The Arctic Council is often viewed as politically ineffective because of its lack of legal authority. But despite its many limitations it has proven otherwise since its establishment 20 years ago, playing a central role in Arctic norm-setting since the thaw of East-West relations in the 1990s, which has led to deeper cooperation and uninterrupted stability in the Arctic. A patchwork of intersecting soft law standards produced by the Council has helped circumpolar states and other key actors to overcome past tensions and sit around the same table to address common and pressing regional issues.
To explore this subject, the Arctic Yearbook’s managing editor Joël Plouffe recently interviewed Camille Escudé, a PhD candidate in international relations at Sciences Po-CERI, France, and author of the Arctic Yearbook’s article “The Strength of Flexibility: The Arctic Council in the Arctic Norm-Setting Process.”
Joël Plouffe: Your article looks at how the Arctic Council as a body produces norms that shape international affairs in the region. Specifically, how have these norms been articulated over the last two decades since the establishment of the Council in the mid-1990s?
Camille Escudé: The Arctic Council is the most prominent intergovernmental organization in the region and has been the principal producer of norms since its establishment in 1996 as a high-level forum. It’s important to mention that the Council’s role as norm-creator is mostly limited to environmental protection and sustainable development issues – the two pillars of the Council’s mandate – and of course excludes questions relating to hard power security that were also exempt from the Ottawa Declaration that founded the Council. The type of cooperation that emerged in the early post-Cold War years was aimed at strengthening multilateral relations between Arctic states and Indigenous organizations at the civil level, not on the level of the military.
Ever since the 1990s, the Council has developed a certain number of treaties and multiple legal norms that seek to structure or organize Arctic governance and cooperation between state and non-state actors, ultimately seeking to promote the best practices based on the Council’s mandate. But we must reiterate that the Council in its current form does not have a legal personality and does not have the power to constrain behavior in the region. It is up to the states to enact these norms through their own national legislations and processes, with all the complexities that could entail.
The Council has, however, seen its prerogatives strengthened since its inception in the 1990s, and most recently, I think, has truly begun a new phase of norm-setting with the 2011 Nuuk Declaration. The “Framework for Strengthening the Arctic Council” was signed at the 2011 Arctic Council ministerial meeting in Greenland with the intention of creating the first legally binding instruments to structure Arctic governance. The Nuuk meeting also marked the creation of a “Task Force for Institutional Issues” (TIFF) that seeks to strengthen the institutional capacity of the Council.
The Nuuk ministerial and the 2013 Kiruna ministerial in Sweden marked a break in the process of creating standards. The first agreement dealt with search and rescue in marine and air spaces, and the second was established to tackle the fight against pollution produced by hydrocarbons in the Arctic. More generally speaking, the signing of these two agreements illustrates an important step in the production of standards over the past two decades within the Council, which in my view seems to be moving toward a more robust system that produces and enforces standards, but still remains within a soft law framework.
Plouffe: The Arctic Council is a complex system of interactions between state officials, permanent participants, NGOs and non-Arctic state observers. Who leads the norm-making process in this type of setting?
Escudé: If the Council is in theory an inclusive organization, then a hierarchy between all of these actors is the modus operandi of the standard-setting process. For example, non-Arctic states do not have the right to speak or make political declarations in the formal talks at Council meetings. The status of the Permanent Participants (PPs) – Indigenous peoples’ organizations – is another separate category of members who are included in the decision-making process, even if they don’t actually have the right to vote on the same basis as the states. For example, in 2011 and 2013, only state representatives signed the two agreements introducing truly binding standards for Council members, without the PPs’ signature. This shows that the role of non-state actors and, in particular, that of PPs, is secondary when it comes to norm-making.
At the highest level, it is the states that organize the norm-making process, represented by their foreign affairs ministers, Nordic affairs ministers or ministers of the environment. This illustrates the eminently political aspect of a forum that on paper does not deal with political matters, which are nevertheless expressed through the Council’s complex processes and interactions.
