Arctic Yearbook 2015 - Page 264

The ‘Common Arctic’: Legal Analysis of Arctic & non-Arctic Political Discourses Kristin Bartenstein This paper takes a closer look at the references to commonality, which are a salient, albeit ambiguous feature of the current discussion on Arctic governance. It does so from a legal perspective and with the purpose to unveil a twofold divide in the discussion. Legal and political purposes intersect and they vary depending on whether they are made from an Arctic or a non-Arctic perspective. Despite similar rhetoric, intentions may differ greatly and it is not unusual that different players refer to the law in irreconcilable or controversial ways. In a first step, the variety of references to commonality is charted and the underlying rhetorical strategies are carved out. In a second step, the references’ legal accuracy and their conceptual contribution to the development of a legal framework for Arctic cooperation are analysed. This should enable a better understanding of the diverging intentions and strategies at play in the discussion and the difficulties to reach a common understanding of how to govern the Arctic region. Introduction The idea that certain areas, resources, interests and concerns can be common was embraced rather recently in public international law. As a consequence of the ‘Westphalian’ conception of international law as a regulatory means to govern relations between sovereign States, the international legal order is characterized by mainly “relative” (Verdross 1965: 126), decentralized law-making and enforcement. In the absence of a central authority, interstate negotiation and cooperation have proven indispensable for the States’ common interests to emerge and to be addressed (Brunnée 2008: 551). Environmental protection is a field where the shift from bilateralism to “community interests” is particularly marked (Simma 1994: 235 et s.). International environmental law developed from a classic bilateral law in its earliest manifestations (Trail Smelter case, 1938 and 1941) towards a law based on community concerns thanks to rising awareness, starting in the 1960s, that resources are finite and that pollution problems are often of a global nature (Simma 1994: 238 et s.). These community interests notwithstanding, state sovereignty remains key in interstate relations. Kristin Bartenstein is a Professor of Law at Université Laval, Québec, Canada. This is a partly changed and updated version of an article that appeared in the 2015:1 China Oceans Law Review both under the title “Commonality and Arctic Governance: Global and Regional Perspectives” and under the title 从全球和区域角度看公共性和北极治理.