1. Introduction
Pursuant to the UN Convention on the Law of the SeaFootnote 1 both coastal states and the United Nations Commission on the Limits of the Continental Shelf (the Commission) are authorized to interpret Article 76 and apply it to determine the limits of a state's continental shelf. The authority of a coastal state derives from its entitlement to set the limits of its own continental shelf.Footnote 2 The authority of the Commission derives from the requirement that a state's limits must be established on the basis of Commission recommendations in order to be final and binding.Footnote 3 The problem, however, with conferring authority to interpret, and thereby define what constitutes compliance on multiple entities, is that the Convention recognizes multiple sources of valid legal interpretation – but no settled mechanism for ascertaining which will govern. As such, it is possible that states will act at odds with each other or with the Commission and still be construed as complying with international law. Various regional conflicts related to Commission authority attest to the ongoing relevance of this issue for all state parties.Footnote 4
In so far as claims in the Arctic may be the product of extensive scientific research but still be contested, they perfectly illustrate the interpretive problems created by Article 76 and its effect on determining compliance with international law. Delineation has proven to be an interpretative task for Arctic states as well as for the Commission because Article 76 implicates different scientific theories of shelf measurement.Footnote 5 For example, the terms, ‘oceanic ridge’, ‘submarine ridge’, and ‘submarine elevation’ are not defined in the Convention and have been interpreted differently.Footnote 6 Interpretive differences have also arisen over issues such as how a coastal state calculates the fixed points by which to measure the 2,500 metre isobath,Footnote 7 how to connect a fixed point where part of the coastal state's shelf extends to the 200 nautical miles and part extends beyond,Footnote 8 and how the thickness of sedimentary rocks, referred to in Article 76(4)(a)(i) should be interpreted where the topography is irregular.Footnote 9 These issues and othersFootnote 10 have meant that maritime delimitation in the Arctic remains contested on many fronts.Footnote 11
Despite these differences, the Commission on the Limits of the Continental Shelf is expected to play an essential role in delineating the rights of states to seabed resources in the Arctic Ocean. Many predict delineation of the limits of the extended continental shelf in the Arctic to be one of those rare instances in international relations: where states will act as if their legal and sovereign rights can be made certain by reference to international law outlined in Article 76 of the Convention and interpreted by the Commission.Footnote 12 Each of the Arctic States with extended shelves – Canada, Norway, Russia, the United States, and Denmark (Greenland) – has been actively mapping the Arctic Ocean in order to delineate their respective rights in accordance with Article 76 and, apart from the United States, has submitted to the Commission.Footnote 13 They collectively issued the Ilulissat Declaration of 29 May 2008 in which they stated ‘that an extensive international legal framework applies to the Arctic Ocean’ and that ‘the law of the sea provides for important rights and obligations concerning the delineation of the outer limits of the continental shelf’.Footnote 14 Moreover, these statements have been strengthened by public pledges of policy makers to peacefully resolve their disputes in accordance with Article 76.Footnote 15 In short, against a background of potential disputation, it is predicted that Arctic states will adopt a markedly dutiful approach to the determination of their rights through law as submitted to the Commission.Footnote 16
The legal literature has generally mirrored political expectations that the Commission can close off or narrow disputes in the Arctic through its determination of compliance.Footnote 17 Positivist in its orientation, legal scholarship on shelf delineation in the Arctic mostly focuses on the impacts of particular interpretations for state parties. This literature is mindful of non-legal influences on treaty interpretation, especially science, but generally in so far as the provision of technical data will permit states to prove that the components of the seabed reflect treaty terms.Footnote 18 For example, Oude Elferink, Elizabeth Ridell-Dixon, Ted McDorman, and Ron MacNab each reject the characterization of Arctic states scrambling for resources, instead pointing to the orderly collection of data needed to prove claims in law.Footnote 19 While these scholars may or may not agree between themselves on the scope or effect of Commission authority, that authority is generally presumed to operate in accordance with a rationalist construct in which science is conducted and used for the purposes of containing or closing legal disputes about jurisdiction and sovereign rights.Footnote 20
When, however, treaty interpretations and the science that supports those interpretations instead generate conflict, positivist accounts of Commission authority may be of limited explanatory value. This is because, when science is uncertain in an account of authority that relies on scientific agreement, law can cease to have determinative or predictive value. Fear that significant disputes will arise should the Commission not endorse the Lomonosov Ridge as a natural prolongation of Russia, Canada, or Denmark (or endorse all three), illustrates this possibility.Footnote 21 Should these Arctic states claim competing rights based on differing scientific arguments, interpretive uncertainties are likely to justify objections to conceptions of compliance forwarded by the Commission and fuel legal disputes rather than settle them.Footnote 22 Naturally, most legal scholars anticipate disputes over the interpretation and application of law but, absent the legal authority of the Commission to resolve them, relegate settlement to the realm of politics.Footnote 23 While providing analytical interpretations of treaty language, these accounts fail to explain how state interests are mobilized in relation to international law when those interests diverge and can therefore fail to theorize how law obtains meaning in the broader social context of international relations. Analytical jurisprudence on the meaning of text remains necessary but ultimately not sufficient for determining effect.
Building on scholarship that has identified the role of scientific discourse in global governance,Footnote 24 and more specific observations of scientific discourse in Arctic shelf delineation,Footnote 25 the authors found Commission authority partly in law and partly in the transnational technocratic regime that governs shelf science.Footnote 26 This article therefore echoes the concern of legal process scholars, such as Øystein, Suarez, and Cavnar, that depictions of the Commission as a legally-constituted body insufficiently explain its authority. Instead, much like these scholars, the authors look to how the Commission's administrative, procedural, or soft law powers are used to bolster and affect compliance.
Here, however, the authors adopt a constructivist approach to better describe how Arctic states address the uncertainty of Article 76 through a reliance on scientific consensus to provisionally close off debates about treaty interpretation. Using constructivism to obtain an empirical account of law, the authors look to the discursive practices of science to show that the Commission's regulatory authority is constantly affirmed and reaffirmed through its interaction with Arctic states as producers, consumers, and verifiers of science.
While the hard law or soft law authority of the Commission can be attributed in part to the language of the Convention, the authors argue that its authority is also sourced to the way its approach to scientific verification and consensus-building correlates with the discourses of scientific shelf communities in both domestic and transnational contexts. In making this argument, the authors use an empirical approach to identifying the processes through which law operates but for the pragmatic purpose of identifying the efficacy of international law when there are interpretive differences.Footnote 27 By identifying how science is used to interpret international law but also how science is used to navigate conflicting interpretations, this article provides an explanatory account of how international law operates in action and begins to consider its pragmatic use for Arctic relations.
