polar bear agreement. It therefore informed the IUCN that it would be willing to host
the crucial meeting for a polar bear agreement in Oslo. The IUCN, in turn, officially
asked Norway to do so in early 1973. At this point, the agreement under discussion
was considered under temporary terms, which means that it was rather an Interim
Agreement than a full-scale, open-ended convention or other type of treaty. The draft
that was to be discussed at the November meeting was therefore named Protocol on
the Conservation of Polar Bears by the IUCN. Under international law, a protocol is
an addition to an already existing legal instrument, which in the case of polar bears
did not exist. In this sense, a protocol on the conservation of polar bears is legally
speaking misleading and would not correspond to the legal realities. The IUCN
aimed to avoid the term ‘convention.’ Given its legally-binding nature under international law, it would have been more appropriate, however. But given the
sensitivities of international law-making between the two blocs of the Cold War, a
set-in-stone convention was not considered suitable.
When the five Arctic nations finally met in Oslo, many issues had to be tackled.
Once again it must be borne in mind that formal Cold War negotiations were not an
easy task. Particular weight thus fell on informal negotiations in which especially the
Soviet delegation was able to present their views without having to formally do
so. This was especially the case since the Soviet delegates, in the formal setting,
indicated that they did not have the authorisation to sign any agreement under
negotiation. In informal settings, however, it was communicated to the other parties
that also the Soviets were hoping for the adoption of an agreement.
The problem, still, was to find legal language that would not affect any
negotiations under the law of the sea conference, which took place in parallel to
the polar bear meeting. Particularly language referring to territorial waters and the
high seas proved to be tricky. So the path for the conference to tread was to avoid
these issues altogether. It was therefore agreed to prohibit all taking of polar bears,
irrespective of where this taking was to occur. This meant that the agreed upon
language broadly states that “The taking of polar bears shall be prohibited.”
8 Five
exceptions to that blanket prohibition were inserted: for scientific purposes; for
conservation purposes; for marine management purposes to protect other living
resources and provided that the products deriving therefrom were not placed on
the market commercially; when polar bears are hunted by ‘local people using
traditional methods’; and “wherever polar bears have or might have been subject
to taking by traditional means by its nationals.”
9
The latter two exceptions were inserted primarily at the behest of the United
States and Canada as well as Denmark due to their respective Inuit population and
their centuries-old interaction with polar bears. As mentioned above, the term
‘indigenous’ or ‘native’ is absent in the legal language applied, making it theoretically possible also for non-indigenous hunters to make use of this exception. The
question why the terms were not used can be answered by looking at the Constitution
8 Polar Bear Agreement, article I.
9 Polar Bear Agreement, article III (e).
162
7 The International Legal Framework for Polar Bears
the crucial meeting for a polar bear agreement in Oslo. The IUCN, in turn, officially
asked Norway to do so in early 1973. At this point, the agreement under discussion
was considered under temporary terms, which means that it was rather an Interim
Agreement than a full-scale, open-ended convention or other type of treaty. The draft
that was to be discussed at the November meeting was therefore named Protocol on
the Conservation of Polar Bears by the IUCN. Under international law, a protocol is
an addition to an already existing legal instrument, which in the case of polar bears
did not exist. In this sense, a protocol on the conservation of polar bears is legally
speaking misleading and would not correspond to the legal realities. The IUCN
aimed to avoid the term ‘convention.’ Given its legally-binding nature under international law, it would have been more appropriate, however. But given the
sensitivities of international law-making between the two blocs of the Cold War, a
set-in-stone convention was not considered suitable.
When the five Arctic nations finally met in Oslo, many issues had to be tackled.
Once again it must be borne in mind that formal Cold War negotiations were not an
easy task. Particular weight thus fell on informal negotiations in which especially the
Soviet delegation was able to present their views without having to formally do
so. This was especially the case since the Soviet delegates, in the formal setting,
indicated that they did not have the authorisation to sign any agreement under
negotiation. In informal settings, however, it was communicated to the other parties
that also the Soviets were hoping for the adoption of an agreement.
The problem, still, was to find legal language that would not affect any
negotiations under the law of the sea conference, which took place in parallel to
the polar bear meeting. Particularly language referring to territorial waters and the
high seas proved to be tricky. So the path for the conference to tread was to avoid
these issues altogether. It was therefore agreed to prohibit all taking of polar bears,
irrespective of where this taking was to occur. This meant that the agreed upon
language broadly states that “The taking of polar bears shall be prohibited.”
8 Five
exceptions to that blanket prohibition were inserted: for scientific purposes; for
conservation purposes; for marine management purposes to protect other living
resources and provided that the products deriving therefrom were not placed on
the market commercially; when polar bears are hunted by ‘local people using
traditional methods’; and “wherever polar bears have or might have been subject
to taking by traditional means by its nationals.”
9
The latter two exceptions were inserted primarily at the behest of the United
States and Canada as well as Denmark due to their respective Inuit population and
their centuries-old interaction with polar bears. As mentioned above, the term
‘indigenous’ or ‘native’ is absent in the legal language applied, making it theoretically possible also for non-indigenous hunters to make use of this exception. The
question why the terms were not used can be answered by looking at the Constitution
8 Polar Bear Agreement, article I.
9 Polar Bear Agreement, article III (e).
162
7 The International Legal Framework for Polar Bears