Introduction
The Northern Forum (hereinafter the forum) is a unique international cooperation body that operates at a sub-national level. Formally established in1991, it aims to improve the quality of life of peoples living in the north and to support their sustainable development. Its membership consists of sub-national governments (that is, regional, sub-regional and municipal) from three continents (Asia, Europe and North America) although it is registered as a non-profit corporation under the domestic law of the United States. The forum describes itself as an international organisation even though its founding document is not an international treaty and nor is it covered by the law of international organisations as articulated in public international law. It operates on the basis of internally defined resolutions and bylaws and maintains relationships with other relevant international organisations. Its financial affairs are governed by U.S. national and state of Alaska laws.
Thirteen sub-national governors, in their official capacity, from eight states (Norway, Mongolia, United States, Soviet Union, Finland, Canada, Japan and China) established the forum, under the Alaska Nonprofit Corporation Act in November 1991 for ‘charitable, scientific, literary and educational purposes’ (NF 1991a: article iii). Subsequently, it has accepted new members and has established a clear functional structure. However, its legal status under international law remains ambiguous: the constituent instrument is not a treaty, thus it is clear that it is not an international organisation. Nonetheless, the forum's creators were mainly representatives from regional governments (not national-level state representatives), which means that the forum is not an intergovernmental cooperative body. It allows business organisations to hold membership alongside sub-national governments and this is an innovative concept in international cooperation.
The forum has been studied very little despite being in existence for two decades. The only other articles appear to be a short description (Langlais Reference Langlais2000: 23–28) and an even briefer description by the author (Hasanat Reference Hasanat2007: 23–25). For this reason, it is important to have a closer look at its structures and functions. This legally-oriented study raises several questions. Does the forum hold a clear legal status under international law? What type of obligations does the forum create for participating entities? Does the forum pose any challenges to classical international law? Has the forum created any new norms in modern international law? The answers to these questions will be of interest and benefit to northerners and the global community alike.
This article explores these questions and searches for their answers rather than offering a critical view of the forum's performance, successes or failures. Since there are no general accounts in the academic literature, it is useful to examine the evolution, structure and functions of this unique form of international co-operation without comparing it to parallel developments of other northern and Arctic international co-operation forums.
The article consists of eight parts. Following brief reviews of its historical background, structure and operational systems, this article explores legal elements within the forum itself, including its status and the challenges such an entity poses in international law as well as an assessment of the influence the forum offers for the creation of new norms in international law.
History of the Northern Forum
The genesis of the forum dates to the 1970s, two decades before its formal establishment. The development of a common platform for the regions of the north evolved from several initiatives that led to the establishment of a not-for-profit, membership-supported international organisation (Langlais Reference Langlais2000: 23). The structure and focus of the current activities of the forum emerged from a series of four major conferences. These meetings culminated in the official establishment of the body in 1991.
Early meetings of the International Conference on Human Environment in Northern Regions
The seed of the forum was sown in 1974 when the Governor of Hokkaido, Japan organised an international conference on the human environment in northern region in Sapporo. Representatives from 15 provincial and regional governments in North America and three Scandinavian capital cities attended the inaugural meeting of what was to become the Northern Forum. The conference identified common opportunities and challenges related to environmental, climatic, or socio-economic concerns in northern regions. The participants concluded that the way one region addressed a particular issue could be applied to other regions. Improved communication and cooperation among the inhabitants of northern regions through more frequent meetings to discuss common issues would improve the standard of living of inhabitants across the northern regions.
The second International Conference on Human Environment in Northern Regions convened in Alberta, Canada in 1979 with representatives from 22 northern regions. Their goal was to identify the means for improving the lifestyle of inhabitants of northern regions (NF undated a). They realised that having an organisation to deal with common concerns emerging from the northern climate could benefit the entire region, although no definition of ‘northern climate’ was offered.
Cooperating in a changing world: the statement of intent and evolution of the Northern Forum
By 1990, the world had changed and the opening of the USSR to the outer world provided northern Russian regions with the opportunity to join in the creation of a ‘voice of northern regions’ with the convening of the third Conference of Northern Regions in Anchorage, Alaska (NF undated a). The conference progressed in two stages: i) the Governor's summit on regional environmental cooperation, during which governors, premiers, ministers and chairs of northern regions or their representatives adopted political decisions; and ii) cooperating in a changing world, four workshops organised under the auspices of the International Business Forum with contributions from political and business representatives.
Regional leaders agreed to move forward with international cooperation for the development of northern regions; the business community representatives mainly prepared recommendations to advance cooperation. Participants recognised that the irregular or ad hoc basis for transboundary cooperation was not serving the needs of inhabitants of the region and recommended the establishment of a permanent regional organisation for the north, namely the Northern Forum (Governors’ summit Reference Governors’1990: clause I). The ‘statement of intent’ was adopted by nineteen regional governors representing nine states (Canada, China, Denmark, Finland, Japan, Soviet Union, Sweden and United States). The delegates intended that the forum would act as a mechanism for regular interactions among representatives of northern peoples; improve the quality of local, national, and international decision making regarding northern issues by providing a means through which ‘northern voices’ could be heard; and offer opportunities to exchange ideas, address common problems, as well as plan mutually beneficial cooperative northern regions’ initiatives (Governors’ summit 1990: clauses I and II). Although ‘northern regions’ remained undefined, the conference did encourage other northerners to participate in this cooperative initiative.
The signatories to the statement of intent agreed to establish the forum as a ‘permanent organization’ (clause III (A)) with representatives from all participating regions establishing a council (Governors’ summit 1990: clause III (B)). The secretariat would serve as a collective voice both regionally and internationally (Governors’ summit 1990: clause III(C)). They decided that the office of the Governor of Alaska would provide staff services on an interim basis which was tasked with receiving and disseminating specific proposals regarding the terms of reference for the forum and circulating draft bylaws for comment and approval within six months. They also identified issues of common concern for cooperative activities (Governors’ Summit 1990: clause IV):
environmental assessment, monitoring and research;
infrastructure, including northern communications and transportation systems;
northern technology and engineering;
human resources, including culture, education, and health;
protection and cooperative management of northern renewable resources; and
pollution prevention and clean-up.
While political leaders established the parameters for regional cooperation at the sub-government level, the international business forum explored issues from the viewpoint of obstacles and opportunities to business and economic development in the north (International Business Forum 1990: 1). The workshops came to a consensus on a detailed model for regional cooperation recommendations (International Business Forum 1990: 1–4) under three broad categories:
1) Natural resources development, fisheries, and appropriate northern technology (for example development of model technology transfer and communication systems and regional demonstration projects; targeting small business, tourism, manufacturing and international trade initiatives; natural resource conservation; development of fishery management measures for the Bering Sea; facilitating fisheries industry innovation in processing, species utilization, marketing, and waste products utilization; international fisheries research)
2) Northern markets, financing and tourism (for example sources of and access to capital, creation of an international fund for economic development, inventory and coordination of economic development institutions, coordinated efforts to dispel myths of the north that hinder investment, enhanced support for regional advocacy and implementation of measures)
3) Communications and transportation (for example enhanced multilateral cooperation in telecommunications and air and sea routes)
The adoption of the statement of intent galvanized cooperation and facilitated communication among participant regions, which led to the May 1991 Northern Forum conference. The participants to this conference adopted the Northern Forum agreement (NF 1991d), which established the functional bodies and rules governing the forum. Most of these bodies were established on an interim basis and were later transformed into permanent units.
