svalbard

various transit requirements found toarchipelago waters. In the future, thebe prima facie violations of Article V:2

melting

made distinctions based on the place ofshipping route across the Arctic Ocean,

departure, destination, origin, andand transiting in Svalbard’s waters

entry of traffic in transit, rather than the

becomes one of the most convenientmode of transit. 36 Other cases relatingroutes. 40

to Article V:2 have been settled, 37 andmultiple “most convenient routes,”

Ports of Entry provides the most helpful

meaning that if another one exists

guidance. In Ports of Entry, the Paneloutside of Svalbard’s waters, this clauseinterpreted “freedom of transit” in

may not be implicated at all. However,

Article V:2 as requiring “unrestricted

it is not clear if it would be up toaccess via the most convenient routes

Norway or the vessel operator tofordeterminethepassageinternational transit.”

because

of

goods

in

ice

opens

Article

what

V:2

the

transpolar

contemplates

these

“most

For Norway’s

convenient routes” should be, andproposed regulations, vessels using

whether the route near Svalbard can

HFO would be restricted from using

indeed be ruled out. 41 The second

certain routes, namely those that aresentence in the provision prohibits

close to Svalbard. While transport does

States from making distinctions in the

not have to be guaranteed on all routes,

treatment of goods that are traffic intransit must be provided on routes

transit based on the vessel of the“mostconvenient”

38

for

transport

through its territory. 39 Much of thecurrent international shipping throughTraffic in Transit at para 7.196.
The most relevant would have been Federal Republic of Germany – Restriction on the circulation ofAustrian lorries. Austria enacted a regulation limiting the traffic of certain heavy trucks during night
hours on certain Austrian transit roads that was applicable to all trucks, including Austrian trucks. This
dispute was settled by consultations. Federal Republic of Germany – Restriction of Circulation of Austrian
Lorries(1990)GATT
Doc
DS14/1(Request
forConsultations),
online:<https://www.wto.org/gatt_docs/English/SULPDF/91490056.pdf>.
38 Emphasis added. Ports of Entry at para 7.401.
39 Ports of Entry at para 7.402.
40 Laurence C Smith & Scott R Stephenson, “New Trans-Arctic shipping routes navigable by midcentury” (2013) Proceedings of the National Academy of Sciences E1191 at E1192, online:<https://www.pnas.org/content/pnas/110/13/E1191.full.pdf>
41 Valles at 188.
60
36
37

goods. 42 Norway’s proposed regulationin the sensitive Arctic environment. A

makes the distinction with goods

complete ban on HFO use in the Arctictransported with different vessel fuels.

has also been agreed upon by the IMO,Distinctionsofsuggestingthat

transport has not been interpreted

perceived

reasonable

before a Panel.

international community as well.

Article

V:4

based

and

on

modes

the

scope

of

Norway’s

ban

by

is
the

Exceptions under the GATT

“reasonable” regulations has not beeninterpreted before the WTO. In Ports ofIf

Entry, the States did not raise Article

infringe

V:4 in their arguments. In Traffic inprovision of the GATT (or GATS),

Transit,aNorway can justify these regulations“unreasonableness”

under Articles XX and XXI (or GATS

should involve analysing the rationale

Articles XIV and XIVbis). These articles

or purpose of the measure, andallow states to enact a range of policy

whether the means used to address thatmeasures that would otherwise berationale are adequate and fair. 43

inconsistent with their

However, the Panel in Traffic in Transit

under the GATT.

Ukraineregulation’s

arguedthat

declined to address this issue.

44

Norway’s

proposed

ArticleVorregulations
any

other

obligations

In acommentary on the Article V:4, Cherise

Article XX

Valles suggests using the approachtaken by the Panel in Dominican

States’Republic – Import and Sale of Cigarettes ofprovisions of the GATT may beusing the dictionary definition ofjustifiable if they fall within the list of“reasonable,”thispolicy objectives under Article XX,

interpretation arose in the context ofsubject to the introductory provision

Articleproposed(the chapeau). Two provisions are mostregulations are a reasonable solution to

relevant to the topic of trade and thelimiting the use of HFO in light of theenvironment: Articles XX(b) and XX(g).

X. 45

although
Norway’sregulations

that

infringesevere consequences of a potential spill“Analytical Index of the GATT – Article V, Jurisprudence ” (June 2020) World Trade Organization, atpara 1.4.1 online: <https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art5_jur.pdf>;
Ports of Entry at para 7.402.
43 Traffic in Transit at para 7.209.
44 Traffic in Transit at para 7.199.
45 Valles at 190-191.
61
42

Reformulated and Conventional Gasoline

Article XX(b)(US – Gasoline) held that a policy to
Article XX(b) allows States to take

reduce air pollution resulting from thenational

toconsumption of gasoline would fall

protect human, animal or plant life orunder Article XX(b). 50 An analogy

health.” 46 This involves examining

between reducing air pollution andfirstly, whether the measures protect

reducing HFO spills can be made sincehuman, animal, or plant life or health,both are necessary to protect the healthand secondly, whether these measuresof living beings within the environment

are necessary.

ormeasures“necessary

ecosystem.

Svalbard’s

marineecosystem includes seals, walruses,
First, Norway’s proposed regulations

whales, seabirds, and more, 51 and their

aim to protect the Arctic ecosystem 47 byhealth would be affected by a HFO

preventing HFO spills in the Arctic,

spill. 52 The risk of significant harm towhich includes the protection of animal

the ecosystem has been scientifically

and

not

shown to hardly be remote considering

considered a case with a policy withincreasing vessel traffic and limited

such a broad aim to protect an entire

cleanup infrastructure in the region. 53

ecosystem, and it is possible that a

The consequences of a HFO spill could

Panel would dismiss this objective as

have a “particularly severe” impact onbeing too broad. 48 However, the Panel 49

Arcticinplant

Unitedlife.

StatesPanels–haveStandards

forwildlifeandthemarineenvironment. 54

GATT, Article XX(b).
“Consultations.”
48 Peter-Tobias Stoll & Lutz Strack, “Article XX. Lit. B” in Rüdger Wolfrum, Peter-Tobias Stoll & Holger
P Hestermeyer eds, WTO – Trade in Goods (Leiden, The Netherlands: Brill, 2009) 497 at 507.
49 The US did not appeal the Panel’s conclusions on Article XX(b) and Appellate Body did not discuss
this issue. United States – Standards for Reformulated and Conventional Gasoline (1996) WTO Doc
WT/DS2/AB/R
at
9(Appellate
Body
Report),online:<https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009DP.aspx?language=E&CatalogueIdList=14573&CurrentCatalogueIdIndex=0&FullTextHash=&HasEng
lishRecord=True&HasFrenchRecord=True&HasSpanishRecord=True> [US – Gasoline].
50 US – Gasoline at 39.
51 Haakon Hop et al., “The marine ecosystem of Kongsfjorden, Svalbard” (2002) 21:1 Polar Research 167,
online: <https://polarresearch.net/index.php/polar/article/view/2136/5387>.
52 Svalbard’s marine ecosystem is also rich with micro-organisms. Hop et al. at 167. The WTO has notdecided whether micro-organisms would be protected under this provision, though the language of
Article XX(b) appears to protect all things living. Stoll & Strack at 506.
53 PAME Report at 13.
54 PAME Report at 13.
62
46
47

Second, while it is possible that

insignificant. Transport of goods on

Norway’s proposed regulations can be

Arctic shipping routes make up only achallenged as overly restrictive andsmall percentage of global trade. 58 In

therefore

appears

2019, only 165 out of a total of 1729

reasonable considering the impending

entering the Arctic Polar Code Area

IMO regulation that will ban HFO use

used HFO. 59 Other alternatives, such as

across the entire Arctic region in 2029.

issuing exemptions for certain vessels,

The Appellate Body in Brazil – Retreaded

are unlikely to protect the Arctic

Tyres stated that Panels will look to theecosystem to the same degree given theextent of the measure’s contributions to

unpredictability of ice conditions in

its objective in light of the importance

Arctic navigation that creates an ever-of the interests and its impact onpresent risk for HFO spills. 60

unnecessary,international trade.

55

itFurthermore,

Panels will consider alternatives. 56 In

Article XX(g)EC – Asbestos, the Appellate Body notedthat any alternative measures to the

Article XX(g) less clearly applies to

ban

on

asbestos

use

would

be

Norway’s

allowing

Franceto

Article XX(g) allows States to adopt

achieve its desired level of healthmeasures “relating to the conservation

protection.

of exhaustible natural resources if such

ineffectiveat57

The sensitivity of the

proposedregulations.

Arctic environment leaves little roommeasuresfor error, thus making the interests

conjunction

extremely important. Currently, thedomestic

impact of a HFO ban in the Arctic on

consumption.” 61international

examining firstly, the content of the

trade

is

largely

are

made

with

effectivein

restrictions

on

productionThisor
requires

Brazil – Measures Affecting Imports of Retreaded Tyres, (2007) WTO Doc WT/DS332/AB/R (Appellate
Body
Report)
at
para
156,
online:<https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/332ABR.pdf&Open=True>.
56 World Trade Organization, “WTO rules and environmental policies: GATT exceptions” online:<https://www.wto.org/english/tratop_e/envir_e/envt_rules_exceptions_e.htm>.
57 Stoll & Strack at 512.
58 Zhaojun Wang, Jordan A Silberman & James J Corbett, “Container vessels diversion pattern to transArctic shipping routes and GHG emission abatement potential” (2020) Maritime Pol’y & Mgmt.
59 PAME Report at 18.
60 Rachael Gosnell, “The Complexities of Arctic Maritime Traffic” (30 January 2018) The Arctic Institute,
online: <https://www.thearcticinstitute.org/complexities-arctic-maritime-traffic/>.;Congressional
Research Service, Changes in the Arctic: Background and Issues for Congress, (15 December 2020) at 65-69
online: <https://fas.org/sgp/crs/misc/R41153.pdf>.
61 GATT Article XX(g).
6355measure and its relationship with the– Shrimp), the Appellate Body noted

objective, and second, whether parallelthat a measure relates to its objective

domestic measures exist.

when a “reasonable” relationship exists
between

the

means

and

ends. 67

First, the measure must conserve

Norway’s proposed HFO prohibition is

exhaustible

andclearly linked to the conservation of“relate to” this objective. Previous

clean water by preventing the spread ofPanel decisions have largely discussed

pollutants in the form of black carbon“exhaustible natural resources” in theand potential contaminants in the event

context of living natural resources, suchof an HFO spill.

naturalresources

as tuna 62 and sea turtles, 63 but it ispossiblethat

extended

Second, it is unclear whether theunderstanding is available. Norway’s

parallel domestic measures that exist

proposed regulations do not name an

are directed at domestic “production“exhaustible natural resource” which it

andseeks to conserve. 64 The regulations

proposed regulations are made in

could be interpreted as conserving

conjunction with domestic measures“clean water,” similar to how the Panelsince they apply to all vessels enteringin US – Gasoline accepted the US’

Svalbard’s

position that “clean air” constitutes an

Norwegian ones. This suggests thatexhaustible natural resource. 65 This

Article XX(g) would apply. However,approach would be consistent with thesince the regulations relate to the mode

WTO Agreement’s preamble, whichofemphasizes

and“production or consumption” of goods,

preservation of the environment. 66 In

it is possible that Article XX(g) is notUnited States – Import Prohibition of

implicated at all. No existing cases

Certain Shrimp and Shrimp Products (UScover this distinction.

the

an

protection

consumption.”transport,

waters,ratherNorway’s

including

than

the

United States – Restrictions on Imports of Tuna (1994), WTO Doc DS/29/R (Panel Report) at paras 3.503.53, online: <https://www.wto.org/english/tratop_e/dispu_e/gatt_e/92tuna.pdf>.
63 United States – Import Prohibition of Certain Shrimp and Shrimp Products (1998), WTO Doc
WT/DS58/AB/R(Appellate
Body
Report)atparas
135-142,
online:<https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/58ABR.pdf&Open=True>[US – Shrimp].
64 “Consultations.”
65 US – Gasoline at 9-10.
66 Preamble, WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization, 15 April
1994, 1867 UNTS 154 (entered into force 1 January 1995).
67 US – Shrimp at paras 136, 141.
64
62

to all countries, Russia might object on

Chapeauthe basis that most ships using HFO are
Measures taken within the scope of

Russian-flagged, and the application of

Articles XX(b) or XX(g) must follow thethe regulations effectively discriminate

introductory clause of Article XX (theagainst Russia. Russia has similar“chapeau”). Article XX states that thesensitive

application

cannotconditions and concerns, but instead“constitute a means of arbitrary or

may consider the transition period

unjustifiable discrimination between

necessary to continue the shipment ofcountries where the same conditions

goods in the interim. On the otherprevail, or a disguised restriction on

hand,

of

measures

Arcticsince

environmental

Norway’s

proposed

Europeanregulations only applies to the waters

Communities – Measures Prohibiting thearound Svalbard, which has a unique

Importation

andMarketingSeal

ecosystem and a unique international

Products, 69

theAppellateBody

status, it is possible that concerns about

interpreted “arbitrary and unjustifiable

ecosystem protection are heightened

discrimination” to mean “whether

there than in other parts of Russia.

international

trade.” 68

Inofdiscrimination can be reconciled with,or is rationally related to, the policy
objective.”

70

Article XXI

The distinction between

vessels using HFO and vessels that do

Article XXI(b) permits States to takenot use HFO is rationally related to themeasures “which it considers necessary

protection of Svalbard’s ecosystem byfor the protection of its essential

minimizing pollution and reducing thesecurity interests…(iii) taken in time of

risk

war

of

spills.

discrimination

Inlooking“between

at

or

other

emergency

incountries

international relations.” 71 In Traffic in

where the same conditions prevail,” itTransit, the Panel determined that theis important to consider that any

phrase “which it considers necessary”

challenges from Norway’s HFO ban isincludes an objective requirement. 72

likely to come from Russia. While

Furthermore, the Panel determined

Norway’s proposed regulations applythat“emergency

ininternational

GATT Article XX.
European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (2014)
WT/DS400/AB/R (Appellate Body Report).
70 Trebilcock & Trachtman at 193.
71 GATT Article XXI(b).
72 Traffic in Transit at para 7.102.
65
68
69

relations” is objectively determined,

to Norwegian security.” 76 This includes

and refer generally to cross-borderclimate change and increased humansituations that arises unexpectedly andactivity in the region. 77 The paper also

requires urgent action relating tolater states that climate change is adefence, military, law, and public ordersecurity challenge requiring a global

interests. 73 An emergency must go

response. 78 A ban on HFO use helps tobeyondeconomic

tackle climate change through reducing

differences between States. 74 Someblack carbon emissions and the risk of ascholars have argued convincingly thatspill in Svalbard’s waters.

climatepolitical

changeorqualifies

asan“emergency in international relations”

Whether

Norway’s

proposedsince security could encompass non-regulations

istraditional threats, such as climate

emergency depends largely on how thechange or pandemics, as stated in

final text is worded. While climate

different national security strategies

change means that the world is

and United Nations documents. 75

accelerating towards an unliveable

responding

toanworld by the end of this century, Panels
Norway’s proposed regulations could

may not interpret this as imminent of

be exempted under Article XXI(b) as

an emergency as the outbreak of a war

necessaryorsecurity

toprotect

interests.

its

essential

Norway’s

conflict.

