In recent years, as the Arctic sea ice recedes, interest in the Arctic region has increased tremendously—by those wanting to exploit increasing commercial opportunities or who seek to understand climate change in a region profoundly affected by that phenomenon, as well as by states both within the region and outside it trying to assess and act on these changes. As a result, there is a new impetus to both Arctic diplomacy and the study of the legal structures that set the framework for that diplomacy.Footnote ¹ In circumstances where much is happening in the Arctic and the law is evolving to keep up, it is particularly helpful to have available the new compendium of contributions in Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors.

The book is co-edited by Akiho Shibata, professor of international law and director of the Polar Cooperation Research Centre at Kobe University; Leilei Zou, professor at Shanghai Ocean University; Nicolas Sellheim, postdoctoral researcher at the University of Helsinki; and Marzia Scopelliti, a PhD student at the Complutense University of Madrid, and is the outcome of an international legal symposium in December 2017 convened at the Polar Cooperation Research Center. The volume is divided into four parts—(1) “Setting the Contexts”; (2) “People(s) in the Arctic”; (3) “Arctic Marine Legal Order-Making”; and (4) “The Universality of Science and the Arctic Council”—that together contain contributions by sixteen lawyers, academics, and officials familiar with Arctic policy and law. It arrives at a moment when there is considerable interest in questions related not just to how the Arctic states cooperate, but how other states should interact with them in that region.

Who are the Arctic states? In general terms, most think of them as the eight member states of the Arctic Council, each having territory above the Arctic Circle: Canada, Denmark (on account of Greenland), Finland, Iceland, Norway, the Russian Federation, Sweden, and the United States. An inner group of five of these, those that border the Arctic Ocean, are also sometimes grouped together for some purposes, including in relation to application of the law of the sea (Canada, Denmark, Norway, the Russian Federation, and the United States).

Although the Arctic region is comprised of a large ocean surrounded by land, there is a lot of land (how much depends on your definition of the Arctic, and there are many such definitions). Taking into account that land and the maritime zones as reflected in the UN Convention on the Law of the Sea (UNCLOS), most areas fall within some form of national legal jurisdiction. No one doubts that the relevant law in Alaska is U.S. law, in Siberia, Russian law, etc. Fishing, subsea, and other rights of the five littoral states extend northward from the coastal baselines for two hundred nautical miles. And beyond those two-hundred-nautical-mile exclusive economic zones, rights of those five states to an extended continental shelf pursuant to UNCLOS Article 76 will leave a limited seabed area beyond national jurisdiction, (especially when compared to the overall size of the Arctic Ocean) to be administered under the international seabed mining regime. Taken together, the legal authority exercised by the respective Arctic states is considerable. When you add that two of those countries are the United States and the Russian Federation, which have considerable military prowess both generally and in the region, some may wonder what is left for the rest of the world.

Plenty, as it turns out. Numerous countries, including some located far from the Arctic, have important interests in the region. The Arctic, along with Antarctica, is an essential location for studying climate change, and the scientists of many non-Arctic states work hard to study not only climate but aspects of the unique flora and fauna there. Rising levels of commerce, which are predicted to increase in the future (including in relation to the Northwest Passage and the Northern Sea Route) are an area of active study by all major shipping countries. There is also a potential for energy development that could be executed through joint ventures involving non-Arctic states. And as activity grows in the Arctic, so do geopolitical factors that are getting the attention of states as far-flung as India and China.

The Arctic states now have a number of mature legal or quasi-legal structures that help with governance issues. The main diplomatic institution is the Arctic Council, a high-level forum established in 1996 by the eight Arctic states. The Council is not an international organization in a legal sense, but it acts as the preeminent setting for environmental protection and sustainable development (while excluding military and defense issues by design, and sensitive issues like fishing and whaling by practice). Indigenous groups (called the Permanent Participants) sit at the table with states in this forum, although they do not participate in formal decision making, which is done by the consensus of the eight Arctic states. The Council, which manages the efforts of a series of working groups, has been considered quite successful, and has given rise to a number of important legal and regulatory developments, including treaty-making that is touched on at length in the book.

An important milestone in Arctic governance that is reflected on in many places in Emerging Legal Orders is the declaration signed by the five Arctic coastal states at Ilulissat, Greenland in May 2008. The declaration confirmed for at least those states that an extensive legal framework (in particular the law of the sea) provides a solid foundation for responsible management by the littoral states and others and there is no need to develop a new international legal regime to govern the Arctic Ocean.Footnote ² This basic statement, reaffirmed by all eight Arctic states at the declaration's tenth anniversary in 2018, remains a powerful indication that the legal foundation of the Arctic is adequate, and no comprehensive treaty (for example, along the lines of the Antarctic TreatyFootnote ³) is needed.