A draft charter for the forum, together with bylaws and draft policies excerpted from the statement of intention, served as the basis for discussion. Participants agreed to nominate/elect a board of directors who would be tasked with preparing a final set of bylaws, rules, and regulations, which then would be confirmed by the general body (NF 1991c: 38) comprised of regional leaders (NF 1991c: 28). They decided to register the forum as a not-for-profit organisation in order to be affiliated with the United Nations (NF 1991c: 32).
Participants raised several questions concerning the funding of the forum (NF 1991c: 22). How would one region finance a selected project that had priority and one that benefits other regions? Who would provide the funding for the forum, that is, federal or local governments? In the end, they agreed to two types of projects: those funded by all members that demonstrated the regional capacity of the forum at the international level, and regional projects funded by interested parties that met the goals of the forum and reported to it (NF 1991c: 33). At that stage, some participants were concerned about the limits of their authority to give consent to an international cooperative initiative such as the forum (NF 1991c: 31).
Understanding was reached on certain words used in the draft charter. They used the word ‘local’ to avoid confusion with terms articulated in the national constitution of a state and a lower case ‘g’ when referring to governors. During the debate they did not find it as critical as if it were involved in court (NF 1991c: 79–80). Yet, some participants had the idea that northern provinces and Arctic provinces are the same since the definition of ‘north’ remained unresolved at this meeting. Clarification was needed on the extent to which a sub-regional entity such as a province, as a member in the forum, could support a forum statement that was different from its national government view (NF 1991c: 65).
The conference concluded with the adoption of the Northern Forum Agreement (NF 1991d), which included, inter alia, provisions for an interim organising committee (Board of Directors) consisting of one representative from each of the eight participating nations. The main tasks of the Board were to review and revise bylaws, charters and principles used by the Northern Forum and its secretariat; to determine budget and fee structures for the members, to define ‘northern regions’, to clarify membership rules, to make up the permanent Board of Directors, and to review and revise proposals for the process of selecting priority projects (NF 1991d: section 4). The office of the Governor of Alaska was to develop a proposal for the process of selecting priority projects to be submitted to the board for review and comment (NF 1991d: section 5). The signatories of the Northern Forum Agreement agreed that all documents prepared by the interim board would be reviewed by the founding meeting of the forum. The founding meeting would consist of governors from all participating regions and would take the necessary steps to establish the forum formally and a timetable for that meeting was established (NF 1991d: section 6).
The founding meeting of the Northern Forum
The leaders officially adopted the charter in the founding meeting of the forum (NF 1991e) and registered articles of incorporation before a notary public in the state of Alaska in 1991. The participants at the founding meeting agreed that, in addition to their regular interactions, the forum would act as a means for cooperation, continuing consultation and exchange of concerns among the northern leaders (NF 1991b: preamble).
At subsequent regular meetings of the forum, regional leaders have adopted a series of declarations concerning principles and priorities for forum activities (NF 2008a: section 2.6(1)). The 1993 Tromsø declaration (NF 1993c) set out the goals and plans of the forum, concerning, inter alia, sustainable development strategies following on Agenda 21 (United Nations Conference on Environment and Development 1992) and the Brundtland Commission Report (UNGA 1987). In 1995, the forum provided guidelines and goals for the secretariat and member regions, enhanced the stated principles, and undertook a self-evaluation of its progress over the previous five years (NF 1995: preamble and section 2.B). In the 1997 Yakutsk declaration, leaders expressed their commitment to expansion of regional interaction and their optimism about the prospects of further cooperation in enhancing the role of the Arctic and the north in the international community (NF 1997: section 1).
The Lapland declaration (NF 1999: commitment of current activities) established a framework with specified time limits for results from priority projects and development of a viable long term financial strategy. This defined the forum's mission as follows:
To improve the quality of life of Northern peoples by providing Northern regional leaders a means to share their knowledge and experience in addressing common challenges; and To support sustainable development and the implementation of cooperative socio-economic initiatives among Northern regions and through international fora [original emphasis] (NF 1999).
The 2001 Alberta declaration (NF 2001a) recognised the need to advance northern economies, to improve the socio-economic capacity of the northern regions, and to enhance in a sustainable manner the quality of life in northern regions, in particular that of indigenous peoples. It also committed members to enhance the profile and operations of the forum and to continue to make it a multilateral voice for the northern regions. In 2003, the St. Petersburg declaration (NF 2003b) focused on the northern sea route as the single most important infrastructure priority in the northern regions and recognised the responsibility of members in protecting the Arctic environment, advancing indigenous participation in northern economies, the sustainable use of natural resources, maintaining and enhancing unique cultures in the northern regions, and promoting, as a priority, the creative potential of indigenous peoples.
The northern leaders noted with appreciation in 2005 the progress on priority projects and established partnerships with other circumpolar and global international organisations and the national governments of the north (NF 2005: background). They expressed their intention of enhancing the forum's partnership with the Arctic Council and other international organisations (for example the Barents Regional Council, the Network of Regional Governments for Sustainable Development, Nordic Council, Arctic Parliamentarians, and the United Nations) by identifying additional cooperative measures. The northern regional governments committed themselves to expand the forum's work in research and cooperation in climate change adaptation and to continue efforts to promote conservation of nature and ecologically sensitive development (NF 2005: background).
By 2007 northern leaders were able to demonstrate their progress in health care and education, expanded international cooperation regarding northern issues, and enhanced cooperation with the business community (NF 2007: B.1). They acknowledged the creation of the Business Support Services programme and praised members for their commitment to strengthening cooperation between regional governments and the business community (NF 2007: B.5). The declaration noted the success of projects enhancing quality of life in three major categories:
health care (for example telemedicine, infectious disease control, and treatment of substance abuse) education, including promotion of international understanding culture (for example support of performances and efforts to preserve unique northern cultures) (NF 2007: E.1)
Scientific cooperation under the auspices of the forum has focused on expanding knowledge about the northern environment and protection of life and property, in particular the impacts of, and adaptation to, climate change. The declaration also called for members to explore partnerships for circumpolar monitoring (NF 2007: E.2). The leaders committed themselves to organise yearly summits of ministers, including those from environment, education, health and economic development, to enhance cooperation between the member regions (NF 2007: E.2); to extend partnerships to relevant international organisations or UN agencies, and to take part more efficiently in the activities of the Arctic Council and the UN Framework Convention on Climate Change (United Nations 1992), and to implement a public relations campaign to enhance awareness of northern and Arctic issues and strengthen the voice of northern regions (NF 2007: E.2).
