Polar Opposites: Assessing the State of Environmental Law in the World's Polar Regions

48 Pages Posted: 8 Sep 2017 Last revised: 20 Sep 2018

See all articles by Mark Nevitt

Mark Nevitt

University of Pennsylvania Law School; Georgetown University - Center on National Security and the Law

Robert V. Percival

University of Maryland - Francis King Carey School of Law

Date Written: May 2018

Abstract

Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet they differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System (ATS), a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets in Antarctica, melting polar ice caps in the Arctic, opening maritime trade routes and renewing the possibility for natural resource extraction. Will the Arctic experience a peaceful future similar to its sister polar region, or will it emerge as a polar “wild west” with increasing geopolitical tension between the Arctic states? Will a new polar Cold War emerge between Russia and the other four NATO Arctic coastal nations? This article addresses these questions—and others—while making three new contributions to legal scholarship. First, we closely examine the different legal models in both the Arctic and Antarctica, discerning what lessons the Antarctic Treaty System—one of the most successful international agreements in history—can be applied to the Arctic. Second, we analyze the unique significance played by global environmental law in the context of the polar regions, best embodied by the collaborative work of the Arctic Council. Third, in light of the uncertainty posed by climate change and the potential for rising geopolitical tensions, we provide a new framework to analyze the future Arctic governance to include the five key factors that will determine the Arctic’s future.

Keywords: Environmental Law, International Law, Natural Resources, UN Convention on the Law of the Sea, Arctic Council, Antarctic Treaty System, Convention on the Regulation of Antarctic Mineral Resource Activities, Madrid Protocol, Arctic Indigenous Peoples, Commission on the Limits of the Continental Shelf

Suggested Citation

Nevitt, Mark and Percival, Robert V., Polar Opposites: Assessing the State of Environmental Law in the World's Polar Regions (May 2018). Boston College Law Review, Vol. 59, Pg. 1655, 2018; U of Penn Law School, Public Law Research Paper No. 17-35; U of Maryland Legal Studies Research Paper No. 2018-28. Available at SSRN: https://ssrn.com/abstract=3033890

Mark Nevitt (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA 19104
United States

Georgetown University - Center on National Security and the Law ( email )

600 New Jersey Avenue N.W.
Washington, DC 20001
United States

Robert V. Percival

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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