The history of international cooperation

Both polar regions have rich histories of international cooperation aimed at addressing needs for governance. There is every reason to celebrate the evolution of international cooperation in Antarctica over the decades since the signing of the AT. This is a remarkable achievement. It has frozen the jurisdictional claims of Argentina, Australia, Chile, France, New Zealand, Norway, and the UK to slices of the continent and established a solid practice of treating Antarctica as an international space. Yet the Arctic, too, has a history that includes significant achievements in the realm of institutionalised international cooperation. In at least one case, the Arctic experience appears to have played a role in inspiring those working to forge the terms of the 1959 Antarctic Treaty.

It is fair to say that the 1911 North Pacific Sealing Convention, a legally binding agreement among Great Britain (on behalf of Canada), Japan, Russia, and the United States that regulated all harvesting of north Pacific fur seals in the Bering Sea, created the first modern international regime aimed at the conservation of wildlife. Coming well before the establishment of Exclusive Economic Zones (EEZ) under the terms of the 1982 UN Convention on the Law of the Sea (UNCLOS), this regime was remarkable in two regards. First, it applied to areas extending beyond the jurisdiction of the relevant coastal states (Russia and the United States). Second, it established a unique arrangement under which the parties agreed that all harvesting of fur seals would be carried out onshore by nationals of the range states, with Canada and Japan as the interested distant water states receiving a share of the annual harvest of sealskins in return for refraining from taking seals at sea. Most analysts of this regime have concluded that it played an important role in the revival of the fur seal population in the decades following its creation. The parties discontinued this regime in 1984–1985 due to the advent of EEZs together with major changes in the Bering Sea ecosystem.

The 1973 agreement on the conservation of polar bears, another regime created under cold war conditions, marks an important stage in the transition from agreements inspired by the idea of achieving sustainable yields from living resources to arrangements sharply limiting the harvesting of wildlife to serve human purposes. An agreement among the five range states, the polar bear regime also entered into force prior to the creation of EEZs. In effect, the Arctic coastal states simply asserted their authority to manage polar bear stocks throughout their range regardless of the legal status of relevant portions of the Arctic Ocean. Although the impacts of climate change in the Arctic are now thought to pose serious threats to the well-being and even the survival of polar bears, there is general agreement that the polar bear regime has worked well as a mechanism to encourage cooperation among the range states on the development and implementation of measures designed to manage human activities likely to impact the condition of this species.

Another Arctic regime, that may well have inspired some of the ideas included in the Antarctic Treaty, is the governance system for the Svalbard Archipelago articulated in the provisions of the 1920 Treaty of Spitsbergen. This regime recognises the sovereignty of Norway over the archipelago. But it has a number of features that have the effect of circumscribing Norwegian sovereignty in this area. The regime calls for the demilitarisation of the archipelago, the granting of access to the resources of the area on terms that are equal to those applying to Norwegian nationals, and the acceptance of limitations on the taxing authority of Norway in Svalbard. While this arrangement does not turn Svalbard into an international space, it has shown convincingly that the international community can impose significant limitations on the sovereignty of states in cases where there are significant international interests to be protected.

There is no comprehensive governance system for the Arctic comparable to the arrangements set forth in the ATS for the south polar region. But it would be a mistake to exaggerate the significance of this difference. The land mass of the Arctic lies firmly within the jurisdiction of the Arctic states which have created a variety of management regimes governing human activities occurring in areas within their jurisdiction. The Arctic coastal states also exercise effective authority within the EEZs located adjacent to their coastlines. What is more, the ATS does not address all matters that are important to the future of Antarctica. UNCLOS, for example, applies to all the waters adjacent to the coasts of Antarctica. The Polar Code, a mandatory regulatory system for ships operating in polar waters, now emerging under the auspices of the International Maritime Organization, will apply to Antarctic waters as well as Arctic waters. It is expected to enter into force on 1 January 2017 in the form of a series of amendments to the International Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the Prevention of Pollution from Ships (MARPOL). The Montreal Protocol addresses the problem of ozone depletion in the stratosphere above Antarctica. The impacts of climate change and the loss of biological diversity in Antarctica are dealt with under the terms of the UN Framework Convention on Climate Change and the Convention on Biological Diversity. While it is true, therefore, that the AC is a much more limited arrangement than the regime established under the terms of the ATS, there are good reasons to think in terms of the concept of regime complexes in assessing the overall picture regarding governance in both polar regions.