In the 2009 Whitehorse declaration, northern leaders recognized the impacts of global financial crisis on the regions and agreed to focus its projects and programmes on this issue (NF 2009c: D.1). They acknowledged the enormous benefits of bilateral and multilateral relations among regional governments from both a northern and global perspective. They emphasised the need for the review of the forum's strategic plan to focus on implementation of new projects and initiatives rather than a review of its mission or overall goals and objectives (NF 2009c: D.2). They recommended coordination of business summits and meetings on the current situation in northern economies (for example decreasing of rural population, lack of employment); innovation and expansion of green industries as alternative energy source and climate change mitigation and adaptation actions; a circumpolar regional pact aimed at addressing economic growth and advancing indigenous participation in northern economies (NF 2009c: D.3).
The forum will celebrate its twentieth anniversary in 2011 at its next biennial meeting in Korea where northern leaders will address future challenges faced by the north.
Structure of the forum
The forum comprises entities responsible for internal decision making purposes as well as overall policy making. The composition of these entities is based on a two-tiered/level membership system that has emerged over the past 20 years. After a review of the membership categories, each of the governing entities of the forum will be examined in turn.
Membership in the Northern Forum
Under the charter (NF 1991b: article VII), members must satisfy the requirements set forth in Article III of the bylaws, which provide for the granting of membership to regional governments (membership I) and business partners (membership II).
The interested governments of the northern regions are eligible for membership. However, it was somewhat unclear to how to appraise whether a region had the ability to become a member until the forum defined ‘northern regions’. Participants to the third Northern Regions Conference in 1990 (NF undated a) engaged in a long discussion about the selection criteria for defining a region as the basis of forum membership (NF 1991c: 40). To this end, they defined northern regions and membership selection on the basis of the following criteria:
Harsh climate and vulnerable ecosystems;
Small population, diverse and strong indigenous cultures;
Economy based primarily upon extraction of natural resources and outsourcing of all goods;
Limited internal investment capital, high operating costs;
Limited infrastructure, mostly oriented north-south; and
Limited influence on national government and multinational corporate decision making (NF 2008b: section 3.2).
Clearly other regions share similar climatic conditions and fulfill these criteria but they are not members of the forum (for example some parts of Nepal, India, Pakistan or South America), nor have they applied for membership. The forum has not invited them to join and has not sought to extend its areas beyond the northern hemisphere.
The rules of procedure determine the rights of member regions (membership I). A member is entitled
To attend all meetings and sponsored events of the forum;
To participate in project working groups, conduct and host project activities as agreed to by members;
To receive various publications of the forum;
To receive information from the secretariat and associate secretariats on projects and issues of concern to particular members;
To participate in open meetings and events of the United Nations (UN) as part of the forum's official delegation;
To participate in the Arctic Council's (AC) projects and activities as an observer. Attend AC meetings as part of the forum's official delegation;
To vote in creating and approving forum policy statements, bylaws amendments, supporting priority projects and taking any and all other actions necessary to operate the forum (NF 2008b: section 3.2).
Over the years, new members have joined and some have left. The forum has adopted a flexible approach to withdrawal (NF 2008a). However, a member region has to pay its regular annual fee which the forum has fixed at 15,000 US dollars for a region of 100,000 population or more; in case of smaller population it is 5,000 US dollars although the BOG may change the amount in both cases on a biennial basis (NF 2008b: section 3.4). A member region may manage the fee from its local resources or ask (full or partly) its national government as a part of the regular allocation within its annual budget.
The board of governors may terminate the membership of an inactive member (that is in cases of non-payment of dues and of not contributing to cooperative initiatives) upon notification, with an option to resume membership upon payment of membership arrears (NF 2008b: section 3.6). Several founding members have withdrawn from the forum. In 2002, the forum adopted its current streamlined classes of memberships (NF 2002b): i) full regional government member (including Russian federal cities, and municipal governments where no regional structure exists); and ii) business partners (that is businesses, chambers of commerce, NGOs, and others with an interest to work in cooperation with the forum to achieve its goals).
At present, the membership I category comprises Nunavut and Yukon Territories and Quebec Province (Canada); Heilongjiang Province (China); City of Akureyri (Iceland); Hokkaido Prefecture (Japan); Gangwon Province (Republic of Korea); Chukotka Autonomous Okrug, Khanty Mansiysk Autonomous Okrug, Komi Republic, Sakha Republic (Yakutia), Vologda and Yamal-Nenets Autonomous Okrug (Russian Federation); and the state of Alaska (United States) (NF undated c). In addition to these members, the Province of Lapland (Finland), which had been continuing with the forum membership since the beginning up to 2010, is now somewhat ambiguous – neither has Lapland withdrawn the forum's membership nor the forum has terminated/suspended the membership. In fact, this has been resulted from Finnish interior regional administrative reform which has abolished the provincial government of Lapland. During this transitional period the everyday functions of the former government are currently taken care through three authorities (Regional State Administrative Agencies; Centres for Economic Development, Transport and the Environment; and the Regional Council of Lapland) as an interim basis. However, none of these three has taken up the forum membership to this date.
Membership II status is granted mainly to business partners with a significant role in the northern economy. Business partners include companies and associations such as chambers of commerce. Granting membership to business entities is a unique characteristic of the forum and an innovative idea in international cooperation. The first Northern Business Conference was held in 1999 in conjunction with the forum's fourth general assembly (NF 1999). Subsequently, the forum has hosted regular trade and business summits during its biennial meetings, a productive way for the regions to expose business and trade potential to each other. Like membership I, the forum has introduced annual dues (subject to change by the BOG) for its business partners which are based on three different categories: small business membership (50 employees or fewer) dues as ascertained 1,000 US dollars; while, for medium business (employees from 51 to 99) and northern forum sponsor (100 employees or more) the amounts are 5,000 US dollar and 10,000 US dollar respectively (NF 2008b: section 3.4).
At the present there are 22 business partners from four countries: they are Ded Moroz Tourism Company, EPL Diamond, Generations Fund of Khanty-Mansiysk, Khanty-Mansiysk Bank OSC, International Women's Expeditions, Makarov Clean Water JV, JSC Prognoz, Promtechnologya-Arktika, Tispa Diamond (Russia) Ltd., Uralsvyazinform OJSC, Yugoria State Insurance Company, Yugoria State Television & Radio Company of Kmao, Yugra Timber Holding, and Yugraavia Khanty-Mansiysk Airport from Russian Federation; Alaska Native Heritage Center, Alaska Sealife Center, Denali Commission, GIT Satellite LLC, and World Trade Center of Alaska from the USA; Ferguson Simek Clark International, and Rockford Lang International Consulting Inc. (RLICI) from Canada; and Kometos Oy from Finland (NF undated d).