Nonetheless,

the

most

overwhelming scientific data seems torecent white paper on Norwegiansuggest that urgent action is required toforeign and security policy asserts:

maintain the public order interest of“Developments in the Arctic are crucial

humanlife. 79An

alternative

Traffic in Transit at paras 7.73-7.77.
Traffic in Transit at para 7.75.
75 J Benton Heath, “Trade and security among the ruins” (2020) 30 Duke J Comp Intl L 223 at 239-241;
Pieter van Vaerenbergh & Angshuman Hazarika, “Climate Change as a Security Risk: Too Hot toHandle?” (2020) J World Trade 417 at 423.
76 The place of the oceans in Norway’s foreign and development policy— Meld. St. 22 (2016–2017) Report to theStorting (white paper), (2017) Norwegian Ministry of Foreign Affairs at 14, online:<https://www.regjeringen.no/contentassets/1b21c0734b5042e489c24234e9927b73/engb/pdfs/stm201620170022000engpdfs.pdf>. [Norway’s White Paper].
77 Norway’s White Paper at 14.
78 Norway’s White Paper at 40.
79 Matthew Taylor, Matthew Weaver & Helen Davidson, “IPCC climate change report calls for urgent
action to phase out fossil fuels – as it happened” (8 October 2012) The Guardian, online:<https://www.theguardian.com/environment/live/2018/oct/08/ipcc-climate-change-report-urgentaction-fossil-fuels-live>.
66
73
74

characterization

is

that

the

“emergency” is the threat of HFO spill,ensure that the Treaty’s Contracting
Parties can exercise their right to fish.

which may not meet the temporal
requirement of an emergency due to its
preventative objective.

Norway’s proposed ban on HFO use by

Article XXI(b)(iii) also requires that the
emergency

haveacross-bordercharacter. The pollution from HFO
powered ships creates black carbon, atype of pollutant that contributes toglobal warming, affecting everyone
everywhere. 80 Additionally, a HFO
spill located exclusively in Svalbard’s
waters may nonetheless have a crossborder nature, due to the uniqueinternational status of the archipelago
under the Treaty of Svalbard. This Treaty
gives all ships and nationals the right tofish in Svalbard’s territorial waters aspart of their rights in the archipelago,
but only allows Norway to takeenvironmental measures in recognitionof their sovereignty over the lands. 81
This right to fish would be impaired inevent of an oil spill, which would not
only kill the fish, but likely restrict
access to the area for an extended
period of time during the cleanup. As aresult,Norwaymay

Conclusion

have

a

responsibility under this Treaty to takemeasures, such as a ban on HFO use, tovessels transiting through any of
Svalbard’s waters is a crucial step totake in the protection of the sensitive
Arctic environment. This proposed
regulation is intended to accelerate theprogress on climate action where theresults of multilateral negotiations hasdelayed a rapid response. At the sametime, it invites criticism from countries
that would be negatively affected bythese regulations, which do not have atransition

period

as

the

IMO’s

proposed regulations do, that thesemeasures are unnecessarily harmful totrade, and therefore should be struck
down.
Trade law has proven to be capable ofadapting over time to responding tointernational climate crisis. 82 Norway’s
proposed regulations could survive
challenges to it under international
trade law, which should be reassuring
to States considering imposing similar
and more stringent regulations toprotect the Arctic marine environment.

Climate & Clean Air Coalition, “Black Carbon” online: <https://www.ccacoalition.org/en/slcps/blackcarbon>.
81 The Svalbard Treaty, Article 2.
82 Trebilcock & Trachtman at 192.
67
80‘‘Norway’s proposed regulations could

Urgent action is needed on climate

survive challenges to it under internationalchange issues, and States should feeltrade law, which should be reassuring toconfident in taking unilateral actions toStates considering imposing similar and moreachieve this aim.

stringent regulations to protect the Arctic
marine environment.’’

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Hestermeyer eds, WTO – Trade in

November 2020)

Goods (Leiden, The Netherlands:

online:Brill, 2009) 183.

<https://demaribus.net/2020/11/1

van Vaerenbergh, Pieter & Angshuman
Risk:

Too

Hot

De

(11
Maribus,1/norway-hfo-ban-in-svalbard-

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Security

proposed”

proposed/>.

toGosnell, Rachael. “The Complexities ofArctic71

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Traffic”(30

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online:<https://www.nationalgeographi<https://www.thearcticinstitute.oc.com/environment/2019/03/oil-rg/complexities-arctic-maritime-

spills-30-years-after-exxon-

traffic/>.

valdez/>.

online:Groenning, Ragnhild. “The Norwegian

Magnus Eger, Karl. “Effects of Oil Spills

Svalbard Policy – Respected orin Arctic Waters” (2010) Arctis

Contested?” (22 November 2017)

Knowledge

The<http://www.arctis-

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online:Hub,online:<https://www.thearcticinstitute.o

search.com/Effects+of+Oil+Spills+

rg/norwegian-svalbard-policy-

in+Arctic+Waters >.

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Hancock, Lorin. “Six ways loss ofArcticice

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2020),

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ice/processes/albedo.html >.

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Journal,

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Arctic2020)

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11601204401>.

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Prior, Sian. “Why the IMO’s draft

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Promoting sustainable investment inand investment, is a common theme

the Arctic: the role of the Arcticthat appears in the Arctic policies of theInvestment

theArctic States as well as of the observer

Arctic Economic Council’s Code ofStates of the Arctic Council. We can

Ethicsbriefly

Protocolandrecallthe2020

Sweden's

strategy for the Arctic region, where
Federica Cristani*

Sweden committed to “contribute tosustainable trade and investments in

The Arctic region has become a “great

the Arctic region, and work to ensure

economic frontier”, hosting economic

that the increase in economic activity inactivities that exceed US$500 billion per

the Arctic benefits local economic

year, 1 and attracting a large amount ofgrowth […]”, 4 or the Strategy for theforeign investment (e.g. from China). 2

Arctic 2011–2020 of Denmark, which

The

and

makes it clear that “[t]here is a close

investment interests in the region may

correlation between […] trade andhave

investment opportunities, and […]increasingaeconomic(negative)

impact“sustainable development”
Arctic;andindeed,onof the3

promotingsustainable

healthandsocialsustainability“. 5development, and its linkage to trade* Senior Researcher at the Centre for International Law, Institute of International Relations Prague (CZ)
and Visiting Senior Researcher at the Arctic Governance Research Group, Arctic Centre of the
University of Lapland (FI). This contribution is built on a presentation given at the National XIX Legal
Research Conference 2021, Sustainable and Responsible Law for Society, organized by the Faculty of
Law and the Arctic Centre of the University of Lapland on 25-27 August 2021.
1
2

Council on Foreign Relations (2014), The Emerging Arctic (), https://www.cfr.org/emerging-arctic/#!.
Guggenheim(2021),

The

Arctic:

One

of

the

Last

Great

Economic

Frontiers,

https://www.guggenheiminvestments.com/institutional/firm/sustainable-investing-esg/arctic-is-oneof-the-last-great-economic-frontiers.
3

For the scope of this paper, we inted “sustainable development” as was described in the 1987

Bruntland Commission Report as “development that meets the needs of the present withoutcompromising the ability of future generations to meet their own needs”. Report of the World
CommissiononEnvironment

andDevelopment

:

"Our

commonfuture"(1987),

https://digitallibrary.un.org/record/139811?ln=en.
4

Sweden, Strategy for the Arctic region (2020), https://www.government.se/information-material/2020/11/swedens-strategy-for-the-arctic-region2020/#:~:text=Sweden's%20strategy%20for%20the%20Arctic%20region%20presents%20the%20Govern
ment's%20objectives,and%20the%20environment%3B%20polar%20research%3B.
5

Denmark,

Strategyforthe

http://library.arcticportal.org/1890/1/DENMARK.pdf.
74

Arctic

2011–

2020

(2011),

When

it

comes

to

the

relevant

countries, they do not include a precise

international economic regulation, we

reference to the Arctic region and to

can count a number of internationalhoweconomic agreements - which also

activities should be promoted there.

“sustainable”

investment

apply to the Arctic region - that include
a reference to sustainable development:

An explicit link between investment

we

and

can

recall,forexample,thesustainable

development

canPreamble of the Marrakesh Agreement

instead be found in two soft law

establishingTrade

instruments specifically drafted for theOrganization, 6 Chapter 22 on Trade

Arctic region: the World Economic

and sustainable development of theForum´s Arctic Investment Protocol

Comprehensive Economic and Tradeand the Arctic Economic Council’s

Agreement
CanadatheWorldbetween(CETA),

7

the

EU

and

Code of Ethics. Both instruments aim to

SectionIVonfoster“Investment

anddevelopment”

ofComprehensive

sustainable

development

sustainablethrough responsible investment andChina-EU

good business practices.

theAgreementon

Investment 8 and the Preamble of the

The Arctic Investment Protocol was

Canada - China BIT. 9

adopted in the framework of the World

Nevertheless,althoughEconomic

these

instruments are applicable to the Arctic

Forum

in

2016, 10

andprovides a framework of reference for

According to which, “[t]he Parties to this Agreement, Recognizing that their relations in the field oftrade and economic endeavour should be conducted […] in accordance with the objective of sustainable
development […]”. Marrakesh Agreement establishing the World Trade Organization (1994),
https://www.wto.org/english/docs_e/legal_e/04-wto_e.htm.
7 Comprehensive Economic and Trade Agreement between the EU and Canada (2017),
https://ec.europa.eu/trade/policy/infocus/ceta/#:~:text=The%20EU%2DCanada%20Comprehensive%20Economic,of%20the%20agreement%20now%20applies.&text=it%20improves%20and%20secures%20EU,to%20the%20Canadian%20servi
ces%20market.
8
China-EU
Comprehensive
Agreementon
Investment(2020),
https://trade.ec.europa.eu/doclib/press/index.cfm?id=2237.
9 According to the Preamble, the Parties “[r]ecogniz[e] the need to promote investment based on theprinciples of sustainable development”. Agreement Between the Government of Canada and theGovernment of the People's Republic of China for the Promotion and Reciprocal Protection of
Investments(2012),
https://investmentpolicy.unctad.org/international-investmentagreements/treaties/bilateral-investment-treaties/778/canada---china-bit-2012-.
10 Arctic Investment Protocol. Guidelines for Responsible Investment in the Arctic (2016),
6

https://arcticeconomiccouncil.com/wpcontent/uploads/2020/01/aecarcticprotocol_brochure_ir456_v16.pdf.
75

carrying out responsible investment inInfrastructure, 11 which launched, in

the Arctic. More specifically, it includes

January 2019, an on online platformthe following six key principles onrequesting stakeholders to submit best

responsible Arctic development: (1)practices in order to strengthen thebuildProtocolresilientsocieties

througheconomic development; (2) respect andincludelocal

Indigenous

communities

peoples;(3)

andmonitorits

implementation. 12

andpursueIn order to further strengthen themeasures to protect the environment ofprinciples included in the Protocol, in

the Arctic; (4) practice responsible and2018, the Arctic Economic Council

transparent(5)

issued a Code of Ethics, 13 which isconsult and integrate science andspecifically intended to businesses andtraditional ecological knowledge; andinvestors. The Code of Ethics is built on(6) strengthen pan-Arctic collaboration

six fundamental values: collaboration,and sharing of best practices.

sustainability,businessmethod;transparency,

competency, innovation and peace.
The Protocol has received support frommultinational corporations, investment

Both the Arctic Investment Protocol

firms and industry groups, like Statoil,and the Code of Ethics encourage theShell, Barclays, Guggenheim Partners,

development

Pt Capital, Spanida CIS, Tschudi

practices:

Shipping Company AS, China Ocean

investment to be conducted in a fair,

Shipping Group Co and Norwegianlegal and transparent manner, while

Shipowners’ Association.

the Code of Ethics calls for businesses

of

the

good

business

Protocolrequiresto behave in an open and honest
As regards the implementation of themanner.

Protocol, a key role is played by the
Arctic Economic Council´s
Group

11

Arcticon

Working

Investments

Economic

Council,

Both instruments seek to strengthen

andcollaboration

Investments&

Infrastructureamong

Working

ArcticGroup,

https://arcticeconomiccouncil.com/workinggroups/investments-infrastructure-working-group/.
12

Arctic Economic Council, Investments & Infrastructure Working Group, Submission Form: Best

Practices in line with Arctic Investment Protocol - Guidelines for Responsible Investment in the Arctic,
https://arcticeconomiccouncil.com/about/arctic-investment-protocol/.
13

Arctic Economic Council, Code of Ethics (2018), https://arcticeconomiccouncil.com/wp-

content/uploads/2018/06/Code-of-Ethics.pdf.
76

stakeholders,encouraging

the“platforms for cooperation”, as recently

adoption of common standards andpointedbest practices when it comes to making

Parliamentarians

investment in the region. Indeed, such

Economic Council. 14

instruments

can

help

out

by

the

ArcticandtheArcticcreating© Jasim Sarker

14

Arctic Parliamentarians, Signing of Papers on Sustainable Development in the Arctic (2021),

https://arcticparl.org/signing-of-a-papers-on-sustainable-development-in-the-arctic/.
77

Traditional

cultural

expressions:use of traditional cultural expressions

challenges of the Russian Intellectual(folklore) by indigenous communities

property

who invented them and transmitted

law

for

indigenous

communities of the Russian Norththem from generation to generation.
The review of the existing loopholes inPavel Tkach *the Russian intellectual property law
will be concluded by defining theThis year, at the Northern Forum in

actual consequences of such limitations

Yakutsk, the President of the Council of

to indigenous communities.

the Association Reindeer Herders oftheWorld,

Sergei

Kharyuchi,
1. Introduction to the legal andannounced the possible creation of theintellectual

property

registerfactualofindigenous people of the North.
includefolklore,

of

the

Law.

