Published: 25 October 2019 Author: Kristina Schönfeldt DOI: 10.17176/20220113-171542-0
The Arctic is an increasingly important region facing major challenges caused first and foremost by the effects of climate change. The fast-growing interest in its living and non-living resources, its attraction as a new tourist destination, and its use as a route for navigation also contribute to these challenges. The ongoing melting ice and milder temperatures makes this harsh and inhospitable region accessible and potentially prosperous. Therefore, the eight Arctic States have drawn more attention to the region. Moreover, several non-Arctic actors from Asia and Europe are also seeking to gain a seat at the table. Germany is one of them.
One recent example of Germany’s growing interest and engagement in the region is the German-led Multidisciplinary drifting Observatory for the Study of Arctic Climate (MOSAiC). As part of this international research expedition, which started on 20 September 29019, the German research ice breaker RV Polarstern will drift with or, better, be frozen into the Arctic sea ice for a full year and serve as an observatory allowing scientists to collect data in every season.
Another example of Germany’s heightened awareness of the Arctic region is the publication of a document entitled “Germany’s Arctic Policy Guidelines: Assuming Responsibility, Creating Trust, Shaping the Future”. These Guidelines were developed under the auspices of the Federal Foreign Office and were adopted on 21 August 2019, just one month before the departure of the RV Polarstern.
The 44-page Policy Guidelines set out Germany’s political and economic interests in the region. According to the Federal Government:
“They determine the direction of German Arctic policy in various international negotiating platforms. The guidelines offer clear orientation for future research activities with German involvement and for economic activities by German companies in the Arctic.”
One of these international negotiating platforms is, of course, the Arctic Council, the inter-governmental forum of the eight Arctic States which Germany has attended as an observer since 1998.
According to the Federal Foreign Office, the new Arctic Policy Guidelines prioritise climate and environmental protection, international cooperation, security policy, science and research, development and the involvement of the indigenous population in the Arctic. The Guidelines also affirm Germany’s commitment to the United Nations Convention of the Law of the Sea (UNCLOS) as the basic legal framework governing the Arctic waters. With regard to UNCLOS, the Policy Guidelines state:
“The UN Convention on the Law of the Sea (UNCLOS) forms the universal legal framework for the use and conservation of marine resources, marine environmental protection and scientific marine research, and also applies to Arctic waters. UNCLOS comprises corresponding obligations for cooperation between coastal and other states. The aim is for the States Parties to cooperate at the national, regional and global levels and to work towards the effective protection of the marine environment.
In view of the increasing interest in the Arctic and related activities, the UNCLOS provisions are vitally important. It governs, among other things, the establishment and demarcation of continental shelves, shipping rights, transit passage and peaceful transit, the freedom of marine scientific research and the use and conservation of living resources, as well as the prevention, reduction and control of pollution of the marine environment, including ice covered areas.
Of particular importance for the protection of the Arctic Ocean are the efforts to conclude an UNCLOS Implementing Agreement concerning the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
In conjunction with dialogue and cooperation, the Federal Government regards current international law, including UNCLOS, as a basis for the settlement of territorial and demarcation conflicts also in the regional and international context.
The Federal Government is committed to legally binding regulations for the exploration and extraction of mineral resources. It considers it necessary to set the highest environmental standards, to develop multinational strategies for protecting the environment in the event of accidents and to establish a binding regime for environmental damage and liability.
The Federal Government is committed to the protection of freedom of navigation in Arctic waters in accordance with the regulations of UNCLOS.
A number of Arctic states are actively pursuing their claims to an extended continental shelf in accordance with UNCLOS. The Federal Government is committed to ensuring that these areas also remain accessible to scientific marine research for all disciplines. […].”
There are also some other noteworthy legally relevant statements in the Policy Guidelines. Thus, the Federal Government:
- “recognises the precautionary and polluter pays principles as fundamental principles of all environmental and economic activity in the Arctic
- is working internationally and regionally as an important player in the fight against marine litter and supports the development of a regional action plan including monitoring for the Arctic.
- is committed to all international and regional agreements and calls for compliance with legally binding regulations on the use and exploration of the Arctic
- supports multilateral cooperation, particularly in the Arctic Council, and is committed to resolving overlapping sovereignty claims in the Arctic in a cooperative manner under the premise of responsible action
- is working to maintain and expand free and responsible Arctic research, based on the firm belief that scientific findings made in the region are of fundamental importance for Arctic policy
- […] is committed, via the EU, to the conservation and sustainable use of living marine resources in the Arctic. The aim is to ensure the effective prevention of illegal, unreported and unregulated fishing in particular.
- is committed to the further designation of protected areas and quiet zones, as well as to the sustainable use of living marine resources in order to preserve the Arctic’s unique biodiversity
- […] endeavours to improve the framework conditions for coordinated, safe and environmentally compatible shipping in the Arctic, particularly within the framework of the International Maritime Organization
- recognises the special situation of indigenous peoples in the Arctic and supports their right to freedom, health and a self determined life in their homeland
- sees the need to exercise environmental responsibility with regard to the development of the Arctic’s natural resources against the backdrop of their current great economic importance […].”