Business partners are entitled to attend all the open meetings of the forum (NF 2008b: section 3.3). This provides them with the opportunity to meet regional government officials to discuss business and trade challenges and opportunities. They have the right to access the forum's databases, publications, and other resources, as well as to use the office of the forum secretariat when in Anchorage in conducting their business (NF 2008b: section 3.3). The idea of inclusion business groups in the forum serves the mutual interests of business community (expansion of business, getting relevant information, secretarial support, tax or visa related assistance etc) and local residents (job opportunities, economic development in the remote areas etc).
The membership rules have been amended over the years. For example, to meet functional requirements, an entity granted category II membership may change its status to category I. Initially, membership II status was extended to associations of municipalities in the absence of regional government level memberships. This was expanded to single municipalities when the forum amended its bylaws in order to grant membership to the municipality of Akureyri, Iceland, in 2001 (NF 2001b). In 2002, the City of Akureyri was granted the status of membership I (member region) (NF 2002a).
Initially, the forum had two additional membership levels, associate and advocate, both of which were non-voting but entitled to attend the general assembly, board of directors and regional coordinators meetings (NF 1993b). Associate membership was meant for business and corporate institutions and advocate membership for individuals, non-profit organisations, or NGOs with a demonstrated interest in relevant northern issues (NF 1996a). However, the forum did not use these membership categories.
Organisational structure of the Northern Forum
The forum comprises three primary decision making bodies: the Board of Governors, the Executive Committee and the Regional Coordinators Committee. A permanent secretariat manages day-to-day business. Its primary role is to provide continuing oversight, supervision and guidance to the executive director, the head of the secretariat (see below), concerning fiscal or policy matters of the secretariat, and other activities of the forum. Additional support is provided by the Northern Forum Advisory Council. The role of each of these operational entities is discussed in turn below.
Initially, the Board of Directors was the decision making body. In 2001, the forum changed the name to the Board of Governors (BOG) to reflect its high profile more accurately (NF 2001d). The BOG includes all member regions and exercises all the powers and authority granted by their national laws subject to any restrictions imposed by the forum's articles of incorporation and bylaws (NF 2008a: sections 4.1–4.2). Generally, the forum expects that the seat of each region be held by the top executive official of the region (for example governor, premier or chair) although plenary power may be delegated (NF 2008a: section 4.2). Usually, each governor serves a four year term on the BOG. If the status of the governor as senior government official changes, he/she shall be deemed to have resigned and his/her successor in the member region will serve out the remainder of the term until the next general assembly (NF 2008b: section 4.2). In addition to general governance, financial and public relations responsibilities, the BOG establishes and reviews strategic directions and sets institutional priorities (NF 2008b: section 4.1).
The General Assembly of the BOG (GA) includes all fully recognised members together with associate entities and business partners (NF 2008b: section 4.5). A GA is held every other year (NF 1991b: section 1.01). It can elect a seven person executive committee to represent all members between the GA meetings. An informal but structured meeting of the governors (or the senior executive officials), the governors summit, is a component of the GA (NF 2008b: section 4.5(3). Heads of the regions discuss policy issues and other strategic planning matters of concern. This informality is enhanced by the strict provision that only one staff member can accompany a governor during the summit (NF 2008b: section 4.5(3).
The BOG selects an executive committee (EXCOM) consisting of five members, one chair and four vice-chairs, representing each of the five regions (that is North America, Northern Europe excluding Russia, Northwest Russia, Northeast Russia, and Northern Asia excluding Russia) (NF 2008a: section 6.1).
The current EXCOM is an anomaly in that two co-chairs from North America (Nunavut and Yukon regions of Canada) were selected (NF 2009a). The EXCOM is to meet at least once every calendar year (NF 2008b: section 6.1). Its primary role is to provide continuing oversight, supervision, and guidance to the executive director concerning fiscal and policy matters of the secretariat, and other activities of the forum. It acts on behalf of the BOG to address issues requiring immediate attention that arise during interim periods between regular board meetings, including authorisation of changes in expenditures that affect the approved budget of the forum.
The Regional Coordinators Committee (RCC) is generally responsible for the implementation of forum declarations, work plans, projects and other activities directed by the BOG (NF 2008b: section 6.2). Delegates are chosen by each member of the BOG and a regional coordinator nominated by the chair region of the forum presides over the RCC (NF 2008a: section 6.2). The RCC provides recommendations to the BOG or the EXCOM on the work and performance of the secretariat and of the executive director and guidance to the latter concerning issues that might be brought before the EXCOM and/or the BOG.
Prior to 2006, the RCC met in alternate years; since then it has convened yearly in person or through telecommunications (as was the case in 2009). The established custom and practice is that an RCC meeting is convened roughly three months before each BOG meeting because its proposals need to be approved by the BOG (NF 2008b: section 6.2).
Since its inception, the main secretariat has been located in Anchorage, Alaska; a satellite office is located in Moscow, Russia. The secretariat is headed by an executive director chosen by the BOG and serves as the president of the forum. The main tasks of the secretariat are administering daily operations of the forum, including planning and facilitation of the biennial GA and other executive level meetings, fund raising, information exchange and dissemination, and project coordination (NF 2008b: section 1.3). There are also other staff tasked for different administrative or public relations activities including project management specialists and regional representatives from member regions (NF undated b). The deputy director (NF 2008b: section 5.8) and secretary/treasurer (NF 2008b: section 5.9) are examples. The deputy director exercises the power and functions of the executive director in the absence of or on the request of the executive director; and the BOG may keep this position vacant as desired (NF 2008b: section 5.8). Then, the secretary/treasurer is tasked for maintaining financial matters including preparing a biennial audit that contains all the income and expenses to be submitted to the EXCOM and BOG (NF 2008b: section 5.9). In addition to this biennial report, the duties of secretary/treasurer and/or the executive director also include the preparation for the BOG, EXCOM, RCC of an annual financial report that includes current financial situation (membership dues, payments) on basis of which the EXCOM and RCC approve the forum's annual budget (with necessary changes in expenditure or fundraising efforts) (NF 2008b: section 8.2).
Established under the rules of procedure (NF 2008b: section 6.3) and the bylaws (NF 2008a: section 6.3), the Northern Forum Advisory Council comprises past chairs of the forum. Established at the fifth biennial GA in 2001 (NF 2001c), the advisory council provides strategic direction to the BOG and EXCOM, helps develop a long term vision, facilitates the forum's financial stability, and other functions as defined by the BOG (NF 2008a: section 6.3 and NF 2001c). The council is also expected to promote the forum in the inter-regional and international arenas (NF 2008a: section 6.3). Ironically, although the forum is prepared to accept the vision, persistence and wisdom of this group of experts with real knowledge and practical experience in meeting the needs and expectations of northern peoples, it does not assume responsibility for the costs associated with their participation (NF 2001c).