According to Kharyuchi, the register
could

definitionindigenous people in Russian1

traditional

knowledge in health protection, andDefinition of the indigenous peoples ofsurviving

conditions.

the North has been declared in Federal

Grigory Dyukarev, Chairman of the

Law of 30.04.1999 N 82-FZ (as amended

Association of Indigenous Minorities ofon 13.07.2020) on guarantees of the

Taimyr, noted that the indigenous

rightspeoples of the Arctic should share theindigenous peoples of the Russian

profits that business receives using

Federation

their knowledge and traditions. 2 The

Government of the Russian Federation

mentionedof 04.02.2009 N 132-r on the Concept ofinextremeinitiativeraised

the

of

the
and

small-populated
Order

SustainableculturalIndigenous Peoples of the North,ofindigenous

of

the

question of the current recognition
identity

Development

of

the

communities in Russia.

Siberia and the Far East of the RussianThis article aims to evaluate legal

Federation.

obstacles limiting exclusive access andindigenous peoples declared by theThedefinition

of

the

*

Junior Researcher, Arctic Centre University of Lapland, Arctic Governance research group1

National Accent (2021) “The rights of Northern people to their culture would be protected by theregister of intellectual property” access from <https://nazaccent.ru/content/36776-prava-severnyhnarodov-na-ih-kulturu-hotyat-zashitit-reestrom-intellektualnoj-sobstvennosti.html> (source in the
Russian language) (translation by author)
2

ibid
78

Federal Law N 82-FZ is a subject of

List

of

Indigenous

Communities,

disputes and adverse reactions frominstead of globally accepted the right of

the Polar law scientists. The disputeself-determination.

arose because the mentioned law does

indigenous people in the Russian

not recognise the concept of indigenous

legislation is a bureaucratic concept,

people itself and only recognises small-and rights related to freedoms andpopulated indigenous peoples. Small-guarantees of indigenous communities

populated indigenous people of theare also linked with the bureaucratic

North are the people living in theprocesses and ascertainment.

In

general,territories of the traditional settlementof their ancestors, preserving the
traditional

way

of

life,

2. Introduction

economic

totheRussianintellectual property law.

activity and crafts, numbering less than
50 thousand people in the Russian

The

Federation and realising themselves as

Federation on intellectual property law

independent ethnic communities. 3

is part of Russian civil law nowadays.
In

Categorisationofcommunitiesoflegislation

the

traditional,

the

Russiancomprehensive

structure of civil law, the primary

according to population created legal

regulation

discriminationindigenous

expressed in the Constitution of thecommunities populated by more than

Russian Federation and the Civil Code

50

Legal

of the Russian Federation. The Civil

discrimination in the mentioned case is

Code of the Russian Federation consists

reflected by the absence of legalofguarantees to indigenous communities

accordingly - Part One, Part Two, Part

other than small-populated ones. In

Three and Part Four of the Civil Codeaddition,

theof the Russian Federation. 4 The Federal

small-populated

Law of December 18, 2006, N 230-FZ

indigenous community is carried out"Civil Code of the Russian Federation.

based on the bureaucratic and complex

Part Four" is devoted to intellectual

process of inclusion into the Unified

property rights. This Law came into

thousandcommunity

3

againstthepeople.

recognition

as

a

of

four

of

legal

Federalrelations

Laws,

is

named

Federal Law of 30.04.1999 N 82-FZ (as amended on 13.07.2020) on Guarantees of the rights of thesmall-populated indigenous peoples of the Russian Federation (source in the Russian language)(translation by author)
4

Gavrilov E.P. (2018) “Intellectual Property Law of the Russian Federation: Legislation and Doctrine”.

In Patents and Licenses, 2018, N 8. (source in the Russian language) (translation by author)
79

force on January 1, 2008, and is

Civil Code of the Russian Federation

currently in force with numerous

defines the author as a citizen (person)

amendments.

whose creative work has created theresult of intellectual activity (clause 1 ofIntellectual property law aims toarticle 1228). 6 Opinion of the Chamberprotect a set of rights that a person

for Patent Disputes dated 07.02.2011(persons) has to the results of their(Appendix to the decision of Rospatentintellectual activity. Mentioned set of

dated 24.03.2011 on application N

rights include exclusive rights that are

2006714356/50) clarified that an authorof a proprietary nature, personal non-is a natural person. 7 But the definition

proprietary rights that are of a non-of work, like the definition of creative

proprietary nature and other rights that

activities, is absent in the Civil Code of

can have both proprietary and non-the Russian Federation (they are absent

proprietary nature. The Civil Code ofin other Russian and foreign laws, in

the Russian Federation regulates the set

international treaties). So the presenceof rights related to copyright andof creativity, creative activities, andneighbouring

patents,

work resulting from such activities is aselectional achievements, the topology

rather vague question. 8 If there is noof integrated microcircuits, production

dispute, then it is determined with thesecretsofauthor's consent and his counterparties

individualisation, and results of thein the contractual relationship, and inintellectual activities as a unified

the case of a dispute - by the court. 9 The

technology. 5 Article 1225 of the Civil

definition of an author does not

Code, in the form of an exhaustive list,

recognise a legal entity as the author ofdefines 16 categories of objects that canobjects

beprotection.

fields,(know-how),protected

by

the

means

intellectual

placedunder

Nevertheless,copyrights
the

legal

property law, including the objects that

entity can hold exclusive rights to

can be considered parts of traditional

particular

objectsofintellectual

cultural expressions.
5Federal Law of 18.12.2006 N 230-FZ "Civil Code of the Russian Federation. Part Four" (source in the

Russian language) (translation by author)
6

ibid

7

Rospatent (2011). Decision of Rospatent dated 24.03.2011 on application N 2006714356/50. Moscow,

Russia (source in the Russian language) (translation by author)
8

Savina V.S. (2020). “Public law restrictions and prohibitions in intellectual property law”. In IP.

Copyright and related rights, 2020, N 2 (source in the Russian language) (translation by author)
9

ibid
80

property law, for example, resulting

space to define characteristic elementsfrom an agreement for the alienation ofof

exclusive rights in favour of anotherIntellectual Property Organisation, in aperson (including a legal entity). In

booklet related to the concept of theaddition, the legal entity can be

traditionalrecognised as the producer of thedefined that characteristic elements

database(s) following article 1333 of the

include the facts that objects ofCivil Code. 10

traditional cultural expressions are

such

a

concept.

cultural

The

World

expressions,

usually:
As a result, defining approach in the
Russianintellectual

propertyi.

authorprotection

down

from

one

generation to another, either

isorally or by imitation,

concentration around individualisationofhandedii.

andreflect a community's culturaland social identity,collectivisation of objects included iniii.

the public domain, to which we willconsist of characteristic elementsof a community's heritage,

pay attention in the further sections.
iv.
3. Introduction to the concept ofmade by 'authors unknown'
and/or by communities and/orbytraditional cultural expressionsindividuals

communallyrecognised as having the right,
Traditional

cultural(expressionsofresponsibility or permission toexpressions

folklore)

do so,

meansv.

productions consisting of characteristic

often not created for commercial

elements of the traditional artistic

purposes but as drivers forheritage developed and maintained byreligiousaexpression,communityreflecting

the

or

by

individuals

traditionalvi.

artistic

andculturalconstantly evolving, developing

expectations of such a community. 11

and being recreated within the

The international definition of thecommunity. 12

traditional cultural expression is more

The

Russianacademic

literature

dynamic and not exhaustive, giving

defines traditional cultural expressions

10

ibid (no.5)

11

World Intellectual Property Organisation (2005). “Intellectual property and traditional culturalexpressions/folklore. Booklet No.1.” Geneva. Switzerland, access from<https://www.wipo.int/edocs/pubdocs/en/tk/913/wipo_pub_913.pdf>
12

ibid
81

in tight connection with the above-

By that, we would conclude thatmentioned characteristic elements in a

indigenous

more

and

freedoms to own traditional culturalindigenous

expressions are defined by the legal

communities as the most common

personality of a particular indigenous

stakeholders using the objects ofcommunity,

traditional

expressions.

particular object of traditional cultural

According to them, traditional culturalexpressions, and which type of rights

expressions are works of science,and freedoms the community wants toliterature and art, passed down fromenjoy.

dynamic

definition

acknowledges

culturalgenerationtogeneration,

peoples,

personalityisrightscharacteristics

and

of

a

without

specific authors, created and used byindigenous

people's

whose

legal

determinedin

4. Indigenous people in intellectual
property

relationsconcerning

traditional cultural expressions.

accordance with the national legislationoftheresidence

country. 13

The

The most common objects of traditional

definition implies that the plenitude ofcultural expressions are literature,

the rights and freedoms a particular

music and art. Article 1255 of the Civil

user can enjoy concerning traditional

Code defined these objects as objects ofcultural expressions depends on their

copyright or neighbouring rights. 15

legal personality in a particular legal

Article 1257 and 1258 define authors

relationship.

Legal

personality

in

and

intellectual

property

relationsispersons, with names and surnames thatusually determined by three factors:

can be mentioned. One of the featurescharacteristics of the subject (user),ofcharacteristics of the object, types of(folklore) is the lack of concrete author,

intellectual property rights that thelimiting access to copyright protection

subject wants to enjoy. 14

in the Russian legal system. Thatco-authors

traditional

only

culturalasconcrete

expressions

limitation is confirmed by article 1258,
13

Gazizova A.S. (2019). “On the protection of knowledge, cultural expressions and genetic resources”.

In Russian Law Journal, 2019, N 2 (source in the Russian language) (translation by author)
14

Federal Assembly of the Russian Federation (2019). “Analysis of the Russian and foreign legal

framework, international legal acts, as well as law enforcement practice in the field of protecting therights of indigenous peoples of the North, Siberia and the Far East of the Russian Federation”, accessfrom <http://duma.gov.ru/media/files/ac56at9WNIN403jBAeKGTGGbqfeyNPfX.pdf> (source in the
Russian language) (translation by author)
15

ibid (no.5)
82

paragraph 6 that exhaustively excluded

worth paying attention, the provision

folklore from objects that the copyrightof article 15, paragraph 4 uses thecan protect. 16 Numerus clausus list ofclause "may determine", which does

article 1304 did not include traditional

not have an imperative feature andcultural expressions itself to objects ofdoes not oblige any of the convention

neighbouring

countries

rights. 17

However,

toprotect

mentioned

according to international law, objects

category of objects. Russia ratified thewith unknown authors still can be

Convention but did not use theprotected by the copyright. Such option

mechanism of article 15, paragraph 4,

has been declared by Berne Convention

and prioritise the instruments definedfor the Protection of Literary andby domestic legislation.

Artistic Works of 09.09.1886 (as revisedon 28.09.1979) article 15 paragraph 4,

The Russian intellectual property law

according to which in the case of

and related practices imply that the

subject to two conditions the domestic

indigenous community's inability tolegislation of convention country may

define a concrete author usually leads

determine the competent authority

to the object's inclusion in the public

representing the author and competentdomain. Inclusion into the public

to protect the rights and ensure their

domain means that any person canobservanceconvention

freely use the object without anyone's

countries. 18 The first condition – object

consent or permission and without

should not be published. In otherpayment

words, the potential protection of the

Nevertheless, it is necessary to note that

Convention

appliestopublic domain objects can be freely

unpublishedobjects.

secondused only for uncommercial purposes.

in

other

only
The

a

of

result,remuneration.

condition – proved reasons to believeAs

that the author is a citizen of thecommunities do not have the exclusive

convention country. For example, therightsobject explicitly mentions that it was

expressions of folklore without acreated by a member or members of thedefined author because the protection

indigenous community residing on theof folklore as objects of intellectual

territory of the convention country. It isproperty is constructed from the

and

the

freedoms

indigenous
to16

ibid (no.5)

17

ibid (no.5)

18

Berne Convention for the Protection of Literary and Artistic Works of 09.09.1886 (as revised on

28.09.1979), access from <https://wipolex.wipo.int/en/text/283698>
83

ownperspective of the whole society andneighbouring rights can be seen in thepotential value for society, instead ofabsence of exclusive rights of thethe rights of indigenous people toproprietary nature in the set of rights

freely and exclusively use own culture.

defined by neighbouring rights. 20 The

The traditional cultural expressions of

performances

the indigenous people without definedcommunities based on their own

and concrete author(s) still can receive

folklore will be protected by technicallegal protection, and the indigenous

means of protection of neighbouringcommunity

exclusive

rights (exclusive marks), obligation inrights, but not to traditional cultural

the case of the reproduction to maintainexpressions itself.

the

can

receivebyrecognitionofindigenous

anoriginal

performance by the audience, andThe first, section of the Civil Codeobligation of reproductors to receive

dedicatedofconsent from original performers.21

included

But, the original performers will not be

underable to profit from the distribution or

performances,sharing of the performance script, as

article 1304 paragraph 1 sub-paragraphthe basis of such script will be the

1 included performances expressed in afolklore objects. Moreover, the Civil

form that allows their reproduction and

Code allows the use of objects of

distribution using technical means andneighbouring

repeated public performance. 19 In otherconsent of the copyright holder andwords, the literature object of the

without payment of remuneration in

folklore of the indigenous community

cases of free use of works for private

without a defined author will not be an

purposes;

object of copyright. However, a theatre

educational or cultural purposes; law

performance based on that object

enforcement purposes (as evidence inperformed by indigenous community

judicial proceedings); short-term use bymembers will be protected by the rightbroadcastingneighbouring with copyrights. The

result, de-jure, indigenous performers

difference between copyrights andcan enjoy neighbouring rights to theirtoneighbouring

theregulationrightsperformancesas

protection.