Institutional innovation

The governance arrangements operating in both polar regions have prominent features that are regarded justifiably as innovative and that may have implications for addressing similar concerns in other areas. Perhaps the most ingenious feature of the ATS is the formula articulated in article 4 of the AT regarding the status of jurisdictional claims on the part of the claimant states. This formula ensures that nothing occurring under the auspices of the treaty regime can either diminish or augment the preexisting jurisdictional claims of those states that had announced claims to slices of the continent prior to agreement on the terms of the AT. In the unlikely event of a collapse of the ATS, these claimant states would be in a position to resurrect their jurisdictional claims. Although the situation is somewhat opaque legally, they might be justified in adding claims to EEZs in the coastal waters adjacent to their territorial claims. But the actual effect of the formula articulated in Article 4 has been to turn Antarctica for all practical purposes into an international space. In effect, human activities occurring in the entire area are now subject to a system of governance developed and implemented collectively by the members of the treaty system.

Article 7.2 of the AT allows the parties to designate observers who ‘shall have complete freedom of access at any time to any and all areas of Antarctica.’ Because the most significant human activities occurring in this area involve the work of scientists and those responsible for operating the research stations established to support scientific activities, the stations have taken on a role of particular importance with regard to the implementation of the provisions of this regime. In effect, Article 7 authorises designated personnel from any research station in Antarctica to visit any other station without requesting permission or making elaborate advance preparations. This ingenious arrangement has the effect of giving those responsible for the management of stations a strong incentive to operate in a manner that complies with the provisions of the regime, without requiring any great effort to carry out a large scale programme of actual visits.

Beyond this, the provisions of CCAMLR regarding the maintenance of marine ecosystems are widely regarded as one of the earliest efforts to introduce the practice of ecosystem-based management on an international scale. Thus, Article 2.c calls for the prevention of changes in marine ecosystems that ‘[. . .] are not potentially reversible over two or three decades.’ This constitutes a major step beyond the prior practice of calling for the achievement of maximum sustainable yields from harvested species. But it is also important to note that actual experience with the administration of this provision has made it clear how challenging it is to translate the appealing idea of ecosystem-based management from paper to practice.

Though they differ in substance, the governance arrangements that have evolved in the Arctic also encompass significant institutional innovations. The idea that the range states can exert authority over human activities relating to living marine resources beyond the boundaries of national jurisdiction is novel and potentially controversial. In the case of fur seals, it led to a ban on pelagic harvesting, a measure considered necessary to halt the sharp decline of fur seal populations at the time caused by the harvest of breeding females. Although the creation of EEZs has changed the need for such assertions of authority, arrangements of this sort are still significant with regard to other species such as polar bears that roam widely in Arctic waters and to potential fisheries in the central Arctic Ocean (CAO) beyond the boundaries of the EEZs of the coastal states. It is noteworthy that the high seas of the CAO encompass some 2.8 million km², an area as large as the Mediterranean Sea. In July 2015, the five Arctic coastal states adopted a declaration concerning the prevention of unregulated high seas fishing in the central Arctic Ocean. If it becomes necessary to adopt new measures to protect polar bears in the face of the impact of climate change, coordinated actions on the part of the range states are likely to take on increased importance.

The striking feature of the arrangement for Svalbard is the combination of the recognition of Norwegian sovereignty with the acceptance on the part of Norway of substantial limitations on the exercise of its sovereignty. The guarantees of access on the part of nationals of other countries and the restrictions on Norwegian taxing authority are particularly significant in this regard. Devised originally with the interests of business, for example coal companies, in mind, these provisions now make the archipelago an attractive base of operations for scientists from many nations. The research complex at Ny Ålesund now includes research stations operated by ten nations. The larger significance of this arrangement is the clear demonstration that sovereignty is devisable in situations where members of international society are prepared to enter into agreements imposing well-defined limits on the sovereignty of specific states.

The AC offers another example of institutional innovation with clear implications for international society. Although the formal members of the council are the eight Arctic states, the founding document creates the status of permanent participants (PP) for indigenous peoples’ organisations representing transnational indigenous groups or multiple indigenous groups within a single country. There are now six such participants representing indigenous peoples’ concerns in the work of the council. In formal terms, only the eight member states have the right to vote on measures taken up by the council. But in practice the council operates on the basis of consensus, and participation on the part of representatives of the PPs in virtually all activities of the council has become an established practice. The significance of this arrangement lies in its acknowledgement that non-state actors can sit at the table with states and have a more-or-less equal voice in the affairs of an intergovernmental body.