Only two legally binding agreements have been produced at the end of ministerial meetings – these are the biennial meetings that take place in the Arctic Council chairmanship host country like the upcoming one in Fairbanks, Alaska, which will mark the end of the American chairmanship and its transition to Finland for the next two years. At the end of each ministerial meeting, a declaration is adopted that summarizes the objectives reached during the past chairmanship as well as those for the years ahead.
Plouffe: As the title of your paper indicates, the Arctic Council’s “flexibility” facilitates the norm-making process in the region and has been at the core of the Council’s successes over the years. But others have also argued that the Council’s lack of legal authority weakens its role as an institution, since it lacks the power to implement the agreements it produces. In your view, how do we overcome this dichotomy between hard and soft law?
Escudé: You are right to point out that the lack of legal authority could weaken in some way the role of the Arctic Council, and we often see that soft law has its set of limitations when the Council fails to implement the standards it spends years to achieve. In my view, the Council’s flexibility goes beyond this dichotomy by showing that this system allows for the establishment of standards that could not be implemented otherwise. What I’ve noticed in my research is that in the present situation, in which states do not wish to subordinate their sovereignty to an organization that legally obliges them to do so, soft law then becomes an interesting solution or a preferred option to achieve progress – or maybe the only one! For me, the Council in its current flexible form, even if limited or imperfect, is better than having nothing at all.
I would also add that through its flexible structure, the Council facilitates cooperation and produces standards that may be appear weak at first, but have the potential to become stronger, as we’ve seen throughout the 2000s. The objectives of soft law are often more easily attainable than those of hard law, especially when they defy state sovereignty.
But for me, the most important advantage of the Arctic Council’s flexible structure is that it allows non-state actors to express themselves by recognizing their place in new cross-border challenges such as those related to the environment and climate change. These non-state actors, especially Indigenous peoples, are the first to be affected by Arctic change. A hard law structure would certainly be narrow and rigid, to the detriment of the Council’s PPs.
In the end, the norms that the Council produces are certainly not legally binding in international law, but can be politically or morally binding, thereby influencing state behavior.
Plouffe: Your research makes the case that the Arctic Council has been the exceptional norm-producer in the region during the 1990s and 2000s; you argue that it’s been at the “heart” of the Arctic norm-making process. Do you see this trend changing for better or worse in the future as a result of increased globalization, which is bringing a set of new actors into Arctic politics (for example, the new observers sitting at the Council table and lobbying their interests)?
Escudé: Indeed, although the Arctic Council is not the only international organization of importance in the region, it is at the center of the process of creating standards in the Arctic and this role seems to be confirmed in the light of its internal evolutions.
The Council has seen its structure and tools grow stronger over time. The development of its own communication strategy and the establishment of a permanent secretariat in Tromsø contributed to the institutionalization of the Council in the early 2010s, bringing its structure closer to that of an international organization or a diplomatic mission. Its structure has also expanded, welcoming a growing number of non-Arctic state observers and NGOs. These should be seen as advancements that reflect the growing attractiveness of the Arctic region in international relations. It’s interesting to note that with the new Asian observers in the Council, half of the world’s population is now involved in some way in Arctic governance. They don’t theoretically have a voice in the matters discussed in the Council, but in practice their presence translates to lobbying outside of formal meetings and it initiates continued dialogue. They also bring in scientific contributions, through funding or participation in the Working Groups.
On the other hand, even if the globalization of the Arctic Council should not be overestimated, it could involve some risks, since it is the Member States and PPs that remain at the core of the Council’s operations and norm-making. The increasing presence of non-Arctic actors in the Council is sometimes seen as something that could weaken the role of internal actors. This is particularly true for PPs; their role would be diluted as the number of actors with economic and political interests grows and whose interests may diverge from those of the actual inhabitants of the region, which must remain the Council’s priority. That is where we are today.
This interview has been edited and condensed for clarity.
This article originally appeared at World Policy’s Arctic in Context blog.
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