Amongobjectsrightswithout

informational,thescientific,

organisation. 22

As

19

ibid (no.5)

20

Novoselova L.A. (2017) "Intellectual Property Law. Textbook", Moscow, Russia: Statut (source in

the Russian language) (translation by author)
21

ibid

22

ibid (no.5)
84aown performances. Nevertheless, de-fromfacto, this type of intellectual property

inclusion of original object. 24

rightspossess

a

lot

of

processing,translation

andimplicit

limitations and potential collisions to

As we mentioned before, legal entities

holders.

can produce databases and can berecognised as the author. Following
regulation

Federal Law of 20.07.2000 N 104-FZ (asincluded the translation and processing

amended on 27.06.2018) on the GeneralofPrinciples

The

copyright

second,another(original)

work

works

(anthology,

composite

andofCommunities

Organizationofofsmall-populated

encyclopedia, database, website, atlasindigenous communities of the North,or other similar work) into the list of

Siberia and the Far East of the Russian

objects under copyright protection. 23

Federation,the

The authors and (or) co-authors willcommunities

canreceiveindigenous

communes,

allcomponents

of

the

indigenous
separate
and

into
such

mentioned above rights under thecommunes can obtain the status of non-intellectual property law. Traditionalcommercial legal entity. 25 By that, we

cultural expressions of the particularassume that a particular indigenous

indigenousbecommune can produce a database of its

published under a holistic collection.

own traditional cultural expressions,However, in that approach, there arecan be recognised as the author andseveral disadvantaging aspects. The

possess a set of rights under copyrightauthor(s) of the collection does notlaw. However, as we mentioned before,

receive exclusive rights for objects

the right to acquire a status of legal

included in the collection, and only theentity in the form of the indigenous

author of the original object will have acommune is entitled only to those

copyright. Moreover, the copyright forcommunities whose population is lesscollection, result of processing or

than 50 thousand people. That istranslation belonging to the author(s)anotherofagainstcommunity

collection,

processed

can

work,

discriminative
communities

loophole
with

more

translation does not prevent the others

23

ibid (no.5)

24

ibid (no.5)

25

Federal Law of 20.07.2000 N 104-FZ (as amended on 27.06.2018) on the General Principles ofOrganization of Communities of small-populated indigenous communities of the North, Siberia andthe Far East of the Russian Federation (source in the Russian language) (translation by author)85

population than the border defined byscenario

with

law.

expressionsoftraditional

cultural

explicitly

definedindigenous community, but without
explicitly defined concrete author, is

5. Conclusionsubsequent inclusion of the particular
The most obvious conclusion that is

object into the public domain. The

possible to make from the contribution

objects in the public domain cannot beloopholes

indigenous

used for commercial purposes andcommunities in the Russian Federation

cannot be modified, so the originality israrely can profit from using andimplicitly

sharing their own culture. Lack ofindigenous

values-concentratedofdemand acquiring exclusive rights forprotection the objects of intellectual

the object, even if they know and canproperty law led to the strict necessity

prove that the object is a vital part ofof the indigenous communities totheir culture. Thus, the community

determine the concrete author orappears in front of a choice: to find thetransform objects of own traditional

concrete author and acquire exclusive

cultural expressions to the form thatcopyright or to make a performance,

will be exclusively protected without

database, encyclopedia and declarethe concrete, natural person as an

own authorship, but at the same time toauthor, or to the form where it would

fail the protection of the original object

be possible to determine own author

from reproducing by other people. In

even if the original object fell under theone option – it is complicated to acquirecategory "author unknown" even if

exclusiveness; in another – it is easy tothere are strong assumptions that theprotect, but not exclusively. As a result,author is a member of a particularindigenous communities are in thecommunity.

ouroboros circle related to folklore

is

that

the

regulation

The

protectionofexpression

cannotinternational

traditionalbeculturalprotected.

Nevertheless,communities

cannotobjects where it is impossible to define

considereda concrete author.

sufficient. The most effective tool ofinternational protection is article 15 of

Nevertheless, the most disappointing,theallowingthat the intellectual property regulationindigenous communities to demandloophole is not the only challenge that

protection

authorities

indigenous communities in Russia face.

without strong hope that the request

Intellectual property law provided

will be satisfied. The most common

another demonstration of how the

Berne

Convention,
effortsfrom86

indigenous communities in Russia facecategory

disadvantages and bureaucracy related

indigenous community were removed

to the population and inclusion into thefrom the Russian legal system, just as

unifiedwe did in this contribution…

list

communities.

of

the

indigenous

And

this

raisedofthesmall-populatedaquestion, how good it would be if theReferences:
Berne Convention for the Protection of

Gazizova

A.S.

(2019).

Literary

protectionofknowledge,

andArtistic

Works

of

“On

the

cultural

09.09.1886 (as revised on 28.09.1979),

expressions and genetic resources”. In

accessRussian Law Journal, 2019, N 2

from<https://wipolex.wipo.int/en/text/2836

National Accent (2021) “The rights of98>

Northern people to their culture would

GavrilovE.P.

(2018)

Property

Lawof“Intellectual
thebeRussianprotected

intellectual

by

the

property”

registeraccessfromFederation: Legislation and Doctrine”.

<https://nazaccent.ru/content/36776-

In Patents and Licenses, 2018, N 8

prava-severnyh-narodov-na-ih87

ofkulturu-hotyat-zashitit-reestrom-Principles

intellektualnoj-sobstvennosti.html>

Communities

SavinaV.S.

(2020).

ofOrganizationofofsmall-populated“Publiclawindigenous communities of the North,prohibitionsin

Siberia and the Far East of the Russian

IP.

Federation

restrictions

andintellectual

property

law”.

In

Copyright and related rights, 2020, N 2

Federal Law of 30.04.1999 N 82-FZ (asWorld

Propertyamended on 13.07.2020) on Guarantees“Intellectualof the rights of the small-populatedIntellectual

Organisation(2005).

property

traditional

andculturalindigenous peoples of the RussianFederation

expressions/folklore. Booklet No.1.”
Geneva.

Switzerland,

accessfrom<https://www.wipo.int/edocs/pubdocs/en/tk/913/wipo_pub_913.pdf>‘‘Traditional cultural

Federal Assembly of the RussianFederation (2019). “Analysis of theexpressions

Russian and foreign legal framework,
international legal acts, as well as law(expressions ofenforcement practice in the field offolklore) means

protecting the rights of indigenous

productions consisting

peoples of the North, Siberia and theFar East of the Russian Federation”,

of characteristic

accesselements of thefrom<http://duma.gov.ru/media/files/ac56at

traditional artistic

9WNIN403jBAeKGTGGbqfeyNPfX.pd

heritage developed andf>
Novoselova L.A. (2017) "Intellectual

maintained by aProperty Law. Textbook", Moscow,

community or by

Russia: Statut
Federal Law of 18.12.2006 N 230-FZ

individuals reflecting"Civil Code of the Russian Federation.

the traditional artistic

Part Four"
Rospatent (2011). Decision of Rospatent

expectations of such a

dated 24.03.2011 on application N

community.’’

2006714356/50. Moscow, Russia
Federal Law of 20.07.2000 N 104-FZ (asamended on 27.06.2018) on the General88Balancing Indigenous Rights and

The issues of integrating different

International

Environmental

underlying interests, rights, and values

Concerns in Polar Bear Management:in relation to polar bear managementNew

issues have been noted for some time

DevelopmentsinCanadian

Modern Treaty Contexts

by scholars like Kamrul Hossain as
involving

DwightNewman,QC *&Gabrielle

Robitaille **amanifestationofinternational law fragmentation, in
which Indigenous rights dimensions of
the issue might well be in tension withI.

Introduction

treaty commitments related to polar
bears developed in the context of

A September 2021 decision of Canada’s

broader environmental concerns. 2 In

Federal Court of Appeal in Makivik

respect of the latter, Nigel Bankes, aCorporation v Canada (Attorney General)1scholar normally highly attentive toissuesIndigenous rights concerns, has written

involving in balancing Indigenous

about the 1973 Agreement on therights and international environmental

Conservation of Polar Bears (ACPB) 3 withconcerns in polar bear management.

scarcely a mention of Indigenous

These issues are challenging, and theharvesting, 4 manifesting some of thecaseongoing

disconnect of legal regimes on polardeveloping

bear management oriented to otherhighlights

broad,

signals

challenges

complex

both

and

the

the

expectations of achieving a different

perspectives

from

the

pertinentbalance than has been achieved in the

Indigenous perspectives bearing on

past.

this context. 5

BA, JD, BCL, MPhil, DPhil; Professor of Law & Canada Research Chair in Indigenous Rights inConstitutional and International Law, University of Saskatchewan.
** JD candidate; Research Assistant, University of Saskatchewan College of Law.
1 2021 FCA 184.
2 Kamrul Hossain, “Hunting by Indigenous Peoples of Charismatic Mega-Fauna: Does Human Right
Approach Challenge the Way Hunting by Indigenous Peoples is Regulated?” (2008) 10 International
Community Law Review 295
3 Agreement on the Conservation of Polar Bears, UNTS 2898, I-50540, Oslo, 15 November 1973, entered into
force 26 May 1976.
4 Nigel Bankes, “Polar Bears and International Law”, in Natalia Loukacheva (ed) Polar Law Textbook II(Copenhagen: Nordic Council of Ministers, 2013) 123.
5 For other treatments of note on this and associated questions, see also Martha Dowsley & George
Wenzel, “The Time of the Most Polar Bears’: A Co-Management Conflict in Nunavut” (2008) 61:2 Arctic
177; Leena Heinamaki, “Protecting the Rights of Indigenous Peoples – Promoting the Sustainability of89*

In light of these important Arctic

madeissues—with the direct pertinence ofEnvironment and Climate Changepolar bears but also with potentially

Canada. The Minister, in accordance

broader-reaching implications implicit

with the system set out in the Nunavik

in any better-developed means of

Inuitreconciling the interests and values at(NILCA), varied a decision made by the

stake in this context—any case law

Nunavik Marine Region Wildlife Board

development on the issue is of broader(the “Board”). The case reflects upon ainterest, and it is in this vein that we

careful balance between Indigenous

turn

Canadianrights and international environmental

development in the Makivik Corporation

concerns in polar bear management.

case. This case sees the application of

We focus on those aspects of themodern treaties negotiated between thedecision, while noting the significanceCanadian government and Indigenousof the case for Canadian administrative

peoples in Canada’s Arctic regions,law doctrine in ways examined byalongother authors. 8

to

the

with

recentassociatedduties

of

by

the

Land

Minister

ClaimsoftheAgreement

consultation with Indigenous peoples,in finding greater clarity than seems to

By way of background, the NILCA at

be possible at this point in time based

issue within the case is a modern treaty

solely on more general considerations.

negotiated between Canada and the6

Nunavik Inuit, represented in the caseII.

The Makivik Corporationby the Makivik Corporation, pertaining

Case

to the northern and offshore regions ofQuebec and Labrador. Article 5 of

Makivik Corporation v Canada (Attorney

NILCA establishes a co-management

General) is an appeal from a judicial

regime for wildlife that designates

review of an administrative decision

decision-making

7

authority

for

the

the Global Environment” (2009) 11 International Community Law Review 3; Greta Swanson et al,"Traditional Ecological Knowledge in Environmental Decision-making" (2019) 49:4 Environmental Law
Reporter News & Analysis 10309.
For a complexity on how different modern treaties in different parts of Canada’s Arctic interact, seealso Daniel W. Dylan, “The Duty to Consult on Wildlife Matters in Overlapping Northern Land Claims
Agreements” (2015-2016) 1 Lakehead Law Journal 45.
7 Makivik Corporation, supra note 1.
8 See especially Daniel W. Dylan, “Wildlife Management, Privative Clauses, Standards of Review, andInuit Qaujimajatuqangit: the Dimensions of Judicial Review in Nunavut” (2021), 34 Can J. Admin L &Pract. 265.
90
6

NILCA-established Board and Federal

significance to the Nunavik Inuit, andand Nunavik Ministers. The Board is anthus the decision-making process set

institution of public government andout in NILCA requires this significancehas various powers including setting

to be considered alongside the otheran annual total allowable take (TAT)

central objective of conservation. 11

and non-quota limitations (NQLs) on

Harvesting is set out in NILCA as toharvestingtheonly be restricted “to the extent

regime. The Board is set out in NILCA

necessary to effect a conservation

as the primary regulator and main

purpose.” 12

speciessubject

toinstrument for wildlife management in
the region.

The Board commissioned a study ofInuit traditional knowledge (ITK) that

The decisions made by the Board thatit referred to in its decision-making.

are related to matters within Federal

The Board decided upon a TAT of 28

jurisdiction are subject to a “two-way,bears, and stated that they had

conversation-like process” between the

concluded

Board and the Federal Minister. The

sustainable and consistent with theBoard firstly sends the Minister a

Inuit’s traditional practices.

9

that

this

would

be

private, initial decision, to which the
Ministerthenresponds

withanHowever, the results of the ITK study

acceptance or rejection. The Board iscontradicted some available scientificable to reconsider the decision in lightdata. Specifically, the ITK disagreedof the Minister’s reasons, and thenwith the scientific data that the relevant

create a final decision that may be madesubpopulation of polar bears had

public. The Minister may then accept,

deteriorating body conditions.

reject, or vary this final decision with
The Minister initially rejected the TAT,

reasons. 10

stating that 28 bears was unsustainable,
The Board establishes a TAT forand suggested that the Board should

various subpopulations of polar bears.

include a sex-selective harvest NQL.

Polar bear harvesting has cultural,

The Minister’s rejection did not containeconomic,

any mention of issues with the ITK

social,andnutritional

Makivik Corporation, supra note 1, para 27.
See ibid, para 28
11See ibid, para 16-18.
12Ibid, para 23
9

10

91

study or the NQLs that the Board

However,established.

Board’sultimately decided that the Minister’sreconsideration affirmed their TAT of

conduct in relation to the NQLs as well

28 bears and rejected the suggestion ofas to the ITK failed to uphold thean NQL of sex-selection, stating that ithonour of the Crown, and granted

was against Inuit values and thedeclaratory relief on that basis.

naturalThebalance

of

the

on

appeal,

the

Court

wildlife

populations. 13

Though there were numerous issues
between the parties, many of which

After

decision,

pertained specifically to Canadianconcerns related to the ITK study wereadministrative law, some of the issues

raised by Federal officials. The Boarddealt

was not given notice of these concerns

integration of Indigenous traditional

prior to its final decision. These issues

knowledge and practices alongsidemainly consisted of methodologicalscientific and conservation principles.

issues with the ITK study, includingThegaps of information as to how many

government’s

individuals were interviewed or the

Indigenous peoples in relation toscale of observations made. 14

international conservation objectives.

The Minister then varied the final

The NILCA establishes the expectation

decision, which reduced the TAT to 23

that traditional Inuit knowledge ofbears, added the requirement of a sex-

wildlife is to be integrated withselective harvest, and rejected some ofscientific knowledge and research. 15

the Board’s NQLs. This decision by the

The

Minister is what was then subject tonumerous issues with the lack of

judicial review.

adequate integration between the twotheBoard’s

final

with

case

Makivikthealsobalancingandconsiderstheobligations

toCorporation

raisedin the Minister’s decision, particularly
The application judge found that thesuggesting that the Minister was under

Minister’s conduct failed to uphold thean obligation to “find a way to put thehonour of the Crown as it pertained totwo systems together” regardless of

the NQLs, but declined granting relief.

their differing conclusions. 16

See ibid, para 40.
See ibid, para 49.
15Ibid, para 2.
16Ibid, para 90.
13
14

92

However, the fact that the two systems

source of knowledge is left unclear,

were in opposition posed a difficulty

considering that the Court simply

for how proper integration could takeconcluded that the Minister’s attempt

place. A cited article observes thatwas reasonable in light of those factual“there is currently no formula oruncertainties. 20

algorithm”

determining

how

to

properly integrate the two. 17 Further,

However,counsel for the Makivik Corporation

pertained

admitted that it is “difficult” togovernment’s conduct in relation to

integrate the two when they are in

Indigenous issues were ultimately

direct disagreement and that it largely

determinative

againsttheThegovernment’s

argument.