But governance is not just for the Arctic states. The region is subject to and benefits from many important international law regimes, the most notable being UNCLOS, which covers a host of relevant issues, including navigation rights and marine science. Additional regimes include the International Maritime Organization and its numerous treaties and regulatory initiatives (such as the recent Polar Code,Footnote ⁴ which addresses environmental and navigation issues for shipping), the International Convention for the Regulation of Whaling,Footnote ⁵ the UN Framework Convention on Climate Change,Footnote ⁶ and the Convention on International Civil Aviation.Footnote ⁷ Generally relevant, of course, is the UN Charter. This legal background, which sets the stage for how Arctic and non-Arctic states alike conduct their activities and pursue their interests in the region, is a key focus for Emerging Legal Orders.

The book begins with a thorough and helpful survey of Arctic governance and the roles of both Arctic and non-Arctic states by Timo Koivurova, research professor and director of the Arctic Centre at the University of Lapland. He focuses on the important practical distinctions between cooperation carried out among the eight Arctic states and that which involves only the five littoral Arctic states, which, as already noted, play a key role in the multilateral dynamic. He also describes the unique role of the Arctic Council in Arctic diplomacy, making clear why non-Arctic states need to seek observer status in the Council in order to promote their interests. The Arctic states choose the observers through a process of application followed by decisions by ministers (there are currently thirty-seven observers, thirteen of which are non-Arctic states). The decision as to who becomes an observer involves both an application of criteria as well as political determinations, and getting even this limited status takes a fair amount of effort from applicants.

The current Arctic Council observer states are: China, France, Germany, India, Italy, Japan, The Netherlands, Poland, the Republic of Korea, Singapore, Spain, Switzerland, and the United Kingdom. These are certainly not the only countries with Arctic interests, but they all have made the Arctic a priority region for their engagement, especially when it comes to undertaking scientific research. Many of them, in particular the Asian states among them, have sought to play an increasingly active role in Arctic governance in recent years, and it is in describing this phenomenon that Emerging Legal Orders provides particularly useful background.

A number of chapters help explain how China has sought to increase its influence and activities in the Arctic, a matter receiving considerable attention in both academic and diplomatic circles. Many states have published Arctic policies in recent years, but it is China's White PaperFootnote ⁸ that has received the most attention. That document, reviewed with evident care by Chinese Ministry of Foreign Affairs lawyers, describes China's long-term interests in sweeping terms, and declares linkages to both existing international legal norms as well as cornerstone Chinese policies such as the Belt and Road Initiative. By describing itself as a “near-Arctic state” and discussing a Polar Silk Road connected with cooperation with Russia, China advances the case that it should play a significant role in the Arctic.

The White Paper and its influence on the future of Arctic legal developments is the subject of a chapter by Egill Thor Nielsson, executive secretary of the China-Nordic Arctic Research Centre, and Bjarni Már Magnússon, associate professor and chairman of the Institute of International and European Law at Reykjavik University School of Law. The authors emphasize China's pledges of “cooperation” and argue that the White Paper's biggest political and legal significance is in its reaffirmation of China's legal commitments toward the Arctic. Yet their analysis would have benefited from a harder look at some of the legal terminology carefully deployed by the Chinese government in the White Paper, as it implies (by speaking of “general international law” in addition to UNCLOS) controversial interpretations of UNCLOS that have been used to buttress its legal arguments related to the South China Sea. The key significance of the White Paper is not so much that China plans to adhere to existing legal frameworks, but that China has rather strong ambitions in the Arctic in line with its global policies.

China's participation in the Arctic Council is by no means always well-executed or monolithic. The chapter by Yuanyuan Ren, an SJD candidate at the University of Wisconsin Law School, on China in the Arctic Council makes clear that the Chinese government has not always provided effective representation in the Council's subsidiary bodies. For example, it has failed to attend, lacked continuity in sending the same people to attend, or sent the wrong personnel. However, such problems are by no means limited to the Chinese.

