Arctic Yearbook 2015 - Page 270

270 Arctic Yearbook 2015 adopted at the 2013 Arctic Council’s ministerial meeting held in Kiruna, Sweden, the eight Arctic states, after recalling that they have, among other things, “achieved mutual understanding and trust, addressed issues of common concern”, reassert their primacy over non-Arctic states in Arctic affairs. Consequently, they confirm that full membership in the Arctic Council and decision-making remains exclusively with them. They also reiterate their commitment to the law of the sea, acknowledging implicitly the coastal states’ pre-eminence regarding several issues. While accounting for their varying legal situations, the Arctic states clearly set themselves apart as a distinctive group with specific interests and concerns that warrant their predominant bearing on the region’s governance and in doing so, mean to ward off sweeping claims of cooperation coming from non-Arctic states. The law – and politics – of a ‘common Arctic’ There is little doubt that Arctic states are entitled to participate in Arctic decision-making. However, the opinion prevailing among non-Arctic states to the effect that international cooperation on the Arctic is warranted requires some scrutiny. The discourse promotes the idea of a ‘global common Arctic’ and often confirms explicitly that interstate relations regarding Arctic matters should take place within the existing legal framework. Yet, what precisely would make the Arctic a common issue from a legal perspective? What is the legal value and accuracy of references to the ‘common heritage of mankind’ and similar expressions? Is there any legal value to affirmations of the international community’s ‘interest’ or ‘concern’ regarding the Arctic? This part will provide some thoughts on these questions. Variations on the theme of ‘common heritage of mankind’ From a legal perspective, references to the ‘common heritage of mankind’ have potentially farreaching consequences, but it is questionable whether the concept is always referred to properly in the Arctic debate. Emerging amidst newly independent states’ growing concern for resource allocation and their nascent calls for better (economic) chances and a new international economic order (c.f. Declaration on the Establishment of a New International Economic Order 1974), it was put forward in 1967 by Arvid Pardo, a Maltese diplomat with the United Nations (Malta 1967; Pardo 1967). Pardo’s speech contributed to spark off negotiations that eventually led to the conclusion of the 1982 LOSC. The latter confers to the deep seabed – or “Area” – and its resources the status of common heritage of mankind (LOSC: article 136). The initial legal regime underwent substantial modification prior to the convention’s entry into force (Implementation Agreement 1994). However, the Areas’ status still entails that it is an international space (LOSC: article 137), that its exploitation is internationally supervised and that the resulting proceeds are subject to some measure of international redistribution, for the “benefit of mankind” (LOSC: article 140). The sharing of the benefits for the sake of equity among states and regardless of the individual state’s capacity to actually undertake resource exploitation is the most distinctive feature of the concept of common heritage of mankind (Lodge 2012). The concept’s language further imbeds the resource management in a long-term perspective: regardless of individual States’ capacity to exploit the resources at a given moment, all of humanity, present and future, should benefit from their wealth. Bartenstein