The

becomescircumstantial. 18

procedural
to

flaws

the

that

Canadianinconsistencies present led to the

Minister’s letter to the Board rejecting

Court’s conclusion that the decision by

the initial decision did not disclose any

theof the reservations concerning the ITK

Ministerandthedegreeofstudy, despite the Minister having a

integration was reasonable.

memorandum that had set out those
The difficulties in such an exercise are

saidclear in the Court’s suggestion that the

Although the Court stated NILCA does

Board had engaged in a similar process

not establish an obligation for extensive

as the Minister, despite arriving at

dialogue, the requirement set out indifferent conclusions. 19 The question of

NILCA for the Minister to provide

what

an

reasons for her decisions is to beadequate integration between the twointerpreted purposively within thespecificallyqualifies

asmethodologicalconcerns.

Ibid, para 96.
Ibid.
19See ibid, para 95.
20 There was another issue that the judge declined to consider. The application judge had extensively
considered the influence of international politics as well as CITES (the Convention on International
Trade in Endangered Species of Wild Flora and Fauna) upon the Minister’s decision. There had
previously been a threat of a trade ban, through the up-listing of the polar bear to Appendix I of CITES,
which would effectively halt international trade of the polar bear. The Minister is interpreted to havesignificantly considered this in her decision especially as it pertained to the economic implications of
this for the Inuit: paras 119 and 122. The Makivik Corporation argued that it was unreasonable for the
Minister to weigh the Inuit’s economic concerns over their cultural concerns. This raises the tensionthat may often exist between a State’s international obligations and their obligations to a rights-bearing
community. The Court declined to deal with this portion of the argument related to international
politics, instead determining that potential economic impacts are relevant under the scheme of NILCA:
para 125.
93
1718

context of NILCA and its objectives. 21

opportunity to address the concerns

The purpose behind that requirementwith the NQLs, going against thecannotintention of the NILCA decision-befulfilled“unlesstheminister’s written reasons disclose themaking process.

real reasons for the Minister’s decision
to reject.” 22 This conclusion is aided by

III.

Broader Implications

how providing sufficient reasons is
significant in reconciliation within

The Court thus ultimately showed

Canadian jurisprudence. The Courtsome deference to the Ministerial

makes reference to the past Supremedecision

Court of Canada decision in Clyde River

Indigenous knowledge and Western(Hamlet) v Petroleum Geo-Services Inc. inscientific knowledge in relation to thestating that not only do written reasonsmanagement of polar bears. There is“foster reconciliation” but are a “sign oflittle clear guidance to be discerned on

respect [which] displays the requisite

this issue from this decision, and there

comity and courtesy.” 23

are ongoing challenges in considering

on

how

to

integrate

such decisions and the associatedThus, even though the Minister was notbalancing of Indigenous rights andrequired through the NILCA to be intreatyconstant dialogue, the Minister failed tointernational legal regimes that haveadequately implement the NILCA’s

been less attentive to Indigenous rights.

requirements and was determined to

At the same time, the Court was able tohave breached the honour of theoffer a measure of protection by

Crown. On a similar basis, the Court

drawing upon Canada’s legal doctrines

also determines that the Minister didon

not reasonably act in accordance withpeoples as an aspect of governmental

the honour of the Crown in relation to

conduct associated with the honour of

the NQLs. The Minister’s failure to

the Crown. 24 In doing so, the Court also

communicate denied the Board an

drew upon specific modern treaty

commitments

consultation

withwithinIndigenous

See ibid, para 109
Ibid.
23Ibid, para 111. For the past decision, see Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC
40, [2017] 1 S.C.R. 1069. For a past discussion of it in this journal, see Dwight Newman, “Litigation
Concerning Consultation with Indigenous Communities in Nunavut, Canada” (2016) 4 Current
Developments in Arctic Law 17.
24 For general analyses of Canada’s duty to consult, see Dwight Newman, Revisiting the Duty to Consult
Aboriginal Peoples (Saskatoon: Purich Publishing, 2014) and Dwight Newman, “The Section 35 Duty to
94
21
22

arrangements between the Canadianapproaches,

if

more

prescriptive

government and Arctic Indigenous

approaches

canappropriately

peoples undergirding the conclusions

identified.

If well-reasoned, thoseon consultation and honour of theapproaches could guide governments

Crown. These realities of how the casemore clearly in this challenging area of

played out establish certain broader

policy-making and shape how courts

implications from the case.

respond in judicial review contexts

bewhere they assess the reasonableness of
Notably, without one definitive means

government action.

established of reconciling Indigenous
knowledge

andmeantime,establishedagreements

betweenIndigenous

judicial review of decisions on how

communities

andthey have done so will operate within agovernments may have central roles tosphere of some judicial deference. In

play. The modern treaty arrangements

the absence of courts being convinced

in Canada’s Arctic regions are aas to one particular way being mostsignificant accomplishment in having

definitively appropriate, there are only

been

limited ways in which they might

negotiations. One of the most visible

review such decisions. As a result, thesigns of their significance is thedecision likely implies some continued

existenceroom for governments to operate in

territory on a map of Canada, but theirthat sphere.

effects reach far beyond that in lessknowledge,

Westernscientificgovernments

facingIntheattained

non-Indigenous

through

today

of

the

successful

Nunavut

immediately visible ways that involved
That implication does not take away

the recognition of many rights infrom the significance of efforts to work

variousthrough

Canada’s Arctic.

They form an

resolution on such issues. Indeed, there

essential

what

is important room for the scholarly

previously called the “contextualized

community to build upon what work

decolonization” of the North. 25 They

has been done and to carry on to theare what provided the court a means ofdevelopment ofreview that supported declaratory

appropriate

more

means

of

prescriptive

Indigenous
part

of

peoples
we

of
have

Consult”, in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers (eds) The Oxford Handbook of theCanadian Constitution (Oxford: Oxford University Press, 2017).
25 Dwight Newman, “International Indigenous Rights Law and the Contexualized Decolonization of
the Arctic”, in Ken S. Coates & Carin Holroyd (eds) The Palgrave Handbook of Arctic Law and Politics(Chaim, Switzerland: Palgrave Macmillan, 2020) 427.
95

relief in the case at hand.

ModernAs in so many other contexts, the Arctic

treaties in Canada establish rights inregion is a complex place that evokes

tangible ways agreed by the parties andhighly complex governance challenges

are thus particularly appropriate toout of proportion to the size of theapply in the context of contested issues

population of the region. The Arctic

where they offer a resolution on thosestatesissues.

challenging ongoing work on these

need

to

be

engagedingovernance challenges in light of the
One resulting complexity is that in theunique characteristics of the Arctic andcontext of the somewhat fragmented

the challenging issues raised. The latest

form of international law on suchcase from Canada’s courts on polarissues, on which specific internationalbear management is partly yet anothertreaty regimes and Indigenous rights

reminder of these realities. While it has

may not have been brought into any

some specific implications on thedefinitively reconciled relationship, a

respective

roles

of

generalizedstate like Canada with entrenchedapproaches

and

more

specificallycommitments on Indigenous rights

agreed approaches with Indigenous

may be expected to take a different

peoples of the Arctic, it also repeats

approach to its international treaty

these broader lessons of the ongoing

The ACPB, with its

governance challenges to be faced. As

commitments.
determinations

on

polar

bear

scholars engaged with Arctic law ormanagement, is particularly notable inpolar law, our efforts are ever more

the ways it may be affected by domestic

needed and we must continue to makecommitments on Indigenous rights,

the best contributions we can to theespecially given the role of polar bears

challenging issues of this region thatin the life of Inuit communities locatedmatters both in and of itself and in its

across Canada’s Arctic region. Thoserelationship to the world as a whole.

interested in the ACPB need to engage‘‘As scholars engaged with Arctic law

in a new wave of thinking on its

or polar law our efforts are ever moreintersections with Indigenous rights,
both

from

pragmatic

needed and we must continue to makepredictive

the best contributions we can to theperspectives and for the sake of any
contemplationofmodifications

challenging issues of this region….’’

tofuture normative guidance.

96Exploring gender equality among

An additional aim has been to promote

caregivers: a sub-study based on the

new knowledge that contributes to theNordic network 1

enhancement of gender equality in theeldercare sector.

Lead author: Shahnaj Begum
Care has been discussed in an extensive
Naskali,range of feminist, social and political

Minna Zechner, Marjo Outila, Eva-Maria

research (Pritlove et al., 2019; Zechner

Svensson,R.

2010) and it has been identified as a

Arnórsdóttir

multifaceted and complex concept that

Other

Contributors:
Lena

Päivi

Wennberg,

Harbison, Arnrún

Halla

Joan

and Trine Kvitberg

encompasses the emotional, economic,
personal and social aspects of care.

1. Introduction

Researchers

have

revealed

that“despite its universality, the worlds ofThis study is part of an ongoing project,caring and the ways of providing it“Understanding

inequality

vary depending on time and culture”

among caregivers in the ageing sector(Anttonen & Zechner, 2011, p.15). Carein the Nordic countries” (short name:includes both informal (family-based)

NIKK-AGE-Caregivers),

andgenderwhich

isformal(services-based)

care

funded by the Nordic Council of(Heintze, 2013). Informal care is given

Ministers’ Nordic Gender Equality

by family and or other close persons,

Fund (NIKK). The purpose of thissuch as neighbours and friends, andproject has been to develop a broader

formal care is attainable from the careresearch network and at the same time

services, which may be public or

to conduct a small study on genderprivate (Zechner, 2010). The Nordic

equality amongst caregivers withincountries share comparable welfare

Finland, Sweden, Norway and Iceland.

policies as well as similar socio-

Acknowledgement: This work is primarily funded by the Nordic Council of Ministers’ Nordic Gender
Equality Fund. The project was partially supported by the North Calotte Council (Pohjoiskalotin
neuvoston).

1

Contributors: Post-doctoral Researcher Dr. Shahnaj Begum, University of Lapland & Affiliated Postdoctoral researcher at Centre of Excellence in Research on Ageing and Care (CoEAgeCare), University
of Helsinki; Professor Päivi Naskali, University of Lapland; Associate Professor (tenure track) Minna
Zechner, University of Lapland; University Lecturer Marjo Outila, University of Lapland; Professor
Eva-Maria Svensson, University of Gothenburg; Lena Wennberg, Doctor of Laws & Former Associate
Professor, Umeå University; Adjunct Professor Joan Harbison, University of Dalhousie; AdjunctArnrún Halla Arnórsdóttir, University of Akureyri; Dr. Trine Kvitberg, VID, DNK.
97

economic,

culturalandrealising, has been to form a network ofpolitical

features. The primary responsibility forscholars

in

order

providing care and assistance for thecooperation amongst its members, whodisabled and the ageing lies with thehave met not only virtually but in two

municipalities (Heintze, 2013, p.20).

face-to-face workshops during theAn ageing population is one of the

project

major concerns in the Nordic region,

conducted brainstorming exercises on

and the demand for caregivers isthe following issues and questions:increasing in all of the countries. At theComparison the caring politics, gendersame time, each country pursues asegregation in the field, and thepolicy of gender equality at all levels in

position of immigrant employees in

its policies.

different Nordic countries. In what way

period.

toThestrengthen

workshops

are women as caregivers in the elderly
1.1 The aim and objectives of theservice sector multiply vulnerable? Do

NIKK-AGE-Caregivers project andthey suffer from inequality and social

Nordic added value

injustices from diverse perspectives?
How do the dynamics in the care sector

The project aims to bring about ancreate a complex situation? How do theenvironment in which researchers inpolicies prevailing in the labour market

the four countries establish networks,interact in the Nordic welfare model

cooperation and collaboration. Sharing

when compared to other job sectors?

experiences and convening forums for
dialogues on the substantive issues

This study is mainly based on abring added value in knowledge

synthesis of existing literatures, smallbuilding, which will help to identify

data

concrete challenges and develop a

discussions, and suggestions by the

research platform and research agenda.

project participants made in workshops

These efforts also serve to broaden theduring the period from 2019 to 2021.

network and highlight the needs

This paper proceeds as follows. Section

related to the proposed theme: care

2 discusses the definition of genderwork,

equality

caregiving

andgender

sets

from

and

interviews

someexamplesandof(in)equality. In this light, the project(in)equality practices in the Nordic

will prove to be highly significant,countries. Section 3 goes on to describe

creating

Nordicthe context of the study and Section 4

knowledge. The main purpose of thethe data collection processes. Section 5

project, which it has succeeded in

examines

added

value

for

98

caregiving

andgenderequality based on the literature reviews

rights and opportunities of individuals

and interview data. Section 6 concludes

or groups are not equal (Svensson,

the study and puts forward salient

2021; Alkire et al., 2015). The notion ispolicy recommendations.

linked to fairness, and what is fairdepends on maximisation of happiness

2. Conceptualising Gender Equality

or wellbeing in the experience of thewith Nordic perceptions and practices

majority of people.

