Written in an approachable style, its chapters opened by folksy illustrative episodes from the author's and others’ forays into the Arctic, this welcome book serves both as an introduction to the gradually thickening web of international instruments guiding the interactions of not only States but also the indigenous peoples of the Arctic and as a corrective to the misleading picture created by the conflict-obsessed media for whom peaceful cooperation is less nourishing fodder than an imaginary looming confrontation over resources and the boundaries that determine title to them.
Byers usefully reminds us in his first chapter, titled Territory, that the 1990 US/Russia Bering Sea boundary treaty did not simply reproduce the dividing line in the 1867 treaty by which Alaska changed hands but resolved a dispute centred on a technical ambiguity about where the lines joining the turning points actually run. In Chapter 2, which surveys the region's settled and unsettled maritime boundaries, the former notably preponderant numerically, his remarks on a minor dispute between Canada and Denmark about the validity of certain basepoints on Greenland have subsequently been borne out by the 2013 agreement establishing an exclusive economic zone (EEZ) boundary in the Lincoln Sea. On the Svalbard archipelago too he records progress: the most extreme interpretation of the1920 Spitsbergen Treaty, namely that it prevents the islands generating an EEZ and continental shelf at all for Norway, has been abandoned by the States that previously advanced it. Even the one genuine territorial dispute, over minuscule Hans Island, is reduced in significance yet further by the 1973 Canada–Denmark continental shelf boundary unusually reaching all the way to the low-water mark on the island's opposite shores, ie both States have elected to treat it as though it did not generate even a territorial sea for whichever of them has the better claim.
Chapter 3 is devoted to the one actively contested boundary (as opposed to several others not yet negotiated, latently rather than actually disputed), between Canada and the United States (US) in the Beaufort Sea. Byers makes much of the fact that their respective positions—the 141°W meridian and the median line—become disadvantageous to their own side when extrapolated to the continental shelf beyond 200 miles, a factor that may make the solution easier, though he assesses that the area within 200 miles is more valuable for both States than the larger area beyond where the two lines intersect. Yet, as this is not the only disputed US/Canada boundary, in practice a resolution may have to await a package deal that settles all their outstanding boundaries, Arctic and non-Arctic, at once.
The fourth chapter is on the extended continental shelf beyond 200 miles. With the Arctic Ocean seabed dominated by several ridges, how far each coastal State's entitlement actually extends will depend on their individual characterisation. Byers distils the views of the Commission on the Limits of the Continental Shelf and others, discerning some emerging trends but concluding that each ridge is likely to be unique, so that uncertainty will remain until the process under Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) of submissions to the Commission and recommendations back from it is completed, which so far only Norway has done. He weighs the procedural options of the remaining four Arctic coastal States, noting perceptively that Russia would lose its place at the head of the queue for its resubmission if it makes it jointly with one or more of its neighbours; the pros and cons of negotiating provisional or permanent boundaries before making the submissions, or before the Commission's recommendations are received in return, are analysed. One jarring note is his suggestion of invoking the UNCLOS dispute settlement provisions to determine the status of Lomonosov Ridge—surely riskier, assuming the forum were to agree to decide this predominantly scientific question, than leaving it to the Commission.
Chapter 5 concerns Arctic straits, several of which, most prominently the Northwest Passage through Canada's Arctic archipelago and the Northern Sea Route along Russia's Arctic coast, are the subject of live disputes, though tractable and well-contained. Byers shrewdly analyses why Canada and Russia, despite having largely parallel interests in these disputes, have held back from mutual support. Ironically, despite indirect evidence of many covert submerged transits by submarines over the years, their unacknowledged nature means they cannot found a case for a more liberal navigational regime. The melting of the ice induced by global warming threatens to upset the 1988 US–Canada modus vivendi, and Canada has little incentive, Byers points out, to make the necessary investments in oil spill response and search-and-rescue capabilities if its jurisdiction to regulate shipping is contested. He also expects the relationship of Article 234 on ice-covered areas with Part III on transit passage in straits used for international navigation to come under strain as such areas become open water for most of the year. Strangely, despite the many suggestions peppered throughout this and other chapters on how matters should be taken forward, almost nothing is said about the intermediate régime of innocent passage, which is both closer to the actual legal position in these waterways than the protagonists’ polarized stances (internal waters on one hand, with entry at the coastal State's discretion, and transit passage rights on the other) and the probable nucleus of any compromise solution.