In Part II of the article, the authors introduce the law at issue in delineating the limits of the continental shelf. In this part, the authors identify that the Commission's legal authority is likely to be tenuous where scientific interpretation of the scientific data remains contested, leaving legal explanations of compliance under-theorized. In Part III the authors review the literature that has linked the relevance of scientific reasoning to international law and in Part IV demonstrate that the parties use co-operative research, dissemination, and publication to bolster their submissions to the Commission. The effect for coastal states is to incentivize the use of the Commission's own discursive practices to reach agreement or consensus prior to submission and thereby increase the potential to have their desired interpretations adopted.
2. The UN Convention on the Law of the Sea
2.1. Textual uncertainty
The central function of the United Nations Convention of the Law of the Sea is to establish a number of maritime zones and define the rights and responsibilities of nations in their use of the world's oceans. One of those zones is the extended continental shelf. The Convention confers all coastal states with a continental shelf of 200 nautical miles, irrespective of the physiographic width of each state's shelf,Footnote 28 and confers an extended continental shelf beyond 200 nautical miles where the shelf is a natural prolongation of the state's land territory.Footnote 29 Pursuant to Article 76(4), the outer limits of the shelf will depend on either: (i) a line drawn by reference to points at which the thickness of the sediment is at least one per cent of the shortest distance to the foot of the continental slope; or (ii) a line drawn by reference to points no more than sixty nautical miles from the foot of the slope.Footnote 30
Knowing where the limits of a coastal state's continental shelf are located has several implications for the rights and responsibilities of coastal states as well as other nation-states. Certainty allows coastal states to explore, plan, and license resource extraction and to exercise authority over activities permitted to non-coastal states on the shelf, such as marine scientific research.Footnote 31 While formally establishing the outer limits of the continental shelf is not a prerequisite for the exercise of state jurisdiction in the extended continental shelf,Footnote 32 the attraction of capital investment needed for resource development is dependent upon the certainty of sovereign rights. Moreover, the international community has an interest in the determination of the outer limits of the continental shelves of all coastal states, as anything beyond the extended continental shelf is the international seabed and managed by the International Seabed Authority.Footnote 33 Since the international seabed belongs to the common heritage of mankind, and confers future income on the international community, the determination of the outer limits is of the utmost interest to all nation-states.
Despite the seemingly legal nature of delineation, contention over interpretation in relation to the Arctic Ocean stems from the well-recognized problem that the Convention makes use of scientific terms in a legal context, which can depart significantly from accepted scientific definitions and terminology.Footnote 34 The legal complexity of determining the outer edges of the extended continental shelf is therefore partially due to the technical and definitional difficulties of determining its scientific requirements.Footnote 35 Yet, legal complexity is also ascribed to the dissonance between science and law. As Philip Symonds notes: ‘the concept of a legal continental shelf defined by a series of rules or formulae is quite distinct and different from the morphologically-defined continental shelf of a geographer’.Footnote 36
As a matter of law, indeterminacy in treaty text is dealt with in the Vienna Convention as interpretation. Interpretation of binding agreements rests upon the ‘ordinary meaning’ of the relevant terms, as supplemented by related documents and behaviour.Footnote 37 Where the ordinary meaning is ambiguous, the Vienna Convention permits the parties to also draw upon the preparatory work of the negotiators of the treaty and the circumstances of its conclusion or finalized text.Footnote 38 However, as may be imagined, treaty meaning often remains ambiguous and contested. For instance, differences often arise over how the legal terms (continental shelf; seabed; subsoil; submarine areas; natural prolongation; and continental margin) are to be characterized and established.Footnote 39 Differences in terms then manifest in the technical data asked of submitting states, and in their evaluation.
Interpretive questions regarding the Alpha-Mendeleev and Losomonov Ridges, for example, illustrate how different theories about the Arctic Ocean shelf compete and develop in relation to each other and their impact on shelf limits. The central Arctic Ocean Basin is divided into several smaller basins by ridges that run through them, including the Lomonosov and Alpha-Mendeleev Ridges. The central legal issue for Russia, Canada, and Denmark is whether these two ridges are submarine elevations or oceanic ridges and whether they are natural prolongations of their land mass.Footnote 40 Oceanic ridges will not normally be associated with the continental shelf and will not extend a state's continental shelf limits. As such, it is unlikely that a state will forward a theory that the elevation is an oceanic ridge. In contrast, elevations that are submarine ridges can extend a state's claim up to 350 nautical miles.Footnote 41 Alternatively, if a state can prove that the elevation is a natural component of the continental margin, then it can potentially claim 100 nautical miles past where the depth of the ocean reaches 2,500 meters.Footnote 42 Consequently, these elements were expected to form the basis of submissions by Arctic states, as indeed has happened in the submission to the Commission made by Denmark/Greenland in December 2014.
The issue in these latter types of claims is whether the constraint line is 350 nm because it is a submarine ridge, or whether the shelf can extend as far as 100 nm from the 2,500-m isobath (i.e. beyond 350 nm) because the ridge is a natural prolongation of the continental margin. Canada, for example, faces this challenge in proving to the Commission that the features of the Lomonosov and Alpha ridges are natural prolongations of the North American continent. The difficulty for Canada is that the bathymetry in that region shows a trough north of Ellesmere Island that seemingly separates the ridges from the mainland and which would detract from Canada's assertion that the ridges are natural prolongations.Footnote 43 Facing different interpretations of the bathymetry, Canada undertook a multi-year project to image the crustal structure below the seafloor and to compare the results with those from the adjacent continent.Footnote 44 Based on new data and reasoning applied by the Commission in several recent recommendations regarding relative depths, It is likely that Canada hopes to persuade the Commission that its interpretation of the geomorphology of the Lomonosov Ridge would be accepted as evidence of natural prolongation.
In addition to questions of appurtenance, differences have also developed over what distinguishes ridges that are attached to the margin from those that are a natural prolongation of it. If a submarine ridge is a natural prolongation of the land territory but not a natural component of the margin, the Convention suggests that the maximum claim would be 350 nm. Consequently, states must present evidence to support the claim that the ridge is a natural prolongation and evidence that it is a natural component of the continental margin, meaning that there is a geological affinity between the ridge and the territory.Footnote 45 However, states lack consensus on whether the crustal types from the territory and the ridge are similar and have forwarded conflicting theories as to how the Alpha ridge was originally formed.Footnote 46
2.2. Commission mandate
The ability of the Commission to generate the certainty needed for shelf delineation has largely been ascribed to the authority it exercises in pursuing its mandate. The Commission affects legal certainty and compliance through its power to review coastal state submissions and issue recommendations on claims to the extended continental shelf.Footnote 47 As the only body that could potentially arbitrate competing and dichotomous understandings of the Treaty and the science needed to meet its requirements, its recommendations have a legal effect.Footnote 48 In this formulation, the Commission is to take on the role of evaluator through its activities as an independent body but is also to act as an interpreter of both technical and legal norms.