Operational systems of the Northern Forum
The operations of the forum, that is, its activities in support of its goals, are undertaken through various prioritised projects. The rules of procedure suggest establishing a working group for each priority project composed of the chair and project participants from regions participating in that project. The chair is chosen by the members of the working group for the purposes of planning, implementation, and reporting: each working group works closely with the secretariat and the RCC to meet annual reporting and financial requirements; a working group is independent and can seek assistance from special advisors, experts or observers and prepare its own meeting schedule and project implementation timeline (NF 2008b: section 7.2).
The statement of intent established the first working group, which had the task of preparing the list of priorities for action emanating from the governors’ summit (Governors’ Summit 1990: clause III (F)). Working groups established to date include those concerned with brown bears, flood management, healthy lifestyles, telemedicine, infectious diseases surveillance (with the Arctic Council), and the Association of Northern Zoos. Some working groups are well structured (for example the brown bear working group) with long time members who work together continuously. Others are less formal, and, at most, meet once a year. However, for a project to be approved by the BOG, there has to be a group of people working on it; a project cannot be something proposed by an individual with the hope that other regions will follow, as it has been too often the case in the past (N. Novik, personal communication, 19 January 2011). Some working groups, such as the northern tourism working group, are inactive, possibly because the regional coordinators have no interest in their subject matter or because they do not know how to find people to participate in the working group (N. Novik, personal communication, 19 January 2011). However, there is the possibility that such working groups could be reactivated.
Approving priority projects requires consensus agreement among members present at the GA (NF 1991b: article X(1.01)). This is evidence of the importance accorded each member regarding development projects. Clause V of the 1990 statement of intent (Governors’ Summit Reference Governors’1990) sets out specific areas for forum activities:
Joint efforts to establish communication networks among northern peoples, with special emphasis on television;
Shared monitoring of atmospheric pollution (for example nitrogen and sulphur oxides);
Joint research on oil pollution in northern seas;
Interaction among the peoples of the north;
Opportunities to open the northern sea route to international shipping;
Action to ensure that best available environmental technology is employed and properly financed;
Joint research on hazardous waste disposal and the safe clean up of contaminants;
International dissemination of knowledge about the special situation of northern hunting societies;
Collaboration among the northern regions on oil spill prevention and response;
Joint efforts to protect the cultures of northern peoples;
Improvement of northern and Arctic environmental monitoring and creation of regional data systems for ecological and meteorological influences on northern regions; and
Monitoring of northern peoples’ adaptation to industrial development.
In practice, the forum has introduced number of programme areas that cut across issues and specific themes. For instance, society and culture programmes can deal with healthy lifestyle, telemedicine, and infectious diseases; a sustainable development programme could deal with northern tourism, rural development, northern building and technologies.
Legal elements in the Northern Forum
The leaders of the northern regions have created legal tools to govern the internal operations of the forum as well as its external relations. However, it is difficult to determine the legal authority of these instruments under international law and the extent to which they create legally binding obligations on forum members. These include each of the forum operating instruments (that is bylaws and rules of procedure) and founding instruments (that is statement of intent, Northern Forum agreement, articles of incorporation, and charter (Governors’ Summit Reference Governors’1990; NF 1991d, 1991a, 1991b)), as well as more broadly-based instruments such as declarations and resolutions, as well as the Rovaniemi code of conduct (NF 1994a).
The bylaws and rules of procedure for the legal basis for operation rules to meet the objectives set out in the Northern Forum charter (NF 1991b: article XIII (1.00); NF 2008a: section 2.4; NF 2009b). The rules of procedure expand the provisions in the bylaws and set out the functional management methods of the organisation on a day-to-day basis (NF 2009b).
The statement of intent (Governors’ Summit Reference Governors’1990), signed in September 1990 by nineteen governors of northern regions, supporting the establishment of a permanent entity (NF 1991a: article II (9.00)), could be seen as a milestone document. The leaders agreed to some commitments in principle with clear guidelines that could be loosely compared to fundamental principles set out in the constitution of a modern state (Governors’ Summit Reference Governors’1990; preamble).
This instrument identifies common characteristics in the northern regions, in particular environmental protection, economic well being, and the appropriate role of regional government in decision making. It describes regional priorities for northern region policy makers, namely,
Coordination and cooperation of the management of migratory species of fish, waterfowl and marine and terrestrial mammals,
Transboundary air and water pollution,
Maintaining the unique culture, economy and livelihood of indigenous peoples living in the remote regions in the north,
Managing shared natural resources and ecosystems (Governors' Summit 1990: preamble).
The statement of intent was an agreement (in principle) to establish the forum as a mechanism for regular interaction among northern leaders in their official capacity as representatives of northern publics to deal with such issues (Governors’ Summit 1990: article I).
Following the adoption of the agreement in 1991 (NF 1991d), the structural components of the forum, and their functional parameters, were put in place, namely the GA, permanent secretariat, and the Board of Directors, subsequently BOG. In addition, the agreement provided the basis for operational instruments and procedures, for example, the bylaws and charter as well as the convening of the founding meeting to establish the forum formally. The consensus demonstrated in the agreement is evidence of the strong unity among the governors to work together on northern issues of common concern and to adopt obligatory provisions to undertake these activities.
The forum articles of incorporation (NF 1991a) describe it as a non-profit corporation and were adopted on 8 November 1991 and registered before judicial authority in Alaska. However, the articles do not clarify whether the forum is an international forum of sub-national governments in the northern region.
The purposes of the forum, as described in the articles, are for the charitable, scientific, literary and educational purposes within the meaning of specific provisions of U.S. national law (United States 1986: section 501(C) (3)), including convening of conferences (NF 1991a: article III). However, the instrument does not define the geographic scope of the forum. The incorporators, representatives from northern regions, assumed the role in a personal, not official, capacity, and established the Board of Directors. The articles include provisions to protect directors from assuming liability for claims against the forum (NF 1991a: articles VIII-X).
The charter (NF 1991b), in the model of a treaty with a preamble and articles, sets out the purposes, principles, powers and functions of the forum. It calls on sub-national governments (states, provinces, territories, counties, prefectures and autonomous regions) to address common challenges faced by the inhabitants of the regions, in particular economic development and protection of natural environment and traditional cultures of indigenous peoples (NF 1991b: preamble). The purposes establish its advisory character, for example, ‘to propose a framework for specific action in the resolution of problems addressed by the organization’ and ‘to act as an advisory body to form official statements of position with respect to issues of northern concern’ (NF 1991b: article III (1.03–1.04)). Its functional character is established in provisions such as the call on members ‘to initiate, coordinate, and effectuate positive changes solutions to problems addressed by the organization’ (NF 1991b: article III (1.05)). The advisory and functional character established in the charter do not, however, create binding obligations on the part of participating governments, merely an invitation to participate in mutually benefiting collaborative action. Thus the charter can be seen as a soft law international instrument.