The Policy Guidelines point to several gaps in the legal framework where the Federal Government considers more regulation necessary and expresses the Federal Government’s willingness to take further action. From the perspective of international law, the following aspects of the latest Policy Guidelines are particularly noteworthy:
- The Federal Government declares its commitment, “via the EU, to the conservation and sustainable use of living marine resources in the Arctic”. One example of this commitment is the “Agreement to prevent unregulated high seas fisheries in the Central Arctic Ocean” which was recently concluded between China, Denmark (for the Faroe Islands and Greenland), the European Union, Iceland, Japan, Canada, the Republic of Korea, Norway, Russia, and the United States, and to which Germany is bound through the European Union.
- The Federal Government reiterates its commitment to take action against marine litter. According to the Policy Guidelines, the Government “is working internationally and regionally as an important player in the fight against marine litter and supports the development of a regional action plan including monitoring for the Arctic.” Under Germany’s presidency, the G7 countries adopted the “G7 Action Plan to Combat Marine Litter” in June 2015 which was followed by the adoption of “the G20 Action Plan on Marine Litter” at the Hamburg Summit in 2017. Both action plans could pave the way for an international agreement on marine litter also covering the Arctic Ocean.
- The Federal Government was heavily involved in the negotiations of the International Code for Ships Operating in Polar Waters (Polar Code) which was developed under the auspices of the International Maritime Organization (IMO) as an amendment to the Convention for the Safety of Life at Sea, the Convention for the Prevention of Pollution from Ships, and the Convention on Standards of Training, Certification and Watchkeeping for Seafarers. While the Polar Code, which entered into force on 1 January 2017, establishes strict safety and environmental standards for shipping in polar waters, it still has several deficiencies and loopholes. For instance, the Polar Code does not apply to smaller ships like trawlers or yachts, and it does not apply to government vessels. Regulations on greywater and underwater noise pollution are also insufficient. The Federal Government therefore advocates “a further development of the Polar Code” which “should also aim to achieve a comprehensive environmental protection system that is binding for all ships in the Arctic in equal measure and also includes regulations on grey water and underwater noise pollution.”
- The Federal Government strongly supports preventive measures for ensuring protection against oil spills in the sensitive Arctic region and a complete ban on the transport of heavy fuel oil. In 2018, Germany, together with seven other States, initiated a discussion on the introduction of a ban on the transport of heavy fuel oil in the Arctic at the IMO. While twenty other IMO Member States expressed support for the ban, a final decision is still pending.
- The Federal Government also underlines the importance for the protection of the Arctic Ocean of the conclusion of “an UNCLOS Implementing Agreement concerning the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction”. Such an agreement is being currently negotiated under the auspices of the United Nations. Germany has been a strong proponent of this project from the beginning.
- The Federal Government states its commitment “to the indigenous people of the Arctic, in particular to respecting and recognising their right to freedom and self determination.” It declares its intent to ratify ILO Convention 169 on the Protection of Indigenous Peoples. However, this has been a long-standing pledge that so far has not been acted upon and seems unlikely to be fulfilled in the foreseeable future.
On 20 August 2019, German Chancellor Angela Merkel met with the heads of governments of the Nordic countries. At a joint press conference after the meeting, the Chancellor stressed that Germany will continue to exert its influence to protect the Arctic region from overexploitation and destruction. She also admitted that Germany has probably not paid enough attention to the strategic aspects of Arctic policy but anticipated that this would change in the near future.
The latest Arctic Policy Guidelines provide evidence of Germany’s awareness of the ever-increasing strategic importance of the Arctic region. It is to be welcomed that Germany does not only expresses concern with regard to the environmental harm which a further increase in economic activities could cause to the pristine area but that it also advocates for more restrictive regulation. For that reason, the Federal Government explains how Germany could contribute to the protection of the Arctic through concrete measures on the national and international level and within the European Union.
Such a multilevel and multilateral approach is indispensable. Due to climate change, the Arctic is a region in constant transition. Environmental, economic and social conditions reflect these developments. This ongoing process certainly will not only have significant repercussions for the Arctic itself but also for regions far beyond. Germany rightly emphasises in its Policy Guidelines “the joint responsibility of all actors for this sensitive region.”
Germany also rightly acknowledges that the present set of legal instruments applicable to the Arctic do not suffice to address the changes and challenges the region is facing. It was thus only logical for Germany to overhaul its old Arctic Strategy (“Assume responsibility, seize opportunities”), which the Federal Government had adopted in 2013. However, it remains to be seen whether and how these new Guidelines are implemented in practice and to what extent Germany can influence the legal and other developments relating to the Arctic.
Category: Law of the sea