To be clear, the Convention has not conferred authority on the Commission to rule on the coastal state's legal interpretation of the rules in the Convention. Rather, its role is to evaluate whether the proposed limits have been established by the coastal state using recognized scientific norms and the application of appropriate methodology.Footnote 49 In reviewing submissions, the Commission is not meant to represent the interests of any one state (coastal or non-coastal) or that of the International Seabed Authority, whose interests are also affected by its findings. However, it is meant to represent the entire international community and so it must evaluate coastal state submissions with a mind to the rights of all state parties. To this end, the mandate of the Commission has been constructed as technical and scientific.Footnote 50 It is intended to verify whether the formulae have been correctly applied or whether a submarine elevation is indeed of the nature claimed by the coastal state. However, in advising and recommending, the Convention generates interpretations that determine the substantive content required for shelf delineation.
As the International Law Association has stated:
the Commission has to be presumed to be competent to deal with issues concerning the interpretation or application of Article 76 or other relevant article so the Convention to the extent this is required to carry out the functions which are explicitly assigned to it.Footnote 51
The Commission actively obtains legal direction from different legal advisors,Footnote 52 and its work has legal consequences.Footnote 53 The Commission at least implicitly takes positions on the technical analysis of data. Moreover, by referencing its prior decisions or recommendations, the Commission informally creates precedents upon which states and the tribunal rely. As Andrew Guzman writes, ‘because international organizations can coordinate international interactions to increase the likelihood that states will submit to the authority of dispute-resolution bodies, such organizations have an important role.’Footnote 54 Where the Commission draws upon its ability to decide like cases in a like manner, it too positions itself as an important actor in the interpretation of international law.
Ultimately, the Commission's mandate means that the unilateral character of coastal state delineation is subject to endorsement or condemnation by the Commission. The combined effect of interpreting data in light of the Convention's language is to confer both technical and legal authority on technical experts and thereby authorize them to interpret what constitutes the outer limits of the continental shelf and what evidence is needed to establish it. As a result, the Commission has become a key international actor to interpret what constitutes compliance with Article 76 for coastal states.
2.3. Commission uncertainty
While the Commission has drawn on its mandate to interpret the Convention several factors could militate against Commission interpretations. First, it is not entirely clear that states did consent to confer interpretive or delineating authority on the Commission. On a plain reading of Article 76(7), coastal states are permitted to exercise their rights over the continental shelf independent of the Commission's declaration.Footnote 55 The Commission's implicit competence to interpret the Convention has been accepted as necessary to the task of making recommendations but most would agree that it does not replace the competence of state parties to interpret it as well.Footnote 56 Conflict between state parties and the Commission in other jurisdictions attests to this wider problem. For example, disagreement with the United Kingdom over the interpretation of Article 76 in regards to the Ascension Islands prompted the UK to issue a public criticism of the Commission's authority.Footnote 57
Second, states may be reluctant to reinforce the power of a supra-national organization that takes decisions farther from individual citizens and democratic control exercised through sovereign action.Footnote 58 Andrew Guzman notes that there is increasing anxiety in the United States that delegations to international institutions create a significant threat to domestic sovereignty.Footnote 59 To be sure, a decision to establish a group of international technocrats charged with making non-binding recommendations can be distinguished from the formal delegation of authority.Footnote 60 However, accountability gaps on issues, such as the confidentiality of state submissions and recommendations by the Commission, have raised questions about the capacity of procedure to affect state interests.Footnote 61 Based on these types of considerations, scholars have argued that states will likely resort to strong criticisms of Commission interpretations and processes.Footnote 62
Third, a state party may not agree with the interpretation of data adopted by the Commission. Prior difficulty accessing the Arctic Ocean and the ocean floor has meant that all data derived from shelf research is new, and much of the way that data has been interpreted is untested. Moreover, theories of shelf structure have changed significantly since the terms of the Convention were finalized and opened for signature in 1982. Advances in technology and methodology used to map the ocean floor are at the core of theory change that can limit the persuasiveness of state submissions. As Bernard Coakley and Betsy Baker have noted:
Article 76 was written at a time when narrow-beam bottom sounder data was the primary bathymetric mapping tool. As a result, it was built on a remarkably simplistic view of the seafloor that has been completely overturned by the swathe [of] bathymetric data collected over the last two decades.Footnote 63
The effect of technological change on shelf delineation is to constantly bring the relevance of data, into question. Uncertainty in the interpretation of the data has led to multiple and contested theories about the structure and formation of the shelf by submitting states and those commenting on state submissions. In these circumstances, coastal states may choose to object to Commission interpretations.
Ultimately, multiple centres of interpretation can undermine the role of the Commission as a generator of certainty. Dichotomous interpretations could manifest as the express rejection of Commission interpretations of Article 76, or a rejection of how the Commission interprets the type of data submitted to support a claim. Rejections can arise immediately or can arise in future negotiations for delimitation between states with opposite or adjacent coasts or in the licensing of resource extraction projects in contested areas. Naturally, continental shelf boundary delimitation between states is a separate process from the establishment of the outer limits of a continental shelf. Delimiting the continental shelves of states with opposite or adjacent coasts involves drawing international maritime boundaries, whereas delineation of the outer limits could generate more restrictive limits.
Moreover, processes and recommendations of the Commission are without prejudice to the bilateral delimitation of boundaries. However, overlapping continental shelf entitlements mean that continental shelf delineation is expected to impact negotiations for delimitation in the region. States may therefore be reluctant to comply with Commission recommendations where legal and scientific rulings remain uncertain and can negatively impact future negotiations. As Monique André Allain argues, Article 76 may exacerbate the contention between the Arctic States, rather than settle them, as states will most likely use its ambiguities to object to their neighbours’ claim or to justify their own.Footnote 64
3. Constructing scientific authority in international law
The varying interpretive positions that can be taken on Article 76 and contestation over the import of the data mean that the exercise of authority does not in and of itself explain why Commission interpretations would be persuasive for coastal states. Instead, answering why Arctic states are likely to comply requires digging deeper into the social processes that engender compliance. A constructivist explanation of international law provides this deeper insight.