Emerging Legal Orders focuses in particular on how non-Arctic states have interacted with the three treaty instruments negotiated under the auspices of the Arctic Council—on oil spill prevention and response, search and rescue, and scientific cooperation—as well as the 2017 ten-party Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean,Footnote ⁹ which as of this writing has yet to enter into force. These agreements are the main touchstones for treaty law in the Arctic in recent years and thus spending a fair amount of time understanding how they relate to all relevant states is a useful exercise.

Several chapters explain the negotiation, content, and significance of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. The parties to this agreement are the five Arctic littoral States (Canada, Denmark, Norway, the Russian Federation, and the United States) plus five more: China, the European Union, Iceland, Japan, and the Republic of Korea. For those who worry that Arctic governance is a closed club, this agreement is an important example of how cooperation through legal mechanisms is and must be open to non-Arctic states when the circumstances so require. In this case, fishing in the Central Arctic Ocean may be carried out in the future by major fishing states. Thus, the agreement, which anticipates future fisheries (and reflects a precautionary approach to fisheries management), includes as equals states and a regional economic integration organization from outside the Arctic. A chapter by Joji Morishita, a member of the Japanese negotiating delegation and a professor at Tokyo University of Marine Science and Technology, and one by Erik Molenaar, a member of the Danish delegation and deputy director of the Netherlands Institute for the Law of the Sea at Utrecht University, provide important details. As Morishita explains, Japan saw the importance of this agreement in particular in relation to its desire to strengthen its role and status in Arctic affairs (and it can be assumed that the other non-Arctic players also felt that this agreement would solidify their standing in Arctic matters generally). The piece by Molenaar helpfully focuses on the intricacies of the agreement, including the multiple interests of states in fisheries matters—as coastal states, flag states, distant water fishing states, etc. It also draws some important connections with current UN negotiations related to protection of high seas biodiversity (the ongoing negotiation of an instrument under the UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction).

With respect to the agreements related to the Arctic Council, none are open to non-Arctic states to join as parties, but they have implications for activities by those non-Arctic states and have to varying degrees taken into account non-Arctic state interests. This is made clear in the context of a chapter addressing the Agreement on Enhancing International Arctic Scientific Cooperation by Shibata, a member of the Japanese delegation to the negotiations which took place within a task force established by the Arctic Council. Shibata's detailed and informative chapter describes the negotiations and the extent to which Council observer states were able to influence a number of key provisions of the ultimate text, even though only the eight Arctic states had leading roles. In his estimation, the non-Arctic states were able to protect their legitimate interests related to scientific exploration, and through provisions incorporated in the final text were “fairly successful in eliminating discrimination among the scientists based on their nationalities” (pp. 219–20). This is a hopeful conclusion, given that the Arctic Council places decision making solely in the hands of the eight Arctic states, but with regard to some vital activities in the Arctic, like science, numerous states and the international science community have fundamental interests.

Science cooperation is also essential to the operation of the Arctic Council's working groups, and a chapter by Sebastian Knecht, PhD student at Freie Universität, and Jennifer Spence, postdoctoral fellow and research associate at Carleton University, describes how non-Arctic states are integrated into the scientific aspects of the Council's program, notably through the mechanisms of the Council's rules of procedure. The authors make a cogent point that while the observer states tend to be treated equally once they are admitted, whether and when to admit new observers has not been solely a matter of the Senior Arctic Officials (who lead the Arctic state delegations) and ministers reviewing established criteria and scientific qualifications—there are political factors as well.

Essential to any analysis of Arctic politics and policy is the role of indigenous groups, which is touched upon in a chapter by Dalee Sambou Dorough, an Inuk from Alaska and Chair of the Inuit Circumpolar Council, on indigenous peoples’ perspectives on non-Arctic states. The relationship of the Permanent Participants to the state observers has sometimes been contentious given that the Permanent Participants are at times competing with observers for attention and resources. The friction between the indigenous groups and observers has occurred despite the fact that, within the Council and under its rules of procedure, the Permanent Participants’ roles are superior to that of the observers.

There is a long-term tension between the keen determination of the non-Arctic states to be influential in economic and political terms in the Arctic and the inherent advantages of the Arctic states, including through their existing and effective modes of cooperation (particularly via the Arctic Council). These days, a growing number of countries are not satisfied to stay on the sidelines, with the result that the existing legal order is being pressed to adapt. Emerging Legal Orders makes a key contribution by providing clear evidence for how non-Arctic states are increasing their standing in Arctic institutions and instruments, and thus promoting their interests in a region that while dominated by certain states, has room for contributions (and potential for competition) from many others.