In Chapter 6 Byers turns to environmental protection, calling for a fisheries management organization to be created in the Arctic before distant-water fishing States become entrenched there, though the analysis is slightly askew because he assumes they could be excluded from the negotiations provided the resulting body were open to them. (In fact, as seen in other oceans, the start of such negotiations itself triggers the interest of other States who under Article 9 of the UN Fish Stocks Agreement should be notified, precisely so that they can join the talks.) He observes that there is no treaty yet on liability and compensation for pollution from offshore oil installations, which would be particularly disastrous in the Arctic, and makes a strong case that, whatever the policy justification for capping liability elsewhere, the desirability of internalizing the pollution risk costs outweigh it in the Arctic context.
Chapter 7 discusses the indigenous peoples of the Arctic, opening with a tour d'horizon. Given that the Canada–US Beaufort Sea dispute crystallized in the 1970s, Byers sees the later setting of 141°W as the western boundary of the area subject to the Inuvialuit Final Agreement as misjudged if its aim was to bolster Canada's position. He does a fine job of cutting through the often unsatisfactory arguments of both governments and NGOs, though letting pass without comment the circularity in the pertinent clause of the Nunavut Land Claims Agreement. Even so, indigenous peoples have secured significant procedural rights as permanent participants in the Arctic Council, and their negative reaction in the 2009 Circumpolar Declaration on Arctic Sovereignty to the previous year's meeting of the five coastal States, while not entirely persuasive legally, appears to have succeeded politically in ending such smaller gatherings from which they are excluded.
Lastly, Chapter 8 concerns security, in which Byers views benignly the force of modernizations being undertaken by the Arctic States, accepting that they are aimed at non-State threats such as terrorism, drug smuggling and illegal immigration, though these too are insignificant relative to their scale at lower latitudes. He terms ‘anachronistic’ the footnote in the 1996 Ottawa Declaration establishing the Arctic Council that prevents that forum discussing military security, though as an instrument not of treaty status, and thus non-binding, it can easily accommodate an eventual collective change of mind. He laments the obstacles to China's permanent observership of the Arctic Council as clumsily and unnecessarily provocative, the way the conditions are expressed suggesting members’ preference to run the Arctic Ocean as their own preserve (although equally it is not apparent in statements of China and others such as the European Union why they should take any greater interest in the Arctic Ocean than in other seas far from their shores). Nor do the prospects of making the Arctic a zone free of nuclear weapons seem bright; such zones have tended to flourish only in regions not yet penetrated by these weapons, which long ago ceased to be true of the Arctic. Although the Arctic Sunrise case came too late for inclusion in the book, there is mention already of protesters on oil rigs, with a clear distinction drawn between such activity and terrorism. Byers notes wryly that the first treaty negotiated under Arctic Council auspices, on air and sea search-and-rescue, does not actually augment the parties’ existing obligations under the generally applicable Chicago Convention and the International Maritime Organization's Search and Rescue Convention; instead, its real importance lies in the encouragement to cooperation among its parties in these fields that pervades its text.
In sum, the book benefits greatly from the dual perspective—international relations as well as international law—that Byers brings to bear on his subject, which is far more illuminating than a dry exegesis of the various texts would have been, and will appeal to scholars and students of both disciplines, as well as general readers. While it probably tells governments as a whole little they do not already know, it should certainly appear on the list of recommended reading that greets every newly appointed minister for Arctic affairs, who would do well to have a stock of copies handy to press on the more excitable headline-hunting journalists who interview them. From a legal perspective, much more significant than the odd minor inaccuracy that careful readers will notice is the fact that the author's legal instincts as to what UNCLOS and the broader international régime aim to achieve are sound, even if occasionally the specialist whose interest is piqued by some issue might wish for more detail. (This reviewer, for example, was curious to know whether the Inuvialuit-Inupiat Polar Bear Agreement, clearly not governed by international law, says anything about what proper law does govern it, and which of the C$40 m liability limit under general Canadian shipping legislation and the unlimited liability for certain types of damage under the Inuvialuit Final Agreement prevails.) While the currently high relevance of the book's wealth of detail on recent cooperative initiatives in the Arctic will slowly fade and the disputes too, on current trends, will move towards settlement, the concise description of the legal and political architecture that it offers is likely to remain recognizable for some time yet, even as new elements are added in the decades ahead. Byers convincingly argues that developments are moving in the right direction in the Arctic and we are at the beginning of a new phase in which the increasing cooperation that States have seen is in their interests takes on the more familiar outlines found in other parts of the world, with existing legal regimes as a good basis for preventing, managing and resolving disputes. The legal landscape of the Arctic will doubtless look rather different by mid-century, but for the moment, the mere fact of the new agreements taking shape is more important than their precise content.
