the Arctic.
41 As the Arctic warms, the risk of environmental damage as a result of
increased human activities grows accordingly. Preventing harm and reducing disaster risks in the Arctic Ocean requires regulations based on Arctic know-how and that
take into account the needs of the people who live in the Arctic.
2.4 Who Regulates Activities Within the Arctic?
For the time being, there is no comprehensive legal regime that fulfills this need, but
the efforts undertaken by the Arctic Council show how this goal can be achieved.
The relevance of local knowledge and awareness also means that not only the
content of norms is relevant for their effectiveness but also the way in which
norms are produced. The regulations introduced so far—multilateral treaties and
regulations created within the frameworks provided by international treaties of the
IMO—have been created in global fora (in the widest sense of the term). Even
though Arctic States played a role in their creation and although these norms are
relevant for the Arctic Ocean, they are not ‘made in the Arctic’.
The question remains open as to whether Arctic Ocean is an enclosed or semienclosed sea within the meaning of Article 122 of the Law of the Sea Convention.
42
Although the Arctic Ocean fulfills the first requirement in Article 122, the second
requirement that it be “connected to another sea or the ocean by a narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive economic zones
of two or more coastal States”
43 remains ambiguous. Approximately 60% of the
surface of the Arctic Ocean is national EEZs and territorial seas. Whether this is
sufficient in order for the Arctic Ocean to qualify as “primarily” consisting of EEZs
is unclear.
44 The interpretation of Article 122 in the South China Sea Arbitration
Award
45 indicates that anything more than 50% may be sufficient to trigger the
applicability of Article 122 UNCLOS,
46 although this does not appear to be an
uncontested interpretation of Article 122, let alone a norm of customary international
law. It must be noted, in any case, that Part IX (Arts 122, 123) UNCLOS does not
give additional rights to coastal States beyond those they are entitled to under other
41 See Kirk and Miller (2018).
42 Proelss and Müller (2008), p. 684.
43 Art. 122, UNCLOS.
44 Pharand (2007), p. 53; Weidemann (2014), p. 84.
45 Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines
v. The People’s Republic of China), Case 2013-19, Award of 12 July 2016, https://pcacases.com/
web/sendAttach/2086.
46 Whomersley (2016), p. 241; referring to the maps on pp. 7 and 9 in Permanent Court of
Arbitration, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic
of China), Case 2013-19, Award on Jurisdiction and Admissibility of 29 October 2015, https://
pcacases.com/web/sendAttach/1506, which highlight the distance of 200 nm from the coastal
States’ coastlines.
66
T. Koivurova et al.
41 As the Arctic warms, the risk of environmental damage as a result of
increased human activities grows accordingly. Preventing harm and reducing disaster risks in the Arctic Ocean requires regulations based on Arctic know-how and that
take into account the needs of the people who live in the Arctic.
2.4 Who Regulates Activities Within the Arctic?
For the time being, there is no comprehensive legal regime that fulfills this need, but
the efforts undertaken by the Arctic Council show how this goal can be achieved.
The relevance of local knowledge and awareness also means that not only the
content of norms is relevant for their effectiveness but also the way in which
norms are produced. The regulations introduced so far—multilateral treaties and
regulations created within the frameworks provided by international treaties of the
IMO—have been created in global fora (in the widest sense of the term). Even
though Arctic States played a role in their creation and although these norms are
relevant for the Arctic Ocean, they are not ‘made in the Arctic’.
The question remains open as to whether Arctic Ocean is an enclosed or semienclosed sea within the meaning of Article 122 of the Law of the Sea Convention.
42
Although the Arctic Ocean fulfills the first requirement in Article 122, the second
requirement that it be “connected to another sea or the ocean by a narrow outlet or
consisting entirely or primarily of the territorial seas and exclusive economic zones
of two or more coastal States”
43 remains ambiguous. Approximately 60% of the
surface of the Arctic Ocean is national EEZs and territorial seas. Whether this is
sufficient in order for the Arctic Ocean to qualify as “primarily” consisting of EEZs
is unclear.
44 The interpretation of Article 122 in the South China Sea Arbitration
Award
45 indicates that anything more than 50% may be sufficient to trigger the
applicability of Article 122 UNCLOS,
46 although this does not appear to be an
uncontested interpretation of Article 122, let alone a norm of customary international
law. It must be noted, in any case, that Part IX (Arts 122, 123) UNCLOS does not
give additional rights to coastal States beyond those they are entitled to under other
41 See Kirk and Miller (2018).
42 Proelss and Müller (2008), p. 684.
43 Art. 122, UNCLOS.
44 Pharand (2007), p. 53; Weidemann (2014), p. 84.
45 Permanent Court of Arbitration, The South China Sea Arbitration (The Republic of Philippines
v. The People’s Republic of China), Case 2013-19, Award of 12 July 2016, https://pcacases.com/
web/sendAttach/2086.
46 Whomersley (2016), p. 241; referring to the maps on pp. 7 and 9 in Permanent Court of
Arbitration, The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic
of China), Case 2013-19, Award on Jurisdiction and Admissibility of 29 October 2015, https://
pcacases.com/web/sendAttach/1506, which highlight the distance of 200 nm from the coastal
States’ coastlines.
66
T. Koivurova et al.