Within a constructivist approach, an international treaty like the Convention is identified as a causal agent that gives rise to social practices that impact the interpretation of law.Footnote 65 Rules are seen to affect behaviour, in part by constituting how agreement will be reached. Constructivism focuses upon the identities of actors as generators of interests and the legal interpretations that result.Footnote 66 While theorists focus on different aspects of how legal processes can engender self-enforcing compliance,Footnote 67 the key to understanding compliance is to see the formal act of accepting legal obligation as signalling the beginning of a broad process of lawmaking that is carried out by actors using particular discourses.Footnote 68
In relation to the Arctic, and especially delineation of the continental shelf, the power of scientific actors has been remarked upon by a small group of legal and political scholars that has identified the unique role they play in Arctic law and governance. For example, Jensen Øystein has recently undertaken an extensive review of how the Commission's authority is operationalized through its judicial role to interpret and apply law but also through its role as a scientific and administrative body. On the basis of a functional analysis of its practices, he argues that the Commission is best understood as an institution that embodies all three characterizations.Footnote 69 Similarly, Suzette Suarez analysed the functional work of the Commission vis-à-vis technical submissions and the work of its advisors. Based on her findings she has concluded that the fundamental nature of the relationship between the coastal state and the commission is co-operative, and not competitive.Footnote 70 Using legal process to establish authority, these two scholars have followed the approach pioneered by Lasswell and McDougal under the rubric of the New Haven School to determine the international processes by which the Commission exercises its authority.Footnote 71 More importantly, they argue that understanding the extent of Commission authority involves a more complex understanding of functional legal practice than previously provided in the literature.Footnote 72
Oran Young, a vocal proponent of understanding the importance of scientific communities in international relations, also argues in favour of analysing the role of institutions, with special attention to the actors who produce scientific knowledge.Footnote 73 Young's work on the Arctic has offered consistent study on the forces and actors that shaped agenda formation by states. With special attention to environmental regimes related to the Polar Regions, trans-boundary air pollution and ozone depletion, Young has expressed considerable optimism in the ability of scientific knowledge to promote a co-operative approach and better governance systems in the Arctic.Footnote 74 Betsy Baker has similarly argued that the effect of Article 76 has been to create a transnational network of lawyers, scientists, policy makers, and politicians in the Arctic that are governed by scientific norms.Footnote 75 Baker sources recent co-operation between Arctic states in gathering and sharing data as indicative of how theories about the Arctic Ocean shelf are competing and developing.Footnote 76 What is important about this scholarship is that it has identified the role of scientists and scientific organizations as key actors in an international legal regime. Young and Baker identify that key agents trigger an interaction of scientists at the international level, who forward interpretations of international legal norms and then work to persuade Arctic states to internalize those interpretations.Footnote 77
However, while the scholarship to date has identified the role of scientific actors and the institutions in which those actors operate, it has not yet identified what is unique to scientific institutions and actors that support Commission authority. It is here that a constructivist approach to identifying the role of scientific discourse in generating agreement offers some insight. As Chayes argues, states can persuade violators to comply through discourse among parties, treaty organization, and community.Footnote 78
A constructivist approach, which focuses on iterative processes of justificatory discourse and persuasion, helps to identify that where international law relies heavily on technical standards that must be mediated by scientists, scientific methods for achieving consensus play a large role in defining the process for resolving disputes and uncertainty.Footnote 79 Thus, in addition to identifying the actors that impact interpretation, a constructivist approach focuses on the language and mode of communication used by those actors to generate agreement and settle disputes.
The reliance on scientific agreement or consensus arises most often in international law when used to legitimize legal and political decision-making.Footnote 80 International organizations seeking to create international standards or a way to determine whether they have been met must reach agreement on what the science requires and whether it is met by the practice in question.Footnote 81 However, law's use of science is inextricably reliant on the legitimacy generated by internal scientific processes. As Christian Joerges comments of the role of experts in international law, ‘where experts and scientists cannot agree, they nonetheless continue to interpret their controversies as a learned exercise and entrust the scientific community with the competence to assess their claims’.Footnote 82
Sociological studies of scientific processes long ago identified a pattern to how scientists identify disputes and settle them. As originally described by one of the earliest sociologists of science, Robert Merton, several versions of truth (i.e. theories) compete to become recognized as ‘facts’.Footnote 83 Peer processes are expected to move knowledge from uncertain to certain or from theory to fact. This engages scientists in a complex social process of persuasion expected to lead to consensus or at least provisional agreement. While consensus is not a guarantee of accuracy, scientists will still use their own recognized processes (mainly around the dissemination of knowledge) for building this agreement; yet always leave open the possibility that new information can again bring agreement into question.
Generally, scientists seek to disseminate certified knowledge through peer reviewed publication and presentations to peer groups. Authority, in this formulation, derives from what Robert Merton has called ‘empirically confirmed and logically consistent statements of regularities’.Footnote 84 However, scientific authority does not always derive from consensus generated over a long history of publication and public presentation. Scholarship on the role of science in democratic societies, mostly associated with science and technology studies, has identified that governmental needs for scientific consensus in key policy areas have created new fora in which scientists integrate scientific findings with law and policy as well as new techniques for generating agreement.Footnote 85 Where science remains inconclusive but consensus serves a regulatory purpose, states will actively generate expert authority by facilitating or managing the production of scientific consensus needed for a policy decision even if the science might be viewed as inadequate or inconclusive.Footnote 86
In the international context, reaching consensus in these circumstances involves the use of co-operative strategies, such as commissioned committees, information sharing, discourse, capacity building, and negotiation.Footnote 87 These strategies have been identified as effective techniques for compliance.Footnote 88 Experts, working on behalf of their own states, actively seek out convergence on particular scientific theories and interpretations of common data. Rather than obtain consensus from publications alone, consensus is gleaned from the level of agreement evidenced by co-operative practices. This type of managed consensus seeks to gain peer recognition from the ‘chains and networks of overlapping scientific neighbourhoods’ that connect different scientific communities and guarantee the discovery of scientifically meritorious knowledge.Footnote 89
There are certainly problems with managed consensus in the legal and policy context that undermine its use as an indicator for widespread agreement. Because the exigencies of the political and regulatory processes make demands upon science to generate consensus in a time-sensitive manner, the science is heavily mediated by state involvement and is often treated with some scepticism. These constraints can result in science-based policies that encourage scientists to circumvent or alter accepted methods used to prove the existence of scientific norms.Footnote 90 Scientists are often faced with either compromising their norms, or developing alternative processes for generating consensus.Footnote 91 As a consequence, traditional norms for evaluating expertise and formulating consensus can be absent from state-directed research or policy science. Moreover, the results from facilitated consensus are plagued by concerns that negotiation reflects bias, interest, or groupthink, rather than agreement on facts, and therefore has limited its relevance for indicating true consensus.Footnote 92
Nonetheless, despite these limitations, there is a growing recognition of ‘hard won consensus’ as a proxy for long-term processes. One definition of the term ‘hard-won consensus’ is agreement which emerges only after vigorous debate and a thorough examination of the range of alternative explanations. It is one in which centrifugal tendencies are strong and the experts are drawn into agreement only reluctantly and after careful consideration. For instance, Brent Ranalli has used the term to explore the motivation for using negotiation to overcome disagreement over climate change science.Footnote 93 Information about risks caused by climate change, ozone depletion, and disease is often inadequate or incomplete, leading to a struggle to define the scientific and legal terms that attempt to regulate those risks.Footnote 94 The effect has been to encourage the proliferation of plausible perspectives on the causes and solutions to these problems and thereby exacerbate claims that the science is inconclusive. Advocates often present a significant amount of scientific material to corroborate their respective positions, leaving the relative merits of the competing scientific evidence to be a matter for persuasion.