As discussed above, the forum has adopted biennial declarations that set out commitments to current activities and look to future activities, together with a few statements on principles or areas of concern. These declarations denote some promises publicly made by the BOG and often include references to its international and commercial partners. These forward looking statements consider directions for future activities based on the spirit of international good will and cooperation. They have been prepared with soft approaches, using words like ‘recognise’, ‘believe’, ‘pledge to promote’, ‘support’, ‘commit to cooperate’, and so on. This type of wording does not create any strong commitment generating legal obligations, although it may create a political or moral commitment on part of the regional governments.
In contrast to declarations, resolutions of the forum are very formal in terms of decisions making. As set out in the bylaws, ‘Resolutions are prepared for a specific issue and presented by the Executive Director’ (NF 2008a: section 2.6(3)). Resolutions are generally developed by the regional coordinators; then reviewed by the EXCOM; and finally approved by the BOG (NF 2008a: section 2.6(2)). Moreover, a two-thirds majority vote of the BOG quorum is required for approval of a resolution (NF 2008a: section 2.6(3)). To date, the forum has adopted 145 resolutions concerning, inter alia, bylaws and rules of procedure amendments, membership rules, rules concerning appointment of officials, establishment of committees and other subsidiary bodies, allocation of annual fees and other financial matters, and project approval.
The 1994 Rovaniemi code of conduct (NF 1994a) represents a further ‘soft’ measure endorsed by the forum. The code encourages national and regional governments, along with businesses, to contribute to the development of the north, a region of abundant natural resources. Its main aim is to introduce effective business policies and appropriate regulations that will benefit the inhabitants of the region with respect to property rights (for example land ownership and use issues) and environmental protection and sustainable development (for example environmental safety, assessing environmental liabilities and protecting lifestyle of the communalities) (NF 1994a: Background). However, most of the instrument is full of salutary advice. The code seeks to ensure the rights of investors through recommendations on ‘investment strategies’ directed to local, regional and state level administrations, which could be seen as promising much in terms of local development:
To reduce uncertainties concerning the conditions governing the rights of investors, special efforts should be made by local, regional and state authorities to: i. ensure the rights of investors (e.g., the ownership and integrity of property, and the enforcement of contracts); ii. stimulate and assist investment activities through clearly defined rules and regulations (including stable taxation policies); iii. clearly specify the rules and guidelines regulating environmental safety, environmental liability and the rights of local populations, including indigenous peoples, in areas under development; and iv. take an constructive approach towards harmonizing the above mentioned policies with neighboring countries. (NF 1994a: section 1).
The code introduced the concept of ‘common environmental domain’ concerning the relationship between property stewardship and ownership with the aim of protecting the region from activities that deplete or damage environmental integrity (including water, air and land) (NF 1994a: section 2). This concept is based on the congenial coexistence of people and nature, a precondition of human life in the harsh and adverse conditions of the north (NF 1994a: section 2; Heinämäki Reference Heinämäki2010).
The code also argues for the rights of local peoples, primarily indigenous communities: improvement of living conditions; respect for the cultural and traditional values; their basic means of subsistence, and their rights as recognised by national, regional and international norms and rules; participating in the economic benefits including training and educational programmes, employment and in resource development decisions; utilisation of local indigenous knowledge to the decision making process; adherence to the international human rights instruments; importance of the culture and values for their traditional relationship to resource use of land and water, and so on (NF 1994a: section 6). It calls for infrastructure development that takes into account ‘the needs, values and decision-making rights of each community concerned, and [is] in harmony with the internal development policy of the region in question’ (NF 1994a: section 4) with a focus on environmental protection (NF 1994a: section 5).
Although the code introduces these concepts and principles, arguing for the rights of investors, development of local peoples and protection of the environment, it does not create any legally binding obligations or real commitments on the part of forum members. Rather the code offers guidelines that serve the goals of the forum.
The legal status of the Northern Forum
There was a long debate among the negotiators regarding the nature of the forum during its establishment, in particular whether it should be considered as a private or public entity. To the surprise of some delegates, the 1991 conference decided to establish a private organisation to encourage cooperation with government support (NF 1991c: 27). Two years later, it received the status of non-profit corporation (NF 1993a). At the same time, the charter introduced the forum as an ‘international organization’ and ‘non-governmental organization’ (NF 1991b: article II). This multidimensional identity presents a somewhat challenging approach to scholars seeking to determine the legal status of the forum.
The forum introduces itself as ‘corporation’ and ‘organization’, among other expressions, each of which have a different meaning under international law (NF 2008b: section 1.1). An intergovernmental organisation created by a treaty is a formal body with legal personality under international law, with legal rights and obligations and certain immunities; a corporation denotes a legal person under national law. According to its charter, the forum is both an international organisation and a non-governmental organisation (NF 1991b: preamble, article II). It defines ‘international organization’ as global orientation, with a northern emphasis, and ‘non-governmental organization’ as recognised and defined by the United Nations (NF 1991b: article II). This complex character may surprise some international lawyers although it does not create any complications in terms of the forum's ability to serve the practical needs of the residents of the northern regions. It is worth noting that in the last 20 years the forum has not faced any legal question in the USA or abroad.
The forum manages its internal functions in a systematic manner that is similar to that of an international organisation. The members follow its operating rules, guidelines, resolutions, and other internal agreements. The forum is very formal in convening meetings and all meetings follow strict procedural rules (for example notice of meetings is served in the required manner and time). Nonetheless, the forum's legal personality is defined by U.S. national law, that is, the Alaska Nonprofit Corporation Act (Alaska Reference Alaska2009) and Section 501 (C) (3) of the Internal Revenue Code of 1986 (United States 1986), which is applicable to incorporated non-profit organisations, and the forum enjoys the privileges and immunities conferred by domestic law in Alaska. The forum has introduced necessary changes to adapt to changes in both federal and state law. Recently, it has amended its bylaws and the rules of procedure in order to bring the utmost transparency to its activities, including making official minutes of the BOG meetings and annual tax statements publicly available (NF 2009b). Thus, the forum conducts its affairs in accordance with the laws of the state in which it is registered, in addition to its self-made instruments, like a classical international organisation.
Over time, the instruments produced by the forum have gained some authority. For instance, the acceptance of punitive actions by the members in relation to failure to pay annual fees and other dues (that is falling into the inactive membership category, which includes lose of voting rights, and financial and secretarial support) (NF 2008b: section 3.6).
Since its inception, the forum has tried to be a formal body and has established a clear structure with robust decision making organs (EXCOM and BOG). At the same time, it has maintained its regional focus. For example, since 1991 plenary meetings of the GA have rotated between cities of member states (NF 1991c: 35). The BOG created a permanent flag for the forum, which provides a common regional image and integrity (NF 1994b). Personnel engaged in forum activities enjoy legal immunity to some extent while performing official duties (for instance, any members in BOG is not personally liable to the forum unless any exception is made by Alaska State or US federal laws; or no officials could be claimed responsible for any debts of the forum (NF 2008a: section 8.6)). That is loosely comparable to the privileges extended to employees of an international organisation recognised under international law.