There is no absolute definition ofPrevious research has asserted that togender equality, given that equality is acreate a fair society and to diminishchanging phenomenon influenced bygendered hierarchies it is essential totheestablishtransformationofsocietalgenderequality,whichfunctions. It is argued that gender

involves considerations of samenessequality is a matter of removing unfair

and difference (Elwér et al., 2012). Fromobstacles and ensuring that everyone,

the sameness standpoint, men andregardless of gender, has the same

women are fundamentally the same

opportunities (Elomäki et al., 2021;

and fairness is achieved through equal

Bettio and Sansonetti, 2015, p. 11). In

opportunities, which eliminate sociallythe legal context, the rule of law is theconstructed gender differences (Verloo

source of gender equality (Worldand Lombardo, 2007; MacKinnon,1997;

Development Report, 2012). Gender

Moller, 1989). From the difference

equality is context dependent evenstandpoint, women and men arethoughlegal

basically different and fairness isprescriptions of equality before the law.

created by valuing (Elwér et al., 2012;

Hence, for meaningful gender equality,

Verlooone needs to invoke the concept ofembracing the differences or taking

gender justice.

them into account. Therefore, equality

one

finds

uniform&

Lombardo,

2007)

and

does not mean that everything is the
Gender equality entails not an only

same for everybody, but rather that

equal distribution of men and women

everyonein all domains of society, but also refers

gender, ethnicity, sexual orientation

to equal rights, responsibilities anddisability and age) has similar chances

opportunities for women and men andto participate. Among other things,

girls and boys (UN Women). In social

there should be no structural barriers

justice theories, it has been stated thathindering access to or participation in

inequality occurs when the status,
99(despitedifferencesinthe care sector; it is not equality to

in

the

Nordicwelfaresociety,

assume that care is a task for women.

threatening its ideals regarding genderequality (Eräranta and Kantola, 2016;

inDifferences

genderroles

Hirsto et al., 2014).

andunequal treatment in society create
discrimination(Svensson,
Svenssonagainstwomen

Nordic feminist legal scholars have

Begum,

2019;asserted that gender equality andGunnarsson,

2012;

human

2021;
and

rightslaw

andpolicies

Parvikko, 1992, p.93). This is very

applying to women are blind spots invisible in the care sector, where thepolitics (Gunnarsson and Svensson,eldercareis2017). Legislation is the main means tocharacterised by a high proportion of

pursue women’s rights (Ylöstalo, 2012,

women and low pay. Social justicepp. 33–37). The public sphere, forcontributes to equality with a particular

example, sectors such as politics andemphasis on fairness and change

working life, is seen as the central(Kalsem and Williams, 2010).

forum for this work but, as Hanna

sector,for

example,Ylöstalo has noted, structural obstacles
Historically, the Nordic countries havein society prevent women benefitting

been more progressive in addressing

from the possibilities available to themgenderother(Ylöstalo, 2012, p. 33). Nordic legal

European countries (Kantola et al.,feminist scholars also have emphasised

2020; WEF, 2021). Efforts to addressthat the state should take every

gender issues in the Nordic region

initiative(Finland,

andoutcome by establishing an equal

Iceland) began more or less in the same

distribution of power and influence,

period. The goals of gender equality ineconomic equality, equal responsibility

the

as

and the sharing of unpaid and domestic

nationallycare work (Wennberg, 2008, pp. 339-

encapsulated journey, a linear process343; Svensson and Gunnarsson, 2012).

ofYlöstalo (2012, pp. 44–50) also refers toequality

Sweden,countries

follows:

than

“a

the

Norwaywere

described

kind

of

evolvement

where

everyonetoachieveequalityoftogether continuously strives towards

thethe goal of equality between women

asserting that it is not enough toand men vis-à-vis power and resources,

concentrate on gender when analysing

participation and influence” (Lane andgender identities and power relations

Jordansson, 2020). It has been also

but rather that other differences must

discussed that changes are taking place

be taken into account as well.
100

conceptofdiverseequality,

Gendersegregation

allowsFeminist experts (Naskali, P., andforinequality and the Nordic welfare

Keskitalo-Foley,society has a high level of genderintersectionality

segregation2020).

education and revealed that ethnicity

Segregation separates women's andand race were not discussed in their

men's work and teaches women anddata in adult education. Segregation ismen different types of skills, which instronger in education and working life

turn divides power relations so thatin Finland than it is on average inmen are at the peak of economic power,

Europe (Tanhua, 2018; Bettio andwhereas women have the primary

Vershchagina, 2009). SEGLI's research

responsibility for caregiving (Hirdman,provides new insights into the causes of1988). The possession of power allows

occupational segregation using an

one to formulate, to include andintersectional perspective (SEGLI is a

exclude within the power structure.

new type of equality project thatPower also relates to representing andaddresses gender segregation based on

giving a voice to, or to subordinating

factors such as ethnicity or social class).

and silencing (Pylkkänen, 2009, p.14).

Scholar Inkeri Tanhua (2018), who

Pylkkänen highlights the following

workedfactors for gender equality: politicalmentioned that ethnic segregation isrights, education and wage labour

one issue where gender influences(Pylkkänen, 2009, p. 11). Hence, gender

careerequality is closely linked to a given

important to see how educational andcountry’sandsocial practices influence students' andpractices (Sinevaara-Niskanen, 2015;

the young generation’s perceptions ofMagnusson, Rönnblom and Silius,

their future and to probe the causes of2008). Over the past decade, labourcaremarket organisations, employers andespecially in eldercare sector.

(Tanhua,politics,

policies

in

2017)
in

the

choices.

FinnishSEGLIHence,

work-related

studiedadult

project,

it is

also

segregation,

trade unions have started to focus on
individual women’s opportunities to

The Finnish labour market is strongly

pursue careers achieve a work–life

segregated according to gender (THL,balance (Lane and Jordansson, 2020).

Gender Equality). Women work morein the public sector, and men in the

In the Nordic countries, the perception

private sector. The most sectors withof gender equality is largely uniform,

the highest proportion of women in

and alternative approaches adhered to2019 were health and social services

among ethnic groups are ignored.

(women 86%); education (women 68%);101

and accommodation and restaurantvery low compared to those in otheroperations (women 68%). In 2018, only

sectors in the job market (Olakivi, 2018;

9.2 per cent of employed persons inElwér et al., 2012) and working

Finland worked in equal occupations,environments tend to be unattractivethat is, occupations with at least 40%(Aalto et al., 2013). Significantly, both

men

and

women

(THL,

Genderthe eldercare professions and family

Statistics

Finland,2018).

care are female-dominated (Karsio etPrevious research has revealed thatal., 2020). Often family caregivers are

immigration has alleviated genderwomen who hold a job and also spend

segregation in some female-dominateda great deal of time taking care of theirareas, such as in community care, but

children, older parents and relatives.

has increased segregation in some

As a result, care management in the

male-dominated areas. At the same

Nordic states has sparked some debate

time, ethnic segregation has begun toand criticism (Esping-Andersen, 1990).

emerge (Kazi et al., 2019). Many care

It has been argued that the way inresponsibilities are unpaid work, evenwhich care services in the Nordic statesin the Nordic countries (Tanhua, 2018are& 2020). Here gender equality focuses

imbalancedonethnicity,societal power structures in both family

discussing issues in an intersectional

and working life (Anttonen and Sipilä,

perspective.

1996;

Equality;age,genderandorganisedisgenderedbecauseof

Pfau-Effinger,

overwhelming

prevailing

2005).

majority

and

of

The
care

3. Context of the Study (Nordic

providers in these countries are also

welfare states)

women, and a significant number havean immigrant background (Armstrong,

Due to low birth rates and improved

2020, p.1).

life expectancy, the Nordic countries
now have a rapidly ageing population.

Budget cuts and reductions in welfare

The

services and social benefits, as well as

demandforcaregivers

andinformal help is increasing apace as

public-sector

well (Stone, 2016, p.99; Ladegaard,(Kantola & Verloo, 2018; Villa & Smith,2012). Despite this increasing demand,2014), have seriously affected women’sthe eldercare sector is not being given

prospects of entering the labour market

the attention it requires. Notable(Karamessini & Rubery, 2014). These

shortcomings are that wages in the carechangessectors (both private and public) are

familialisation of care and hinder
102

employment

“may

lead

policiestothewomen’s access to the labour market”

one will question your academic(Sihto, 2019, p.13). The cuts in public

dreams. It's different if you wear aservice funding and the restricting ofscarf” (my translation).

eligibility criteria for eldercare alsomean that women are further burdened

The

Nordicby family/informal care or that they

considerably across different types ofneed to restrict their employment forcare provision, with eldercare being

family care reasons (Karsio et al., 2020).

one example (Jakobsson et al., 2013;

Tasks in the educational, economic andRauch, 2007). Caregiving to older

certain other occupational sectors arepeople has less of an effect onstrongly segregated by gender (SEGLI,

employment in the Nordic welfare2018), which leads to several forms ofstates than elsewhere in Europe (Bolin

inequality in the Nordic countries.

et al., 2008; Kotsadam, 2011; 2012).

countries

differFinland offers a form of support for
The boundaries between male andinformal

female work vary historically as well as

allowance (ICA). This provides awithlocation,

combination of cash and time off for

racialisation, immigration status andcarers and replacement services to theage, among other social locations

person being cared for during the(Armstrong, et al., 2008). For example,

carer’s time off (Morgan and Zechner,a recently published article in Finland2021). It is important to compare(Hautamäki, 2018) indicates explicit

informal care for older and people withsegregation in the choosing of job paths

disabilities because care services for

for

of

these two groups tend to differ even in

immigrants. The article quoted athe same country (Jeppsson et al., 2009).

MuslimPazilaiti

People with disabilities prefer not to

Simayijiang. She wanted to study

receive care; they prefer to receive help

medicine at the university and wasand assistance instead since they see

qualified to apply, but her student

care as patronising (Zechner, 2010).

counsellor (opinto-ohjaaja) encouraged

Studies have indicated a decline in

her to apply to a vocational school andintergenerational

to pursue a career as a nurse or

mostly to the expansion of public

midwife.

a

services. Reductions in these services

discriminatory tone in the attitude andare sometimes blamed for observed

went on to comment “if you have an

increases in support by adults foraverage grade of nine and blue eyes, noageingclass,

thephysicalsecondgeneration

immigrant

The

girl

girl,

sensed103

care,parents

theinformal

care,

care

attributed(Daatland,

2001;

Sundström et al., 2002; Ulmanen and

The Finnish Constitution grants accessSzebehely, 2015), which also increases

to healthcare and social services as

gender inequality.

social rights to all citizens who needed
such access. Eligibility for services is

3.1

A general overview of thebased on needs, no means-testing is ineldercareanduse (Morgan and Zechner, 2021).

immigrant- or migrant-related

Finnish eldercare policy is a part of thepolicy and law.

national

systemwelfarepolicy(Valokivi,2019). The Social Welfare Act (1301/2014)
There have been many changes in theremains the major framework for social

governanceservice provision, including eldercare

andorganisationofpublicly funded eldercare services inservices.

the Nordic countries (Meklin et al.,Welfare Act, local authorities are

2009; Valokivi, 2019; Armstrong andobliged to organise social services,

Armstrong, 2020). Eldercare is mainly

provide social assistance and pay socialdelivered as a combination of formal

allowances to their residents. From theand informal help in Finland, Sweden,

beginning of 2023 this responsibility

Norway and Iceland. There is little

will be shifted to 21 newly createdknowledge

wellbeing

about

the

distribution

Accordingservicestothecounties

Social(andbetween provider types in different

Helsinki, which is an area), with these

serviceandmostly coinciding with the present

Szebehely, 2013, p. 87). Following is a

hospital districts (Sote-uudistus, 2021).

synopsis of the different pieces of

The municipalities and counties havelegislation and policies with a bearing

the responsibility to organise services,on the eldercare system. It includes thebut actual provision of services isframework legislation, the share ofcarried out by public actors throughresidentialcare,outsourcing as well as by for-profit andintegration of immigrant and related

non-profit actors. The more specificpolicies, such as recruitment systems,

major law on the care of older adults is

as well as the development trends in

the Act on Supporting the Functional

Finland, Sweden, Norway and Iceland

Capacity of the Older Population and on

in recent decades.

Social and Health Services for Oldercategories

and(Meagherhome-based

Persons (980/2012), which contains
andmore specific guidelines on how topolicies in relation to immigrantsupport older populations. Especiallyworkers in Finland

important is section 14, which states

Eldercareserviceprovision

104

HealthCare

Act

that long-term institutional care is onlyThe

provided where there are medical(Terveydenhuoltolaki)grounds showing that it is necessary forgoverns healthcare provision as well as

the safety of the client or the patient.

preventive

This portrays the primacy of ageing inimportant given the health issues thatplace in Finnish care policies.

older adults often face. In practice,eldercaremeasures,in

Finland1326/2010
which

are

consistsofAgeing in place is also supported by the

informal care and services that are

informal care allowance, governed bymostly organised publicly and include

the Act on Informal Care Allowance (Lakihome care, service housing and careomaishoidon tuesta, 937/2005). The

homes. Assistive services and devices

allowance is used to support informal

are also available, but services such ascare for clients of all ages, but it iscleaning

mostly used for eldercare; often carers

bought directly from the market.

are spouses, rather many of them men

Despite the rather wide array of(Linnosmaa et al., 2014). The allowance

services on offer, past decades haveoffers the carer a monetary benefit,

seen increasing reports on unmet caredays off and insurance to coverneeds in Finland (Kröger et al., 2019).

occupational hazards and occupational

There are more reports of older adults

illnesses, as well as coaching, training

who have to choose whether to buy

and health and wellbeing check-ups

medication or food (Verbist et al., 2012).

andshopping

are

often

(Morgan and Zechner, 2021). In 2020
there were 55,797 informal caregivers

Finland, like many other countries, is

who received the allowance, out of

increasingly relying on foreign-born

whom

for

workers in its social and healthcare

somebody aged 65 or older (Sotkanet,

sectors (Näre, 2013). Migrant care2021). Since 1994 the share of women

workers find it difficult to get theiramong

qualifications

38,494

were

informalcarerscaringhas

been

officiallyrecognised.

declining, but it is still 70 % (Linnosmaa

This means that many registered nurses

2014, p. 17; Noro, 2018). The gender gap

end up working as assistant nurses at

was smaller among older age groups.

lower pay (Vaittinen, 2017). According

The financial assistance minimum in

to Olakivi (2018, p. 14) “the main2021 was €413.45/month and thewinners are the employers, who,

minimum

instead of improving the quality of careintransition

to

“more

demanding” care was €826.90 /monthwork(Kuntaliitto, 2021; Noro, 2018).

professionals, can recruit migrants as a105

toattractindigenous

compliant workforce that is willing—or

athlete, coach or trainer, or sports judge

forced—to work in poor conditions”

or referee; working holiday; internship;(Näre, 2013; Wrede, 2010). A recent

internal transfer within a company;

study reports that in Helsinki theresearcher; volunteer; and seasonal

percentage of migrants working as

worker in agriculture or tourism. Careregistered or practical nurses increased

work is not specifically mentioned.

from 4% to 11% in the period from 2004

Despite this there are numerous efforts

to 2013 (Olakivi, 2018, p. 14; Statistics

especially by private companies toFinland, 2016) yet the proportion ofrecruit migrants care workers for caremigrants working as head or ward

andnurses remained almost non-existent,

Koivuniemi 2020; Keränen, 2020). In

that is, below 1% (Statistics Finland,

2014, the employment rate among2016). According to scholars andpersons 20 to 64 years old was 63.7 %migrant care workers, such recruitment

for immigrants and 73.7 % for people

tendencies misrecognise the true skills,

with a Finnish background (THL,

competencies, and interests of migrant

Työelämä).

cleaning

work(Näre,

2013;

workers (Näre, 2013; Adhikari andMelia 2013). These trends in caregiving

Eldercaresuggest inequalities with regard topolicies in relation to immigrantmigrant workers.

workers in Sweden

The authority in charge of residence

The views on eldercare have shifted

permits in Finland is the Finnish

throughout history, changing from a

Immigration Service (Migri). Its web

view of it as a private family matter topage explains “when you are applying

one considering it a societal and public

for a residence permit in order to work

concern. In Sweden publicly financed

in Finland, you should notice that there

and high-quality eldercare services arearepermitavailable to all citizens, that is, all social

applications for certain types of work”

groups, according to their needs rather(Migri). The pre-determined categories

than their ability to pay, (Sipilä 1997;

of work when applying for a residence

Vabø and Szebehely, 2013).

specific

residenceserviceprovisionandpermit are restaurant worker, cleaner
or childminder; specialist; EU Blue

Eldercare in Sweden is regulated in theCard; top or middle management in a

Socialcompany; visiting teacher, lecturer,

Section/Chapter 5). The social services

instructor(governed by the Social Service Boardorconsultant;

au

pair;
106

Services

Act

(SFS

2001:453,

in each municipality) are responsible

In 2009 the Act on System of Choice in thefor promoting housing of good quality

public sector (SFS 2008:962) came into

for the elderly and assisting withforce in the healthcare and social

domestic help and service if needed.

welfare services. This new approach inSince the 1980s, the Swedish welfare

Swedish social policy has also foundstate project has gradually entered a

expression in the introduction of choiceperiod of budget cuts. Fewer people getin primary care, deregulation of theservices and care, now often granted inpharmacy market, freedom of choice ina more limited form, and the definitionchildcare, and tax deductions forof needs has changed (Numhauser,household services. Privatisation in2017).

eldercare means outsourcing, withdifferent care companies competing forToday, women are well integrated incontracts;

the labour market—84.5 % in 2017—but

remains a public matter, financed

still the labour market is characterised

through tax revenues (Andersson,by gendered disparities and gender2013, 170-89). The majority of small

inequalities. Unpaid care work in themunicipalities have chosen not to

private sphere of the family is still to a

introduce the free-choice system, whilelarge

concern

for the most part the larger ones have

(Statistic Sweden (SCB), 2018). The

adopted it. In 2012 the National Board

publicitselfof Health and Welfare (Socialstyrelsen)

challenged by demographic changes intook the view that it was too early to

combination with large numbers ofdraw any conclusions on whether thisworkers reaching retirement age. The

marketisation has increased the quality

government

byin elder services and care. However, forappointing a national coordinator for

persons with “reduced autonomy” thethe sustainable supply of skills inrisk of becoming disadvantaged by the

publicly financed care (Dir. 2019:77).

free-choice

The mission is to initiate and support

disparities among different groupschange that could promote a goodseems tangible (Socialstyrelsen, 2012).

extentcareawomen’ssectorhas

finds

responded

care

provision

system

and

as

such

increased

work environment by adopting new
welfaretechnologies,

therebyNational values for elder services andfacilitating the work of the staff andcare, such as living in dignity andprovidingforhaving a feeling of wellbeing, were

patients and users of welfare services

adopted in the Social Services Act inand care.