Rather than explain negotiated consensus as a product of bias, interest, or groupthink, the hard won consensus relies on the active pursuit of dialogue and expertise in negotiation.
Jacqueline Peel also reports a phenomenon of negotiated consensus in her recent investigation into the use of science in international law.Footnote 95 Peel examined several international contexts in which parties negotiated their differences over regulatory policies based on scientific disputes including: the settlement of health and environment disputes under the WTO's General Agreement on Tariffs and Trade,Footnote 96 consensus seeking processes of the Codex Alimentarius Commission on global food safety standards, and negotiations for the Cartagena Biosafety Protocol governing the transboundary movement of GMOs.Footnote 97 Peel argues that science-based arguments can limit the effectiveness of the agreements, especially where risk estimates are captured and used strategically to foster trade barriers. As a result, parties must negotiate, through their experts, which standards to adopt. Similarly, international co-operation to reduce pollution in the Mediterranean Sea was traced by Haas to a network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain for a legal issue.Footnote 98 In Haas’ study, opposing positions on the value of particular pollution controls by Mediterranean states were overcome by empowering a group of experts to generate agreement on effective controls.Footnote 99
Taken together, these various studies of international law and regulation indicate that scientific agreement has become foundational to defining compliance of states and other actors. Where experts are essential to the interpretation of international law, scientific norms and the formation of consensus can effect that interpretation. Naturally, this is not always the case as science can continue to be used to foster disagreement.Footnote 100 However, in order to understand in what circumstances scientific communities can bring certainty and settle conflict, it is necessary to identify how expert consensus is operationalized in particular international regimes. This is what the following study of the work of the Commission and transnational actors in the Arctic does.
4. The role of scientific discourse in commission authority
4.1. The Commission's use of science
Just as the formation of scientific agreement has influenced the interpretation of international law in other regimes, it also plays a large role in the work of the Commission. Naturally, the prominent role of scientific discourse in shelf delineation can largely be attributed to the technical mandate of the Commission. The Commission is required to evaluate the relevance of the data submitted by states against its claims. Where there is agreement on knowledge presented in support of that claim, the Commission is expected to support it. Moreover, the Commission draws on its characterization as a technical or scientific body to legitimize decisions made pursuant to this mandate.Footnote 101 The Commission's twenty-one members must be experts in geology, geophysics, or hydrography. This expertise is meant to dictate the evaluation of state claims,Footnote 102 and stand in direct contrast to most international tribunals and courts, which include lawyers in the determination of legal rights. The exclusion of lawyers from the list of members speaks to significant agreement between state parties that legal expertise is not primarily relevant to the evaluation of state claims. It is the scientific training and knowledge of the members that is expected to bear on delineation.
The ‘Scientific and Technical Guidelines’ (the Guidelines) promulgated by the Commission also make it clear that the Commission addresses uncertainties in the treaty with scientific or technical methods. The Guidelines offer statements by the Commission as to the criteria needed to establish a claim and are intended to provide an important scientific and technical reference for the consideration of submission and preparation of the Commission's own recommendations. As Schachter noted in 1967, the ability of rules to adapt to new understandings in science and technology allows them to ‘leave room for future development and many-sided approaches’.Footnote 103 Much like other global intergovernmental organizations that exercise specific competencies through rules, such as the World Meteorological Organization (WMO) or the Food and Agriculture Organization (FAO), the Guidelines centralize interpretation, expertise and compliance in the Commission in order to address uncertainty.Footnote 104
In many ways, the impact of the Guidelines on the scientific and technical standards to be used by state parties is somewhat straightforward. The Guidelines instruct parties which methods will be used to determine whether the data is sound and relevant. States generate data that either conforms to the Guidelines or is consistent with them. However, the Guidelines undertake more than listing what technical processes or scientific data is needed. They also establish the authority of the Commission to address remaining uncertainties. The Commission has stated that its aim is to clarify the interpretation of scientific, technical, and legal terms contained in the Convention that depart from scientific definitions and terminology or that permit several equally acceptable interpretations.Footnote 105 Practically, this regulatory context renders the Commission the most important interpreter of the science needed to meet the requirements of Article 76. For instance, it is in each state's interest to maximize their own claim by establishing that the topographical features are natural prolongations of the margin, rather than ridges.Footnote 106 Yet, as discussed above, it is unclear which criteria a state should use to establish that the Arctic features are a natural prolongation of the continental margin.Footnote 107 Commission members have circulated opinions about what kind of data will support shelf claims and have publicized them through the Commission's regulations, prior recommendations, and publications on the topic, but have also maintained a preference, through the Guidelines, for dealing with the issue of ridges on a case-by-case basis.Footnote 108 Because it has not established an overarching procedure for distinguishing between them, it is left to state practice, state contestation, and the Commission to assess the validity of claims on the topic.
Another way that the Commission engages with generating scientific conformity is through its role as advisor to states and through its involvement in training.Footnote 109 In addition to considering the submission of coastal states, the Commission is tasked with providing scientific and technical advice, if requested by the coastal state during the preparation of the submission.Footnote 110 Under Rule 55 of the Rules of Procedure, it is the task of the Committee on the Provision of Scientific and Technical Advice to Coastal States to attend to requests for advice by coastal States in accordance with Article 3(1)(b) of Annex II of the Convention. However, to date, no coastal state has submitted an official request for advice, preferring instead to obtain the advice of particular Commission members or former members directly.Footnote 111 While transactions between states and members have been treated as confidential, it is conceivable that Commissioners will provide advice on scientific and technical matters, as well as procedural and other relevant legal issues.Footnote 112 In doing so, the Commission and/or Commissioners communicate their views on the technical and scientific information needed by coastal states for successful submissions.
