International Legal Norms for the Protection of the Marine Environments of the Arctic Ocean and the Southern Ocean as Considerations for International Humanitarian Law

37 Pages Posted: 12 Dec 2022

See all articles by Stefan Kirchner

Stefan Kirchner

University College Cork - School of Law

Date Written: November 18, 2022

Abstract

The security situation in Northern Europe has been changed fundamentally due to the escalation of Russia’s war against Ukraine since 24 February 2022. This makes it necessary to revisit and reevaluate legal norms that are of particular relevance in armed conflict. As the Arctic region has experienced a period of peace since the end of the (First) Cold War in 1991, the development of International Polar Law could build on a slowly emerging trust between Russia and the West. This trust has come to an end and institutions that have been built over the last decades now face an uncertain future. In this context, it remains to be seen how much of the progress that has been made can be salvaged. It is proposed here that International Polar Law has a, albeit modest, contribution to make when it comes to enhancing compliance with norms of International Humanitarian Law (IHL) with regard to the protection of the natural environment against the effects of armed conflicts. It will, however, be shown that, especially in the context of the protection of polar marine environments, general considerations severely limit this potential.

Armed forces have long operated in polar environments and continue to play different roles in polar settings. In recent decades, polar law has emerged as a distinct discipline in international law, comprised of international Arctic law and the international law of Antarctica. In this text, the reader will be introduced to some particular aspects of the international legal regulation of polar spaces and the protection of the natural environment through international law in times of armed conflict. It is the aim of the text to identify connections between International Environmental Law (IEL) and International Humanitarian Law, and to answer the question if and how international legal norms that aim to protect the natural environment (especially the marine environment) in polar regions may be utilized to enhance compliance with IHL in case of an armed conflict in polar regions.

To this end, the reader will be introduced to different types of threats to the natural environment experienced in polar regions and international treaties, documents created by international institutions, and academic writings will be analyzed. Special attention will be given to Polar Law and its two subsets, the international legal norms pertaining to Antarctica and the Southern Ocean and International Arctic Law (IAL) and to the existing governance structures for the Arctic, such as the Arctic Council (AC). The dramatic shifts in Arctic governance, away from cooperation between all eight Arctic states (A8) towards cooperation between the Arctic states minus Russia (A7 or West-Arctic) will be taken into account. It will be shown that the potential contribution to IHL by polar law is very limited and that some of the existing regulatory gaps can be closed but also that this possibility is largely theoretical as far as the risk of environmental pollution of the marine environment by warships is concerned.

Keywords: Polar, Arctic, Antarctica, international environmental law, international humanitarian law, Arctic Council, law of the sea, Russia

JEL Classification: K33

Suggested Citation

Kirchner, Stefan, International Legal Norms for the Protection of the Marine Environments of the Arctic Ocean and the Southern Ocean as Considerations for International Humanitarian Law (November 18, 2022). Available at SSRN: https://ssrn.com/abstract=4280516 or http://dx.doi.org/10.2139/ssrn.4280516

Stefan Kirchner (Contact Author)

University College Cork - School of Law ( email )

College Road
Cork, County Cork
Ireland

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