2010, echoing internationally agreed

increased

quality107

wellbeing objectives (Svensson et al.,of the staff. (Chapter 3, para 3). The

2021). These values, however, do notsame applies to private domestic

form the legal basis for assessing

services and private residential care inwhether a person is eligible for services

special housing, with providers andAct

performers needing an authorisation to(2008:567) prohibits discrimination inoffer services and care from the Healththe social services sectors and privateand Social Care Inspectorate (Chapter

performers of services and care are7, para 1-2). The National Board of Healthcovered by the prohibition. Municipal

and Welfare (Socialstyrelsen) has issued

autonomy,recommendations

and

care.

The

Discrimination

varying

economic

on

the

basic

conditions and the political priorities

knowledge that ought to be required

established in each municipality entail

for work in the elder services and carea risk of discriminatory practices andsectorinequality in outcomes.

example, sufficient knowledge of the(SOSFS

2011:12

(S)).

For

Swedish language is required. The
Elder services and care provided in the

Board (Socialstyrelsen, 2017) also issues

private sphere by family and closenational guidelines for care in the casepersons have increased during the lastof dementia. The 2010 Introduction

decades. Even though there is no legal

Activities

support for denying help and services

2010:197) sought to achieve fasterwith reference to the availability of

establishment on the labour market forfamily members and/or close persons,newly arrived immigrants and theirit has been shown that domestic help

accompanying relatives. The mainand services (hemtjänst) have been

objective was to create work incentives

provided to a lesser extent for thoseby making compensation conditional

cohabiting with a partner. Domesticon active participation in establishment

help is largely provided by close

measures. Yet another legal reform waspersons, mostly women, and thisintroduced

practicemore

establishment of immigrants on the

non-Nordic

labour market and in social life (Prop.

immigrants (Ulmanen 2016, SCB 2018).

2016/17:175). The legal amendments

widespreadissignificantly
amongissued

Act

in

in

(Etableringslagen,2018

Regulation

for

the

(2017:820)

According to the Social Services Act

harmonised the regulations for this(2001:453), social services have to be ofgroup with rules valid for othera

Appropriate

jobseekers. Collective agreements on

education and experience are required

the labour market set the level forgoodstandard.

108

wages and set priorities. The salaries

In Norway, local care service provisionareis influenced by the central government

then

individually

decidedinnegotiations between the parties at thethroughlocal level. The procedure is the same

judicial

for those employed in the private andsubstantial

publicEldercaresectors.

Salarylevelsforlegislation,
decisions,monitoring

block
is

regulations,

grantlargelyaandfunding.
municipal

caregiving are low-paid, but quite

responsibility and health services try toequal for men and women (See Facts

offer the lowest level of effective care.

and Figures). Facts about the salary

Municipalities regulate the category oflevels of immigrants are not available.

services and the volume of caredepending on clients’ needs. Home

Household services are to a large extent

healthcare services are defined as theprovided by immigrants and arelowest level of care in Norway (Holm et

identifiedal., 2017). The substantial variety inasprecarious

work

in

Sweden. One of the objectives for“theintroducing

forgeographic and economic character has

household services was to make thisresulted in diverse mixes of traditional

kind of work “white” and thereby

residential care facilities, home-based

prevent

care and intermediate solutions” (Vabøataxdeduction

exploitation.

Thesocialmunicipalities’

demographic,

democratic Swedish welfare state had

andBurau,

2011,

as one of its objectives to liberate

Hermansen,

2011).

individual persons from family andservices are regulated mainly by themarket dependency, thereby changing

Municipal Health and Care Service Act

class and gender-based structures.

(Act 2011-06-24-30), which merged, andFamily responsibilities in the law for

replaced, the Municipal Health Act andprovidingdisappeared.

the Social Services Act (Act 1991-12-13-

Autonomy in relation to the labour81). In the year 2011, not more than 60%

market as well as in relation to theof total expenses in the care sector werefamily (defamilialisation) was among

spent on older people, but in 1998, 74%

the important objectives, not least inof spending went towards services forsocial law, and the ambition here wasolder people (Kjelvik, 2011).

eldercare

GautunOlderandpeople’s

to include women in the labour market.
The governmental reform “Leve hele
Eldercareserviceprovision

livet”

and(“Living

all

your

life”)

policies in relation to immigrant(St.meld.nr 15 (2017-2018) gives theworkers in Norway

municipalities in Norway a greater
109responsibility for eldercare. The reform

attention, poor financial resources andis a new and different approach tohaving few permanent employees in

implementing measures for the futurefull-time positions. A possible solution

elderly healthcare policy. An importantto this problem is that the state would

factor is the anchoring of the reform inearmark funding for elderly care.

local political consideration of the
proposedsolutionsin

In general, there are equal salaries for"Living all your life" and in creating an

men and women in the elderly careage-friendly Norway. In order to assist

sector. This also applies to immigrants.

the municipalities in carrying out the

Salary compensation is dependent on

reform,education, competence and seniority.

theguidance:

presented

government

provides2020,

This also applies to immigrants. In

Omsorgsplan 2020 and Demensplan

Norway the elderly care sector is an

2020. The “Leve hele livet” reform

arena for integration for immigrants

could therefore facilitate municipalities(Eideand others in learning from each otherimmigration, including people withandrefugee experiences, has highlighted ain

Kompetanseløftet

implementing

good

and

innovative solutions in the services.

et

al.,

2017).

Increased

need for more knowledge on effective
integration

measures.

Within

The willingness to prioritise financial

integration policies, the utilisation of

resources for the elderly sector is very

ordinarydifferent in the municipalities. In small

increased attention in recent years.

municipalities with lower populations

However, measures that utilise theand many elderly people, there is aordinary workplace as an arena for

greater willingness to prioritise elderly

training and qualification are manifold,care. Small municipalities often havefrom variants of work-first approaches,

solutionswholein which the aim is to get refugees andcommunity in various elderly careimmigrants into work-related activities

activities.

quickly, to longer programmes thatthat

involvethecombineworkplacesjob

traininghasandreceived

formalSome urban municipalities in Norway

education, with the aim of building

with larger populations often arrange

formal competence and human capital.

international

sporting

Drawing on a comparative case study

events that are given high economicof seven local integration programmes,

priority and attention. As a result, theresearchers (Eide et al., 2017) examinedelderly sector suffers from a lack of

how the health and social care sector iscultureand110

used as a component in qualificationrights, such as dignity and autonomy.

andAccordingtrainingofrefugeesandMunicipalities’toSocialimmigrants. The study builds on

Services Act, No. 40/1991, social careinterviews with employees of theservices are to be provided to older

institutions

thepeople living in normal houses; these

programmes. The researchers focusedservices include social home help, day-on how local measures may strengthencare services at some centre and thethe human capital and attachment tolike. Social home help includes helpthewith domestic tasks (IADL), meals on

participating

employment

market

in

of

the

participants.

wheels and similar services. Home
healthcare offers personal assistanceandwith daily living (PADL) and homecare

policies in relation to immigrant

provides nursing (Sigurveig et al., 2016,

workers in Icelandp.235).

Over the last 20 years, there have been

The Directorate of Health oversees thechanges in policy regarding the care ofquality of health service in Iceland.

older adults in Iceland to keep older

There are a number of policies andpeople at home for as long as possible

regulations on the matter of caregivers.

(Sigurveig et al., 2016). This is reflected

In the minimum requirements for thein the Act on the Affairs of the Elderly, No.

operation of healthcare (2019), there is

125/1999. In Iceland, there are few lawsa stipulation to follow the Regulationand policies that influence caregiving.

on Supervision issued by the Medical

In Laws on health care staff (34/2012),

DirectorofHealthregardingthewhich provide the quality framework

operationofhealthservicesandfor the healthcare professions, there isminimum professional requirements

no mention of staff who do not have a(2007).

legally valid job title, which caregivers

following where staffing id concerned:

do not have, or of informal staff. In the“Only healthcare workers who have anlaws there is a focus on ensuring

operating license provide the service.

service,health-related

The number of healthcare workers

homecare and social support services

must take into account the scope and(which are governed by a special law,

naturethe Laws on social service (40/1991), also

circumstances at each time”. Anotherservice driven), but no mention of how

policy in this area is Defining Criteria

to ensure the quality of care and ethicalfor manpower in Nursing Homes

Eldercareservicesuchprovision

as

111

The

of

regulation

theservicestates

and

the

the

(2015), which comes closest to defining

large. Measures are taken if immigrants

the quality of caregiving in the country

lose their jobs in the domestic labour

and includes guidelines describing themarket,requirements for nursing and living

individualised

space (2007). As regards social services

participation of the individual. How

as part of homecare, the area where

this operates in practice is hard to say.

many caregivers work, there are no

But Laws on the working rights offormal quality guidelines except forforeigners (97/2002) support this, as does

those some local authorities have put

the Equal Treatment Act, regardless of

together for the standard of care theyrace and ethnic origin (85/2018). In thewant to provide. The criteria for labour

Laws on matters regarding immigrants

in nursing homes set the recommended(116/2012) there is no safeguard put

proportion of skilled persons among

forward for job security or recruitment;

staff at 77.87% and the minimum

the legislation only mentions a social

proportion at 57.13%. By way offramework that applies to services

example, a 2019 audit of one Icelandic

provided by the state and local

nursing(inauthorities. A report from the Minister

Region),of Social Affairs and Housing of Iceland

concluded that the ratio was 45% andon the status and development ofthat was rather high compared to otherimmigration issues in 2016 states that

Icelandic nursing homes. In this audit itan

was also stated that just under a third

immigrationof nurses in Sunnuhlíð, or four of

expanded opportunities for continuing

thirteen, were of foreign origin. Thereeducation and work-related studies.

was no mention in the audit of the

The report puts forward a proposal forgender distribution among the staff.

a special plan on the behalf of the

Reykjavik,

home,Sunnuhlíð

Northeast

withincreaseanemphasisservicesinand

activepossibilities

would

on

for

necessitate

government. Implementation planning
The government policy on immigration

on important issues of immigrants’

integration (2007) states that the work

population for the period 2016-2019.

participation rate in Iceland is among

One additional goal is that immigrants

the highest in the world, especiallyshould enjoy opportunities and rights

among immigrants. This is encouraged

in the labour market equal to thosewith statements about guaranteedenjoyed by others. No research wasaccess for foreigners who are allowed

found on the progress or outcome of

to stay and work in Iceland and thethis plan. However, a report from thepolicy extends to the labour market atState Audit from the year of 2018 points
112

more

To find the caregivers, e-mails werecommon among immigrants than othersent to managers of three institutions in

Icelanders. In this light, it is clear that

Finland, Sweden and Norway. Some of

no exceptions are made for immigrant

the informants were located using aworkers, publicly anyway.

snowballtechniquenetworks.

The

out

that

unemployment

is

from

existing

interviews

were

4. Empirical study and the research

conducted between May 2020 andprocess

September 2021. A sample of theresearch questions was sent via e-mailIn order to better understand how

to managers of care homes and to otherpolicies are implemented at the groundindividuallevel, we carried out a small empiricalwere also called via telephone to

study, undertaken by the lead author.

explain more about the aim of theTwenty caregivers and managers frominterviews. Permission was received

Nordic countries– Finland, Norway,

for the study by e-mail from theSweden and Iceland – involved withmanagers of the care homes. In the caseelderly care were interviewed using aof individuals, some permissions weresemi-structured

questionnaire.

The

received by e-mail and others orally

questionnaire

encompassedthebefore conducting the interviews. A

following themes and issues: elderly

total of 20 interviews were conducted,

care sector (formal and informal, public

sixteen of care professionals and four ofandmangers. The distribution by country is

private)

in

their

country;

qualificationsforcaregivers

caregivers.

Respondents

andas follows: six from Finland, two fromrecruiting polices; impact of the corona

Sweden, ten from Norway and two

pandemic in the care service sector;

from Iceland. Among the twentysocialinformants,

problems

challenges;

andprofessional

implications

six

have

immigrantofbackgrounds; three were men andmarketisation in health and social careseventeen were women. The age of theservices;

recognisingequalityandcaregivers ranged between 25 and 55

inequality;

present

situationofyears. Ten interviews were done face toimmigrant caregivers; number of men

face, the rest via telephone, zoom or e-

and women working in the care sector;

mail. Not all informants answered allpresent work atmosphere and future

the questions. The discussion below is

expectation and needs in this sector tobased on a combination of a literature

promotereview and the empirical data from thegenderequality

among

caregivers.

interviews.
113

5.