Faced with the requirement to advocate on the basis of technical data, each of the Arctic littoral states has gone to significant effort to define shelf research as a national priority and carry out the scientific research necessary to their claims. Due to cost restrictions, coastal states often use standard mapping technology and contract out the mapping required for submission to the Commission. However, each of the Arctic states boasts a wealthy economy, extensive bureaucracies, and experience with oil and gas development as a major source of national revenue. The result has been the creation of large bureaucracies comprised of technical and scientific experts on continental shelves that inform how states will frame a research agenda and what data will be submitted in support of state claims.
For instance, Canada's scientific work on the continental shelf is led by a collection of geographers and geologists who work under the auspices of the Geological Survey of Canada (Natural Resources Canada (NRCan)) in tandem with the Department of Foreign Affairs, Trade and Development (DFATD). The effect of the creation of research agendas and science bureaucracies has been to generate a significant amount of domestic expertise in Arctic states. Much like specialists tasked with shelf delineation in other Arctic countries, these specialists advise the national government, which aims to use the data in support of its claims. Bringing their expertise to bear on interpreting the data obtained, these scientists ultimately structure and alter what legal position a country may take before the Commission. They interpret data that would be supportive of particular claims and engage regularly with legal and policy actors who formulate national policy on shelf delineation. In generating theories of shelf-formation needed to substantiate national claims, these disparately trained scientists form national communities of thought that aim to influence the Commission.
4.2. Transnational use of science
The difficulty states face in submitting their data to the Commission is that they cannot ensure that the Commission will agree that the data is supportive of the claim. Consequently, should a state want to convince the Commission of its technical understanding of the shelf, it would presumably need to provide evidence of a very high level of scientific agreement. The Commission is unlikely to reject the veracity of the data submitted, but it is likely to question whether there is consensus that the data evidences the legal characteristics of the shelf, as traditional forms of validating consensus are often absent. There is little published information on Arctic shelf research and those scientists engaged in Article 76 mapping are a particular subset, set apart by their policy goal to substantiate as expansive a claim as possible. To be sure, scientists mapping the shelf are trained in disciplines as wide ranging such as geology, geography, chemistry, biology, and ecology. However, it is difficult to imagine that the Commission will judge the conclusions drawn by the state on its scientific merit without regard for the fact that the research is motivated by national characteristics and that the submitting state is partial to its own interests.
Because the circulation of contested theories could serve to undermine state submission, state actors, including state scientists, have begun to circulate transnationally. As Baker writes, ‘[b]y necessity, lawyers, scientists, and policymakers involved in Article 76 mapping educate each other about how these changes affect implementation of the Convention, and about how their respective disciplines approach the Convention and its requirements’.Footnote 113 Yet, shelf scientists do not exchange information merely out of the need to corroborate and confirm findings. Rather, much as has been observed in other international contexts, shelf scientists actively seek convergence on particular scientific theories and interpretations of common data for the purposes of managing state consensus. By relying on co-operative strategies such as information sharing, capacity building, and negotiation, state scientists attempt to actively manage scientific consensus in order to generate consensus on treaty interpretation and application. Through these networks they adopt co-operative, rather than adversarial approaches, to the generation and interpretation of data.Footnote 114
4.2.1. Networks for sharing data
There are a number of fora in which Arctic shelf lawyers, scientists, and policy makers have come together to address their interpretations of Article 76. The most regular method of transnational engagement is found in the annual meetings of Arctic state researchers to share data and analysis gathered from the continental shelf. First hosted by Russia in 2003, Russian scientists presented the content of the Russian Federation's submission to the Commission and shared charts, maps, and data used to support this submission. Since 2007, Canadian, Danish, and Russian scientists have held annual meetings to discuss technical matters pertaining to the shelf.Footnote 115 In 2009, representatives of the foreign ministries were invited to participate and US scientists were invited to observe. In 2010, the list expanded to include Norwegian officials, thereby ensuring that all five Arctic coastal states were represented.Footnote 116
These meetings have provided an important regular forum for domestic shelf researchers and bureaucrats to advocate for particular interpretations of the data they have obtained from shelf exploration, and the relevance of the data for their separate submissions. In addition to these annual meetings on state submissions, officials confer in speciality workshops and meetings that aim to focus on sub-research questions or convene particular types of researchers on a topic, For instance, the United States and Russia held a joint workshop to present data and theories on plate tectonic evolution of the Arctic, with a focus on north-east Russia.Footnote 117
These types of meetings touch on a wide array of findings but recent presentations have revolved around characterizing the types of ridges located in the Arctic Ocean. The subject of ridges has been in dispute between the parties since the Convention was first negotiated. Since that time various countries and international organizations have issued conflicting opinions on how to define provisions relating to ridges; each one adding to the confusion as to which definition is applicable in the Arctic.Footnote 118 In order to generate shared understanding, state scientists and legal actors have organized these conferences and workshops in which they present otherwise confidential data in order to persuade other state scientists and legal actors of the validity of their positions. These types of meetings are preceded by extensive data collection from the continental shelves of the Artic coastal states, but can also be preceded by publication. Scientific publications from insiders is not common but there have been several instances.Footnote 119 For instance, in 2012, Canadian scientists published an article on the topic in Geophysical Journal International, a peer reviewed journal. They reported that the geology of the saddle area on the Lomonosov ridge was different from the deep ocean floor and presented data from sampling on large parts of the ridge. Based on their findings, they concluded that, ‘the Ridge is a continental sliver rifted from the Eurasia margin’.Footnote 120
That both policy scientists and diplomats attend multi-state workshops on behalf of their governments, present confidential data, and discuss their intended submissions indicates how active governments have become in generating scientific consensus on shelf research.Footnote 121 By sharing research findings and concerns about potential obstacles, representatives from each of the countries seek to anticipate and address the scientific questions and concerns that would impact Commission validation. In doing so, each state attempts to persuade other states of the validity of interpretations that would be beneficial to itself and yet consistent with the state of knowledge in the field.