In addition to its formal rules and regulations, the forum members have established informal internal practices, that is, those outside the written rules. For instance, agenda items of a BOG meeting are generally set in a RCC meeting by agreement among the regional coordinators.
Phone or video conference attendance during face-to-face meetings is possible if no objection is made by another member (NF 1991b: section 1.05). Such practical measures are both timely and realistic and encourage the participation of vulnerable members (that is members experiencing financial or other limitations in attending meetings physically) in the decision making process of the forum. These types of practices could be seen as evidence of sub-national governments’ ability to create regular practices; over the long term, such practices generate customary value.
The forum has sought to encourage indigenous peoples as active participants in northern economies (NF 2009c: D.3), to protect their traditional cultures (NF 2003b: section 3), and to take part in decision making processes related to their community's concerns (NF 1994a: sections 4–6). These are significant initiatives that would recognise their right to self determination although any special position for indigenous peoples within the forum has not yet been proposed.
The forum cooperates with many international organisations and programmes promoting sustainable development, environmental conservation and economic development. These include UNDP, UNEP, UNESCO, UNFCCC, the Arctic Council, Barents Regional Council, WHO) etc (NF 2009c: section D.6). The forum has observer status at the Arctic Council and is a member of its sustainable development working group. It was recognized as a NGO (in early 1994) by the UN, which allows it to take part in certain UN activities. For instance, the forum is active in UNDP sponsored UN-Regions Partnerships – Towards Carbon Neutral and Climate Change Resilient Territories – part of a multiphase programme which objectives include to support national governments decentralization by assisting regional and provincial governments in developing and implementing their own development strategies in partnership with all stakeholders (UNDP undated). The forum has also partnership with the Network of Regional Governments for Sustainable Development (nrg4SD) and the Forum of Global Associations of Regions (FOGAR). In 2007, it concluded a memorandum of understanding (MOU) with the UNDP (UNDP and NF 2007) and a letter of agreement jointly with UNDP and FOGAR, establishing, inter alia, a social communication network (UNDP, NF and FOGAR 2007). These involvements in international fora provide the forum with the opportunity to be a partner in the global community and to raise regional issues in the international arena, that is, the issues facing the inhabitants living in northern regions.
The forum could be seen as being conservative in terms of publicising produced documents since a large number of documents on its website are password protected and only accessible to members. There is also some inconsistency between documents (for example the charter (NF 1991b) refers to article II of bylaws for regulations relating to membership under section 1.00 of the charter but membership was dealt in Article III of the bylaws (NF 2008a)). Some instruments adopted through regular procedures have not been put into practice or repealed and remain on the books (for example the provisions relating to associate membership and advocate membership in resolutions 12, 41 and 42 (NF 1993b, 1996a, 1996b)). One may criticise the forum for such mistakes, superficial documentation, or non-application of an instrument. However, these issues do not appear to be a dilemma for a soft-law body since they do not harm any member or associated entity.
The lack of a treaty together with the other shortcomings mentioned above, suggest that the forum is best characterized as a soft-law body (Hasanat Reference Hasanat2007). Generally, however, an important element of soft-law cooperation is the participation by national governments, which is absent in this case. However, the sub-national level representatives engaged in the forum have a mandate from the inhabitants of their respective regions, which demonstrates indirect democratic practice within the forum. Sub-national governments handling matters related to issues crossing national borders, which are usually taken care of by the national government, in particular foreign ministries, also does not appear to be ultra vires because in most cases either the national government has delegated power to the sub-national authority or has not objected to the practice for a long period of time. For instance, in the 1980s, when the provincial government of Lapland (Finland) initiated a cooperation agreement with the Murmansk Oblast (Russia), the central government of Finland exchanged a few letters concerning how to deal with a regional government of a foreign state. Ultimately the Lapland Province received permission from the national government to conclude the agreement. (H. Viranto, personal communication, 21 February 2011). Then again, national governments have provided with support to the sub-national governments as a contribution to societal development that serves the community interest at the regional level (for example the Finnish Ministry for Foreign Affairs recently allocated funds to the Arctic Centre, a research institute focusing on to Arctic issues, located in Rovaniemi Finland, to help the ministry establish bilateral cooperative links between Lapland and northwest Russia).
The forum seeks to strengthen this firm relationship between national and regional governments. For instance, the 1993 Tromsø declaration stated: ‘We believe that national governments and regional governments should work together to improve decision making on environmental and development issues by strengthening the power of regional governments’ (NF 1993c: national and regional government relationships). While the forum has further recognised the jurisdiction of central governments over many issues of concern (NF 1995: section 4.D), there has also been an emphasis on providing information on the forum and its activities to appropriate central government to encourage closer cooperation (NF 1995: section 4.D). Moreover, it has asked central governments to help raise awareness of issues of concern to northern regions and to address other relevant issues (NF 1999: commitment to current activities of the Northern Forum).
The forum is clearly an innovative entity in international cooperation, encompassing characteristics of different types of entities, international organisations, NGOs, and corporations controlled under U.S. national laws. It could be described, as a ‘not-for-profit, membership-supported international organization’ (Langlais Reference Langlais2000: 23). At the same time, it strictly follows self-made rules while also appearing to be relaxed and less formal, characteristics which suggest its identity is as a soft-law body. The non-participation of national governments directly in the forum further suggest that even a soft law characterization is too strong. Perhaps the forum is best characterised as a hybrid soft-law body.
The Northern Forum's impact on international law
The complex and unique characteristics of the forum have had diverse impacts on international law. On the one hand, it has contributed to the development of public international law; on the other hand, it has posed a few challenges to international law, in particular to classical international law. The forum's contribution to international law is both these regards is analysed below.
The forum's inputs to international law
The forum has introduced new concepts as well as promoting established ideas in international environmental law. It has explained standard concepts in innovative ways that better serve the challenges faced by the inhabitants of the north due to extreme geographic or climatic situations. It has established a few customs and practiced them since its inception. Moreover, it strictly follows procedural formalities with respect to specific issues.
Two concepts introduced by the forum, and its interpretation of another international concept, contribute to the development of international environmental law and in meeting these challenges: ‘northern regions’ and ‘common environmental domain’. The concept of northern regions has been fashioned is such an innovative way that it may include regions from different parts of the world; the common environmental domain concept offers a useful tool under international environmental law to counter environmental degradation. Likewise it has adopted an inclusive approach to the concept of sustainable development (NF 1994a: section 5):
Sustainable development includes the following concepts: A. Taking a long-term view which takes into consideration the interests of future generations, the co-existence of various industries and the health of local populations; B. Adherence to environmental standards which prevent pollution and the degradation of the land and resources; C. Accountability for environmental damage under which those who generate pollution pay for its consequences; D. Non-renewable resource development should be accomplished utilizing Best Management Practices to avoid damaging renewable resources. Reclamation of developed areas should be part of each development plan. E. A Precautionary approach to all development activities in the North, developing and using the best scientific information and technology available. This approach includes analysis of reasonably foreseeable impacts of development [Original emphasis].
