of Alaska.
10 Here, Article 8 outlines the provisions for the use of natural resources,
which includes wildlife. No differentiation is made between indigenous or
non-indigenous Alaskans and the principle of ‘common use’ is constitutionally
enshrined. Breaking with this principle in the polar bear agreement would consequently be unconstitutional in Alaska. As a consequence, the language used refers to
traditionality and not to ethnicity. In Svalbard, Norway, this has led to claims by
Norwegians living in Svalbard to be considered under this exception. The Norwegian government, however, made clear that hunts conducted by temporary workers
in weather stations or elsewhere in Svalbard would not be considered ‘traditional’
and consequently dismissed these claims.
With the trickiest legal language issues out of the way, the negotiations also
focused on the nexus of management and polar bear research. Since a top-down
approach was not the most aspired means to achieve the objective of conserving
polar bears, it was agreed to somewhat scale down the provisions on research and
management cooperation. While the agreement itself is legally binding and thus the
language used is that of obligation (‘shall’), the qualifiers such as ‘as appropriate’ or
‘as may be necessary’ essentially leaves it to the party to decide based on particular
circumstances.
11
An important feature of the Polar Bear Agreement is Article II. The article is in
principle an advancement of the earlier resolution on the protection of seals although
it does not mention seals at all. Instead, the article requires the parties to protect “the
ecosystems of which polar bears are a part,” making the ecosystem approach a
legally binding principle in an international agreement. As an international norm the
ecosystem approach would emerge only as part of the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro (Rio Conference). Ultimately, the ecosystem approach would find its way into the Convention
on Biological Diversity (CBD)
12 and many subsequent agreements. The Polar Bear
Agreement was therefore a forerunner in this regard and underlines its
progressiveness.
The Agreement for the Conservation of Polar Bears was signed in its present form
on 15 November 1973 by all states except for the Soviet Union since the Soviets did
not have authorisation to sign any agreement. One of the requirements for the
agreement to enter into force was the ratification of three parties. Canada ratified
the agreement in 1974, followed by Norway in 1975. With the Soviet Union’s
signature and immediate ratification in 1976, the Polar Bear Agreement entered
into force. The United States ratified it in the same year while Denmark was the last
one to do so in 1978. To underline Arctic sovereignty, the Polar Bear Agreement was
only open for signature for the five polar bear range states. Other countries, which
might also be involved in the hunt for polar bears were excluded from the agreement.
10 Constitution of the State of Alaska, 24 April 1956.
11 See for example Polar Bear Agreement, article VI, VII, VIII.
12 Convention on Biological Diversity, 5 June 1992 (1760 UNTS 79).
7.3 Finding Common Ground: The 1973 Polar Bear Agreement
163
10 Here, Article 8 outlines the provisions for the use of natural resources,
which includes wildlife. No differentiation is made between indigenous or
non-indigenous Alaskans and the principle of ‘common use’ is constitutionally
enshrined. Breaking with this principle in the polar bear agreement would consequently be unconstitutional in Alaska. As a consequence, the language used refers to
traditionality and not to ethnicity. In Svalbard, Norway, this has led to claims by
Norwegians living in Svalbard to be considered under this exception. The Norwegian government, however, made clear that hunts conducted by temporary workers
in weather stations or elsewhere in Svalbard would not be considered ‘traditional’
and consequently dismissed these claims.
With the trickiest legal language issues out of the way, the negotiations also
focused on the nexus of management and polar bear research. Since a top-down
approach was not the most aspired means to achieve the objective of conserving
polar bears, it was agreed to somewhat scale down the provisions on research and
management cooperation. While the agreement itself is legally binding and thus the
language used is that of obligation (‘shall’), the qualifiers such as ‘as appropriate’ or
‘as may be necessary’ essentially leaves it to the party to decide based on particular
circumstances.
11
An important feature of the Polar Bear Agreement is Article II. The article is in
principle an advancement of the earlier resolution on the protection of seals although
it does not mention seals at all. Instead, the article requires the parties to protect “the
ecosystems of which polar bears are a part,” making the ecosystem approach a
legally binding principle in an international agreement. As an international norm the
ecosystem approach would emerge only as part of the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro (Rio Conference). Ultimately, the ecosystem approach would find its way into the Convention
on Biological Diversity (CBD)
12 and many subsequent agreements. The Polar Bear
Agreement was therefore a forerunner in this regard and underlines its
progressiveness.
The Agreement for the Conservation of Polar Bears was signed in its present form
on 15 November 1973 by all states except for the Soviet Union since the Soviets did
not have authorisation to sign any agreement. One of the requirements for the
agreement to enter into force was the ratification of three parties. Canada ratified
the agreement in 1974, followed by Norway in 1975. With the Soviet Union’s
signature and immediate ratification in 1976, the Polar Bear Agreement entered
into force. The United States ratified it in the same year while Denmark was the last
one to do so in 1978. To underline Arctic sovereignty, the Polar Bear Agreement was
only open for signature for the five polar bear range states. Other countries, which
might also be involved in the hunt for polar bears were excluded from the agreement.
10 Constitution of the State of Alaska, 24 April 1956.
11 See for example Polar Bear Agreement, article VI, VII, VIII.
12 Convention on Biological Diversity, 5 June 1992 (1760 UNTS 79).
7.3 Finding Common Ground: The 1973 Polar Bear Agreement
163