This seemingly academic network therefore presents an opportunity for state experts to meet and exchange ideas without the need for official meetings. It allows states to exchange data and knowledge without the formal trappings of international relations and diplomacy. Peter Haas noted this same effect in the Technical Working Groups on Marine Scientific Research and Marine Environmental Pollution in the Mediterranean. He notes that the workshop ‘is a meeting place for the regional scientific community, and functions as an integrative force bringing the epistemic community together in one particular setting’.Footnote 122 Moreover, he notes, ‘the workshop process also seems to be the only forum where regional experts may meet officially and ‘express views in ways which cannot prejudice national positions’. This suggests that the workshops are indeed an important venue also in terms of easing political tensions arising from misinterpretation and asymmetrical information.Footnote 123 In testing their hypothesis and theories against each other in these informal settings, shelf scientists and policy actors therefore use discursive practices of scientific contestation and persuasion to develop consensus on shelf formation. While state interests are always in the background, scientific discourses are decidedly in the foreground of these encounters.
4.2.2. Networks for collecting and analyzing data
In addition to the active dissemination of data, consensus on shelf delineation is also generated as a product of increased co-operation and co-ordination of research in the Arctic. Given the difficulties, expense, and uncertain impact of collecting relevant data in the Arctic Ocean, many states have committed to exchanging data, co-operating in gathering it, and most importantly, in some cases, coming to agreement on its relevance to their claims. It remains open to any state to make a full submission to the Commission without any data co-ordination with other states but the cost of the research and the risk of disputes over its content militate against it. States have therefore endeavoured to generate shared understandings of uncertain facts, such as the geology of ridges, and use the same methods by which to compare their data.
Arctic coastal states have increasingly co-operated in the generation and use of science in their submissions. In May 2008, the five Arctic states signed the Ilulissat Declaration, committing themselves to co-operating closely, respecting ‘the collection of scientific data concerning the continental shelf’.Footnote 124 Collaborative practices in exploration and mapping reflects deep-seated support by states for these types of political commitments. For example, state scientists from Canada and Denmark began collaborating when they chartered a Russian and a Swedish icebreaker to conduct surveys in the eastern Arctic.Footnote 125 The 2006 LORITA (Lomonosov Ridge Test of Appurtenance) project with Denmark and the 2008 ARTA (Alpha Ridge Test of Appurtenance) used seismic testing to collect seismic refraction data. The data from LORITA was interpreted jointly by Canada and Denmark, which reached the conclusion that there is continuity of the continental crust from the coasts of Canada and Greenland across the trough and onto the Lomonosov Ridge.Footnote 126
In 2009, a Russian scientist participated as an observer on a subsequent joint Canadian-Danish survey of the Lomonosov Ridge. Building on past co-operation, the survey was designed to assess the affinity of the Ridge with the nearby continental margin. These scientists have since worked together to collect and interpret the data and have co-published their findings in several peer reviewed journals. It is therefore telling that this co-operation has led to findings that seem to support a potential claim by Canada and Demark that the ridge is attached to the plates of North America and Greenland.Footnote 127 Similar results have come from co-operation between Canadian and US scientists who have jointly collected data in the Western Arctic since 2008. Scientists from both countries have shared data but have also interpreted the data to formulate shared understandings of shelf formation and structure. These scientists are now working on co-publishing several articles and have presented their research at scientific conferences.Footnote 128
Arctic scientists have also participated in the joint collection, synthesis, and dissemination of bathymetric data collected in the Arctic. Starting in 1997, scientists collaborated to produce the International Bathymetric Chart of the Arctic Ocean (IBCAO) by consolidating data from various national databases.Footnote 129 The goal of IBCAO is to develop a digital database that contains all available bathymetric data north of 64°, for use by mapmakers, researchers, institutions, and others whose work requires a detailed and accurate knowledge of the depth and the shape of the Arctic seabed.Footnote 130 The use of IBCAO data in shelf delineation engages domestic and transnational epistemic communities in a process of direct and explicit negotiation of methods, interpretation, and theories. Rather than having to convince the Commission of the validity of their techniques and procedures, states can rely on co-operatively collected and synthesized data in projects like IBCAO as a proxy for peer processes customarily used to establish consensus. IBCAO has produced several versions of a chart of the seabed that will be common to each of the Arctic coastal states’ submissions. Moreover, in producing the charts, investigators have met regularly since 1996 to discuss the co-ordination of scientific and technical procedures specifically required for the implementation of Article 76 in the Arctic. Participants noted that investigators agreed to construct common models ‘so that inconsistencies between their respective results are caused by varying methods of interpretation, and not by incompatibilities between data holdings’.Footnote 131
Beyond co-operation on the collection and analysis of data is the possibility that states can make co-ordinated submissions to the Commission.Footnote 132 This enables parties to share the costs of researching and analysing data, to produce a more complete and rigorous data set, and to enhance transparency. Most importantly, it internalizes any unresolved disputes within the group. States seeking to establish claims regarding oceanic features that are yet unidentified would fare better in having their claims accepted where there is consensus. As Byers suggests, Russia, Denmark, and Canada could advance a common view of the character of the Lomonosov Ridge based on shared interpretations of submarine ridges and elevations in Article 76.Footnote 133 Similarly, they could agree on a common geological history of the Arctic Ocean seabed as a means to optimize the chances for success of their submissions.Footnote 134 Because each considers the Lomonosov Ridge to be a natural component of their respective continental margins, they are likely to consider whether they could forward a theory of formation that supports only their own claims or whether it is possible to forward a theory of the ridge that supports all three.
Lastly, while direct co-operation between state scientists on the continental shelf seems like the most obvious tool to achieve state consensus, it is grounded in a long and strong tradition of scientific/research co-operation in the Arctic region – even during the ‘Cold War’. Institutions such as the Arctic Council – through its Working GroupsFootnote 135 – and the International Arctic Science Committee (IASC)Footnote 136 have been instrumental and highly effective in promoting scientific dialogue. Much like other international organizations tasked with gathering and disseminating information, these Arctic organizations, and others, have established secretariats created under international agreements to warehouse knowledge used to assess compliance.Footnote 137 In participating in these organizations at the behest of their home states, scientists contribute to a building consensus on a broad range of topics.
For example, numerous scholars have noted that scientific engagement at the Arctic Council is rooted in a history of environmental co-operation, indigenous engagement, and scientific discourse.Footnote 138 Through its various subcommittees, state-delegated scientists engage in a process of issue identification, standard setting, and regulation on various topics of importance to Arctic states and, in doing so, establish broader co-operative relationships. For its part, IASC brings together Arctic research interests on an ongoing basis, particularly through its decadal research planning process known as the ‘International Conference on Arctic Research Planning’ (ICARP). ICARP II, which took place in Copenhagen (10–12 November 2005) was a key driver in defining the research program of the International Polar Year (IPY) 2007–2008 – which also became a major global platform for co-operation and knowledge-sharing.Footnote 139 ICARP III was approved at the Arctic Science Summit Week (ASSW) in April 2015, permitting state delegated scientists to engage in a process of standard setting and regulation.Footnote 140 The effect is to use scientific discourse on various topics to frame political issues.Footnote 141
5. Conclusion
Explanations for the authority of the Commission on the Limits of the Continental Shelf generally assume that states accept the UN Convention as binding. In so far as the Convention requires certainty about the physical characteristics of the shelf, the provision of technical data is expected to define what constitutes compliance by allowing states to prove that the components of the seabed meet the characteristics of the legal terms. In this formulation, scientific experts on the Commission affirm or contest the work of domestic scientific actors, who provide technical data in support of state claims. The effect of this account is to leave one with the impression that disputes over sovereignty are factual questions that are capable of being answered through the rigorous examination of data to be obtained by the parties. Science is therefore conducted and used for the purposes of containing or closing technical disputes about jurisdiction and sovereign rights and thereby providing certainty.