Thus, the forum has contributed to the conceptual development of international law concerning environmental protection of certain regions and the well-being of their communities.
Challenges posed by the forum to international law
The UNDP and the forum concluded a memorandum of understanding which recognises that ‘. . . partnerships between regional governments can achieve greater results than working at the national level . . .’ (UNDP and NF 2007: preamble). This phrase, however, opens up a sensitive question in international law, namely, states’ ability to deal with global challenges, particularly where states are the key player. The UNDP, finds regional cooperation more effective compared to traditional intergovernmental organisations and argues for the granting of ‘meaningful authority’ to sub-national governments. This raises two questions: What does ‘meaningful’ denote and ‘authority’ in which context? Searching for the answers to these questions is likely to show the basic limitations of classical international law in handling modern challenges posed by the expanding concept of ‘legal personality’ in international law.
The Rovaniemi code further poses a challenge to traditional international law by including the following statement: ‘These guidelines are not intended to compromise in any way national, regional or local sovereignty’ (NF 1994a: section 1). This could be seen as rethinking the concept of strict state sovereignty established under classical international law and recognising the concept of ‘limited sovereignty’ (Lapidoth Reference Lapidoth1992: 325–346) or ‘responsible sovereignty’ (Birnie Reference Birnie, Hurrell and Kingsbury1992: 84). These concepts of sovereignty were introduced as alternatives to ‘strict sovereignty’ in order to address emerging global challenges in environmental protection and protecting the rights of vulnerable communities (Chayes and Chayes Reference Chayes and Chayes1995: 271–286). In contrast, others may hesitate to recognize the forum's authority and would question whether it has any power to make this type of statement. There are, however, other similar concepts in the scholarly literature such as ‘ecological sovereignty’ (Conca Reference Conca, Conca and Dabelko2004: 72–79), ‘Arctic sovereignty’ (Inuit Leaders 2008), and ‘polar sovereignty’ (Jabour and Weber Reference Jabour and Weber2008: 27–40). The basis of these concepts is considering sovereignty from the view point of ‘fact’ (that is intrinsic to states) and ‘norm’ (that is defined by international rules) in which norms facilitate the fact (Jackson Reference Jackson1990: 50–78). However, there is much doubt about the capacity of the forum to convince states in advancing its innovative concepts, which a group of scholars has identified as a major shortcoming of soft-law bodies (Levy and others Reference Levy, Keohane, Haas, Hass, Keohane and Levy1993: 415–417).
Conclusion
The Northern Forum was established through a lengthy process that focused on sub-national governmental cooperation across national boundaries based on mutual interests in the northern regions. It has built relationships with international entities such as the Arctic Council and the United Nations to make the voice of northerners better heard on the global agenda. Drawing on the experience of existing cooperative institutions, the founders established an entity with a unique characteristic under international law and one that has introduced new concepts and offered innovative approaches to some existing concepts in international law.
Many of the innovations of the forum can be seen as positive steps in advancing regional cooperation in the north, albeit not without some caveats. It has introduced a new concept, northern regions, by setting criteria that seems rather ambiguous in terms of specifying geographical location compared to the definition established by other entities such as the Barents Euro-Arctic Council. Others might argue though that the forum could be seen as being progressive in including regions from many parts of the world. The record of the forum in drawing attention of a number of business organisations to the region, and establishing relationships with international bodies and taking part in many international projects also serves the interest of local peoples. Further, it has considered ‘indigenous culture’ as one of the principal criteria in defining the northern regions. However, non-adoption of any special position in regard to indigenous peoples in terms of decision making or compliance with its mandates (as is the case in the Arctic Council) provides the impression that the forum is not serious about integrating indigenous peoples participating entities under its auspices.
It has sensibly adopted modern technology, together with other innovations, in this age of globalization and is reaping the benefits. For example, the forum had increased member regions’ participation through the use of teleconference technology. It makes decisions with the support of two third majority votes rather than a consensus approach (which is the practice of most other soft-law entities). This development in soft-law cooperation decision making reduces vulnerability to inaction due to objections by single member. The wide range of participants (that is both government and business), have brought new perspectives to resolving regional problems. The forum has participated as a partner of global development cooperation through its relationships with many international actors focused on raising global awareness of northern and Arctic issues (NF 2007: section E.2). As noted by the UNDP, sub-national level cooperation is often more effective than national government level cooperation in achieving many goals without compromising the ability of national governments to work together in other areas of mutual benefit.
The norms created by the forum also have clear consequences and its members and business partners and pose several challenges to classical international law. The norms are observed as strict, flexible and optional in terms of compliance and also generate different types of obligations. It is thus no surprise that the school of thought called global administrative law (GAL) has gained prominence among international lawyers (Krisch and Kingsbury Reference Krisch and Kingsbury2006: 1–13). Its particular insight is that the starting point is not to begin by examining the formal status of a legal instrument but rather by analysing it in terms of its functional attributes. If there is an international governance regime that falls outside of the concepts of international law, it is important to focus on attributes such as accountability and legitimacy. The concept of hybrid soft-law body fairly serves as working definition for the forum. However, it requires more acceptances among international lawyers and further in-depth research to develop its parameters as a distinct concept under (modern) international law.
The forum holds an innovative legal status compared to other existing international cooperative initiatives in the Arctic. The set of self-created instruments effectively promote regional development and warrant international recognition. Much as Migdal has set out in his notion of state capacity, the forum has adopted a unique approach to penetration of civil society in northern regions and the use of its resources for defined state purposes (Migdal 1993: 3–43). While some international lawyers will not see any legal consequences from the adoption of certain forum instruments (for example UNDP and NF 2007; code of conduct (NF 1994a)), these instruments have proved potential in the development of specific communities or regions irrespective of the involvement of states. The activities of sub-national governments within the forum can be seen as exercising delegated power of national governments, which have added value because of their uninterrupted practice over a long period of time. The forum effectively works as a complementary body to national governments in regard to regional development that neither violates any order of a national government nor denies the authority of a national government. Thus, the forum offers a unique approach to international cooperation at a sub-national level and contributes to the well being of present and future generations of northerners. The forum also offers unique insights into the creation of new norms under international administrative and environmental law.
Acknowledgement
The author expresses his gratitude to Hannu Viranto, former representative of Lapland to the forum (1996–2010), and the secretariat of the forum for their support in providing data and comments which facilitated completion of this study. The views and final content remain the sole responsibility of the author.