Discussions

on

care

work,

do some of the work better, forcaregivers and gender equality

example, lifting heavy clients. Previous
studies show that it is difficult toIn the Nordic countries, although theevaluate gender equality in this sector

demand for caregivers is increasing inbecause of the high proportion of

the care service sector, people are not

women (Elwér et al., 2012).

interested in applying for jobs in the
sector. The reasons for this include theCare work and support should not be

relatively low status of the work, theseen as part of human nature, or

low salary levels, stressfulness of thesomething natural for women that does

work

working

not require professional skills. Yet, it isconditions. When older people need

often considered an instinctive ability

care

of women that does not require skills

andunfavourable

becausefragility,

they

of

their

that

and training (Tuominen, 2003). One

provide direct emotional and social

point that was raised with reproach bysupport (Brody, 1985). Care work

the 20 informants was that careencompasses caring for and caring

involves skills and responsibility with a

about

both

combination of love and affection.

physical care and emotional care

Cancian and Oliker’s (2000) research(Cancian and Oliker, 2000). But thisrevealed the prevalence of this viewcaring work is traditionally ascribed awhereby care work requires little

low status and is dominated by womentraining for caregivers and thus they

(Elwér et al., 2012), an observation

may be paid less and given little respectconfirmed by all twenty informants.

(Cancian and Oliker, 2000, P. 9). In thisThe managers and all the female

regard. the manager of a nursing home

informants mentioned that there isfrom Norway stated the following:need for more male caregivers to“Women like caring work very much,balance out the gender distribution in

but the salary is low compared to their

the profession and to make it more

job responsibilities; they have too little

gender equal. However, it is good totime to do all work. They are very

keep in mind that men are likely tostressed; we need more people. Theyexperience downward labour mobility(caregiver) can use their education if

in relation both working conditions

they have time to read and come up

and social prestige if they start to workwith innovations. Now nurses are justin the female-dominated care sector

running and running”.

others,need

increasing

which

services

entails(Zechner and Anttonen, 2022). Men can
114

very

strong family ties of Icelanders and theimportant in all sectors. Caregivers

culture that prevails there can have an

informallybiggereffect. "I cannot rule out that this is

responsibilities and risks when caring

strong in our culture as well, I thinkfor clients, because of the shortage ofthere is an interplay of these views andworkers in the healthcare system

it can be difficult to realise which comes(George, 2008).

first. Is there is a strong culture for thisWorkingenvironments
take

are

on

Informants fromthat

and that is why we have not developed

somethese resources well enough or has the

caregivers who work regularly in theculture been shaped in this way

sector easily become tired, which

becauseimpacts their health and wellbeing

inadequate"? (Google translation fromnegatively.

Icelandic)

FinlandandNorwaybecause

of

the

All

noted

shortage,

women

caregivers

theresources

have

been

believe that wages and the status ofcare work would improve if society’s

In their research on the care service inperception of care work and thethe UK context, Hussein, S. andworking environment improved andChristensen, K. (2017, p.763) note themore men were employed in the sector.

following:This view is supported to some extent

marketisation in particular create nicheby previous research (Elwér et al., 2012;

markets for migrant men where new

Kröger and Vuorensyrjä, 2008, p. 225;

roles that embrace gender diversity are

Korvajävi, 2003).

created. Despite these circumstances,“Personalisation

andcare work remains women’s work andCaregiving is generally thought to be asome migrant men who want to accessfemale duty in any society but this

this sector face by several challenges”.

perception

between

One might rather say that there issocieties of distinct character andnothing in care work which would

culture (Abellan et al., 2017). In thisprevent from men taking it up. It is notregard, a care manager from Finland

valued and low paid and can cause

stated that the most influential things

lower status in hierarchies (Hussein

shapingareand Christensen, 2017; Palle et al.,caregivers’ family, financial situation2019). In stating the importance of maleand education, as well as government

care professionals’ role in a nursing

policies.

Sociologist

home, women caregivers from Norway

Kolbeinn

in

could

differcaregiving

his

services

Stefánsson

interview(2019,and Iceland mentioned that men can be

published online) points out that thegood caregivers when this care work115

reinforces a valuable identity for themBothand if it fits prevailing cultural beliefs

informants’ experiences gave rise to aabout gender. Men will focus on

striking observation: for the most part,

caregiving work more intently than on

women remain the primary caregiverother work when they know and realise

at home even when they are employedthat caring work is morally morein a poorly paid caregiving job. These

meaningful than other work (Cancian

issues continue and exacerbate genderand Oliker, 2000, P. 6-7; Palle et al.,inequality in the public sector and2019).

politics, as well as at home. Informants
also

the

literature

mentioned

reviewthatandindividuals,

Women do most of the unpaid and paid

communities and society are convinced

caregiving (Elwér et al., 2012). All

that women are better at caring, partly

twenty respondents talked about the

because the gendered pattern has beenlowsalaries

care

sector.

so resistant to change (Cancian andmentioned

how

Oliker, 2000, p.132). Policies in thisdifficult it was for them to manage

regard are most likely to reinforce

during the last year with the Covid-19

gender inequality, which encourages

restrictions. They were separated frommen to specialise in earning money andthe social community since they were

women to focus on unpaid family

giving services to older people who

caregiving. The success of care worker

were in a vulnerable situation. In thispolicies in effecting gender equality

regard, an informant from Finland

depends on how well the policies,

commented, “though relatives of thealong with other social forces, bringclients and Government have praised

men actively into domestic and paid

our work during this pandemic, it is notcare (Cancian and Oliker, 2000, p. 121).

Informants

enough;

in
also

the

the

salary

needs

to

be

increased and the work environment

Caring for others has also beenshould be improved”. In the careconsidered natural in the Nordic

sector, equality requires sharing the

tradition. The caregivers’ main goals

satisfactions and burdens of caregiving.

are to relieve the care receivers’

All the care professionals interviewed

sufferings and to support the healthmentioned that quality care work

and wellbeing (Arman et al., 2015) of

requiresolder

qualifiedandhighlypeople.

Todeliverquality

motivated people who give enoughservices and to support older peoples’

time to fulfilling the needs of carehealth and wellbeing, it is important toreceivers.

ensure116

caregivers’socio-economic

position and wellbeing. Caregivers’

Finland, which is a waste of ourissuesneglected,

valuable education. Here in Norway

discussed less than they should be andwe have received proper recognition”.

not

are

essentiallyresearched

example,sufficiently.

andHowever, the Government has alreadyDahlberg (2008) have emphasised thecarried out an extensive reform inlackconsciousness

Finland, namely the “family leave

regarding care receivers. This claim isreform” (perhevapaauudistus), which

also relevant for caregivers. An OECDwill make the care done at home more

report (Colombo et al., 2011) indicatesequal and help women to get back intothat size of the working-age populationand stay in the labour market. Recently,

is expected to shrink. Women betweenathe ages of 25 to 54 years with a higher

immigrant women and men both are

education are

involved in the care sector in the Nordicof

Martinsen

Fora(2006)

caringmost likely

to be

trend

has

emergedemployed as care workers (Stone, 2016;

countries,

International Labour Office, 2013).

services and support. Many Finnish

Since care work is physically stressfulcare professionals are also working inandNorway.

predominately

low-paid,theespecially

Accordinginwherebytolong-term

previous

availability of care workers has become

research and informants from the four

more

Nordiccountries, more immigrant men andcountries, a point clearly articulated by

women are being recruited in thiscare

sector.

challenging
professionals

in

the

from

Finland,Many

privatefamilycare

Sweden, Norway and Iceland. Basedreceivers rely on private migranton informants’ comments, it can be said

workers (Bednarik et al., 2013), a trendthat the situation and status of anwhich was cited by an immigrant maleoccupational nurse (sairaanhoitaja) in

caregiver from Sweden. Among my

Norway is better than in Finland. Many

informants were two male immigrantFinnish nurses have gone to work in

caregivers and one female caregiver

Norway. Five interviewees (nurses)

who were giving services with just acited two reasons: the higher workload

few weeks’ training. They do not havein Finland and higher salary and more

any

free

femaleInformants from Norway mentioned

informant from Finland (sairaanhoitaja)

that the proportions of native andremarked, “our union in Finland does

immigrant care professionals in their

not work properly for our wellbeing.

institution are about 60 and 40,

We also had to do practical nursing inrespectively. The migrants are from

time

in

Norway.

A

117

nursing-related

education.

Finland; from Asian and African

place to another. I am receiving a very

countries, such as the Philippines,

small salary, and the attitude of theThailand and Eritrea; Eastern Europe;clients’ relatives toward me is not nice.

Russia; and other countries. Most of theThis may be because I am Muslim;

immigrants do practical nursing work.

especially last Christmas his sister’sLanguage is the main barrier for some,

attitude was racist”.

hindering them from performing theirjob like native workers.

The workforce in the care sector is also
becoming more diverse nationally, as a

The empirical study elicited mixed

growingcomments

immigrant backgrounds

fromnativecare

numberofpeople
are

with
being

professionals about their immigrant

recruited.

colleagues.

nativehowever, far from evenly distributed

caregivers, for example, “some men are(Olakivi, 2018). In 2001, only 1% of all

working very fast, which shows lack of

employees in health and social services

love and devotion for the work,inwhereas women caregivers from Asia

background, and by 2013 this had risen

show more respect, which older clients

to 3% (Statistics Finland, 2016). It is

like

Muslimdifficult for immigrant care workers to

immigrant caregiver from Norway

get their qualifications recognised, astated that she was a doctor in her

problem acknowledged by the carenative country but had not received amanagers

license to practice in Norway. She wasinformants. Managers and immigrantworking as a nurse in a private

informants made the same point. In thisinstitution where I care for a disabledkind of situation, private organisations

man and older people. When she went

are making more profit and immigrants

to another institute for a job interview,are facing more inequality than othershe had to face the prospect that she

workers.

it

Accordingverymuch”.

to

A

Such

Finlandhad

anddiversification

an

all

is,

immigrant

immigrant

could not use the hijab if she were
hired, which she found to be a violation

In the health and social services inof her human rights. She stated: “I amHelsinki, the percentage of employees

working

institution;with an immigrant background grew

because of the language barrier I could

from 3% in 2001 to 9% in 2013 (Olakivi,

not apply in many places. I have an2018). In health services in Helsinki inimmobile client who is in wheelchair; it

2013, 9% of all employees were foreign-is difficult for me to move him from one

born, whereas in social services, theinaprivate118

In

Antero Olakivi (2018), migrant care

residential care for older and disabledworkers are presented in diverse ways

people, the proportion of foreign-born

as active, independent and enterprising

employees was 19%. At the same time,

but also as cheap and disposable

the proportion of migrants among all

labour. He observes. “The recruitment

employees

sameproportioninImmigrant

was

was

10%.

of migrant care workers can also violate

workersarethe interests of older clients if the

managerial

language (or other) skills of migrants

Helsinkicare

underrepresented

12%.

in

are conceived as deficient.”

positions (Olakivi, 2018; Aalto et al.,2013: 66; Näre, 2013). Finland has
courses

specificallyplannedfor

Many researchers in the fields of law

migrants to attain the qualification ofand gender have found that unequal

practical nurse (Nieminen, 2011). In

power is most often rooted in age,

Norway, the elderly care sector is angender,arena for immigrants (Eide et al., 2017).

(Gunnarsson

Increased

Ylöstalo,

immigration,

including

ethnicity

and

class

and

Svensson,

2017;

2012;

Svenssonandpeople with refugee experiences, has

Gunnarsson, 2012; Stenström, 1997, p.

actualised

45),

the

need

for

more

which,

according

to

some

knowledge on effective integration

caregivers, is because of reduced

measures.

budgetsinmunicipalities.

Additionally, some of the Norwegian
Immigrant care workers need work

caregivers stated that nursing homes

permit from the authorities. Of theand care institutions recruit people forpeople working as nurses, some have acare work from the street without

degree, some have completed various

requiring any education.

courses, and some have at least taken
language courses. Those who do not

Previous

have nursing degree, are working as

managers in the care sector haveassistants

Temporary

revealed that the increasing tendency

workers can work as caregivers but

to recruit migrant workers is a practicethey do not have a permanent contract.

guided by illegitimate, managerial andThose who have no skills or education

economic

are paid much lower salaries and do

biased, stereotypical conceptions of

not receive long-term work-related

migrant workers (Carter, 2000; Näre,

benefits, as they have short-term2013).

contracts. According to researcher

countries,

tonurses.

119

studies

interests

However,

on

the

and

most

including

role

of

managers’developedtheNordiccountries, have managed well with

Women continue to dominate theimmigration schemes for recruiting

caregiving sector, even though many

foreign workers, but such schemes are

women are breadwinners in the Nordic

relatively rare when hiring migrantcountries. Women’s majority in formal

workers in care services (Spencer et al.,and2010). People without an immigrant

inequality; they lose paths to justice. It

background who have other options in

is also very disappointing that there are

the job market have rather little interest

no signs that men are becomingin the care profession. This trend gives

caregivers in equal numbers. Gender-a different picture of gender inequality

neutral policies seem to have intensify

inthe distinctions between men’s andNordicespeciallysociety.

Careimmigrant

workers,

women

informal

women’sincareaffects

employment.

genderLaw

andpractice, at times do two full-time jobs,

government policy and programmes

one at home, the other at work. On

affect cultural beliefs and families’

many occasions, the societal mindset

private struggles. Men can be effective

and expectations suggest that the care

caregivers

profession is the easiest one, andresources of time and money and if

mainly meant for women.

they have learned appropriate skills

if

they

have

adequateand standards of caring.
6. Conclusion
In the empirical data respondents
The political situation is changing allraised the point that the value of care

the time and countries are cutting theirwork and the compensation offered arewelfare provision because of theira mismatch; salaries remain low. Lackcurrent

economicof sufficient workers often results inpolitics.

Care

conditions

andincludesstrongresponsibility

andcaregivers, which affects both theiraffection. It is very depressing that care

physical and mental wellbeing. As awork has not been seen as skilled work

result, the quality of the work may

and thus has not been valued andsuffer and it may fail to be as effective

respected

properly.

have

as desired. Because of overload andremainedthedomestic

tiredness, some caregivers decide tocaregivers. Today, women still do moretake early retirement. This again bringsof the caregiving, with society trying toother negative incentives for them: amaintain that they are more likely to

low salary throughout their career,understandfollowed by a lower pension due toprofessionality,

care

Women

primary

receivers’

extremeneeds.
120

pressureon

existing

early retirement, amounts to multiple

work more respected and rewarding,vulnerabilities. As in other countries, inwhich would influence gender patterns

the Nordic countries being a wage-

in the sector.

earner remains a source of respect,privilege and social power.

To improve both the rights and•responsibilities

of

both

men

and

It is essential to hire properly qualified

women, a combination of measures

and well-paid care professionals inshould be used, such as better working

eldercare service institutions. Since

conditions, higher status and salaries

most of the caregivers are women, thisforapproach should go hand in hand. It

responsibility for care giving.

the

work,

and

sharingthehas been stated that in all domains “ofwelfare an anti-racist dimension must

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