Nevertheless, accounts of the Convention that rely on the use of science to generate certainty may be of limited explanatory value when treaty interpretation generates uncertainty. Claims of Arctic coastal states to the outer limits of the Continental shelf illustrate the interpretive problems created by Article 76 and its effect on determining compliance with international law. Moreover, it is not only the Arctic where contested interpretations have grounded disputes over authority. Differing claims in the South China SeaFootnote 142 and the South AtlanticFootnote 143 have also been accompanied by differing interpretations of Article 76 and supportive data. Claims in each of these cases are the product of extensive scientific research expected to create certainty. Nonetheless Commission interpretations are unlikely to settle inter-state disputes. Instead, the diffusion of authority in the face of definitional uncertainty creates the potential for multiple and dichotomous interpretations of Article 76. Since law and science are uncertain and potentially open to equally valid and competing interpretations, states may act at odds with each other or with the Commission and still be construed as complying with international law. Approaches that attribute the peaceful resolution of disputes to the Convention therefore perpetuate a myth of sorts. They don't address the possibility that science can generate uncertainty in international law. Consequently, these accounts suffer from the tenuous ability to understand how interests are mobilized in relation to international law or international institutions more generally when interests diverge.
This article has instead forwarded the argument that state parties in the Arctic are likely to comply with Commission interpretations where uncertainty remains because they manage how consensus can be reached. Drawing on a constructivist approach to establishing legal authority, the authors have identified the role that scientific discourse plays in this particular application of international law. In the model of managed consensus described here, Arctic states are not fortuitous beneficiaries of scientific co-operation on shelf science. Rather, a managed consensus model sees scientific representatives of those states as active participants in generating the types of questions policy science needs to answer but also active participants in data collection, dissemination, evaluation, and interpretation. In communicating with transnational networks, state scientists and other policy actors set out to persuade others of the veracity of their theories but also to identify how theories operate for the combined benefit of multiple states. This type of active persuasion manifests in early co-ordination of research technologies, mandatory requirements for consistent data presentation, and ultimately shared interpretations.
This approach does not source the Commission's authority to the Convention as a singular and final transfer of responsibility. Rather, as it relates to the Arctic, the Commission's authority is constantly affirmed and reaffirmed through its interaction with state parties as producers, consumers, and verifiers of science, and, most tellingly, through their management of consensus. The Convention and the rules made pursuant to it, draw participants into routinized activities regarding the validation of gathering and interpreting data. By looking at how science is used as a consciously mediated form of international relations, the normative force of the treaty is dislocated from the strict confines of positive law. While the treaty may have been the genesis of the Commission, its force for delineation in the Arctic can instead be sourced to the way its processes correlate with the discourses of scientific shelf communities in both domestic and transnational contexts. The force of the Commission's interpretations for Arctic states is therefore dependent upon its place within networks through which states forward a co-operative approach to verification and consensus building.
Based on the level of co-operation in Arctic shelf delineation, some commentators have begun to predict its implications for regional relations between Arctic states. For instance, Baker argues that broader regional co-operation in mapping is expected to predict ongoing co-operation between Arctic states and state scientists.Footnote 144 It is hoped that extensive state experience working through technical solutions might mitigate political tensions created by potentially overlapping rights to the shelf. Workshops such as those held to identify common research interests in the region could possibly serve as blueprints for collaborative work in other fields.Footnote 145 Baker draws upon joint seabed mapping, such as that between Canada and the US, as the proper foundation for other activities in the disputed triangle, such as hydrocarbon cross-border unitization agreements, joint development, marine protected areas, and integrated management that fills the regulatory gaps in the region. Co-operation in gathering and sharing data, and discourse over theories of ocean shelf development allow the parties to develop a co-operative dynamic that facilitates future agreement.Footnote 146 To Baker, basic Arctic geosciences could provide a useful realm of co-operative endeavour that models the type of co-operation needed for the requirements of Article 76 of the Convention. In short, scientific co-operation is key to political co-operation and legal action.
Whether co-operation before the Commission is linked to co-operation on other Arctic endeavours is not entirely clear. It seems likely that a culture of scientific co-operation is likely to support further engagement on other issues that come up between the parties but also shared among them. As Young has explored, scientific knowledge has been used to promote a co-operative approach and better governance systems in the Polar Regions – especially related to trans-boundary air pollution and ozone depletion. As the research of the Arctic Council Working Groups illustrates, Arctic states have certainly been influenced by science-based policy to identify shared issues and have shown a great capacity to research them as a region. Whether this level of co-operation will result in effective shared action across the Arctic remains to be determined by future co-ordination. Moreover, what broader implications the approach advocated here might have for submissions to the Commission in other regions are not entirely clear. Differences in the history of state conflict, including the nature of territorial disputes and power imbalances, as well as the capacity of parties to support independent scientific bureaucracies able to engage with the Commission and other states’ scientists will certainly impact its relevance. However, where regional and state capacity to engage in science is matched by a willingness to use it, it seems likely that Commission authority will be bolstered by the common use of scientific discourse.
Ultimately, this article has identified that, much as others have identified the use of scientific discourse to understand the force of international regulation, the Commission's authority over Arctic states should be contextualized within the transnational technocratic regime that governs Arctic science. Networks related to the Arctic continental shelf are not fashioned in one particular form. They can be formal or informal, enduring or provisional, inter-state or collaborative. However, they share an objective of sharing scientific data and building consensus through the standardization of scientific method and interpretation. Because it is agreement on interpretation that drives political agreement on shelf delineation and ultimately delimitation, it is the process of obtaining scientific agreement that is relevant to understanding the authority of the Commission in the Arctic. An empirical analysis of how this authority is generated, as provided here, should augment any understanding of authority that relies on treaty terms and enrich discussion on how law can be used to address international disputes.