Membership

Those responsible for the operation of both the ATS and the AC have worked hard to find ways to restrict membership in these arrangements. The creators of the governance arrangements operating in both polar regions have struggled to find effective ways to restrict membership to a limited set of states deemed to have legitimate interests in the management of these regions. In the case of Antarctica, the founders introduced a distinction between Antarctic Treaty Consultative Parties (ATCPs), with the right to vote in AT consultative meetings, and other parties, with the right to observe but not to vote in meetings. According to article 9.2 of the AT, in order to qualify for consultative-party status, a state must demonstrate ‘[. . .] its interest in Antarctica by conducting substantial scientific research activity there.’ With this formula, which reinforces the proposition that the conduct of science is and should be regarded as the principal human activity in Antarctica, the twelve signatories to the AT sought to impose sharp restrictions on the membership of this regime without proposing an ironclad limit on the size of the membership.

The ministerial declaration establishing the AC, by contrast, states clearly and emphatically that membership is limited to the eight Arctic states. In fact, this formula represents a concession on the part of states like Russia advocating a limit on membership to the five Arctic coastal states (Canada, Denmark/Greenland, Norway, Russia, and the U.S.) to others committed to allowing Finland, Iceland, and Sweden to become members of the council. There is no provision in this system for non-Arctic states to become members of the council. They are relegated to the status of non-Arctic state observers who must apply for observer status and, in the process, acknowledge the legitimacy of the restriction of membership to the eight Arctic states. Interestingly, the category of AC observers also includes international organisations like the United Nations Development Programme or the United Nations Environment Programme and nongovernmental organisations such as the World Wildlife Fund or the University of the Arctic.

Not surprisingly, issues of membership have been a source of continuing controversy in both systems. In the case of Antarctica, pressures to open up the regime to additional members based on the proposition that the continent is and should be treated as part of the common heritage of humankind grew relentlessly over the years following the entry into force of the AT in 1961. By the 1980s, this pressure had become irresistible, resulting in a de facto reinterpretation or relaxation of the provisions of article 9 dealing with the qualifications for membership. Today, there are 51 parties to the AT, 29 of which are consultative members with voting status. Together, the signatories to the treaty represent the bulk of the world's human population. In the case of the AC, the eight Arctic states have succeeded so far in holding the line on membership, arguing that the criterion of geographical location is determinative when it comes to qualification for membership in the council. But it is far from clear whether this argument will prevail indefinitely. So far, twelve non-Arctic states and twenty non-state organisations have been granted observer status in the council. A number of these states, including China and the UK, have taken to describing themselves as near-Arctic states and become increasingly vocal about what they see as the restrictive attitudes of the Arctic eight amounting to the establishment of an exclusive Arctic club. It seems clear that the shifting configuration of power in international society will play an important role regarding the treatment of this issue in the future. Certainly, we have not heard the end of this story yet.

The role of science

Science has played a key role in the development and maintenance of international cooperation in both polar regions since the launching of the first International Polar Year (IPY) in 1882–1883. The first IPY involved twelve expeditions to the Arctic and three to Antarctica. The second IPY in 1932–1933 increased participation from twelve to 44 nations, despite the fact that it occurred during the midst of the Great Depression. The third IPY changed into the International Geophysical Year (IGY) of 1957–1958 with participants from more than 70 countries. The work of the IGY is widely regarded as an important stimulus for the final push to reach agreement on the terms of the AT. It led also to the creation of the Scientific Committee on Antarctic Research (SCAR), formally a committee of the International Council of Science (ICSU) and a body that has played an influential role in cementing the strong link between science and policy in Antarctica. The most recent IPY (2007–2009), organised under the auspices of the ICSU, was notable both for the comprehensiveness of its coverage of both polar regions and for an effort to include the human dimensions of polar systems.

The close connection between science and policy in Antarctica is well known. Article 2 of the Antarctic Treaty's Environmental Protocol of 1990, for example, designates ‘Antarctica as a natural reserve, devoted to peace and science.’ Article 7 goes on to state that ’[a]ny activity relating to mineral resources, other than scientific research, shall be prohibited.’ Over the years, 31 countries have established 69 research stations in Antarctica, lending substance to the assertion that Antarctica has become a continent for science. Research carried out at these stations has produced new knowledge that has played a central role in the development of multilateral environmental agreements. A particularly prominent example centres on the seasonal thinning of the stratospheric ozone layer, first documented by scientists from the British Antarctic Survey working in Antarctica, that gave rise to the development of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, widely regarded as the most successful international environmental agreement to date.

Perhaps less well known is the role that science has played in the development of governance systems relevant to the Arctic. The links between the International Arctic Science Committee, established in 1990, and the AC are not as close as those between SCAR and the ATS. But the AC itself has a collection of working groups whose activities are science intensive. The Arctic pollution issues: a state of the Arctic environment report, produced by the Arctic Monitoring and Assessment Programme (AMAP), played an important role in documenting the impacts of contaminants in the Arctic and in energising the negotiations that led to the 2001 Stockholm Convention on Persistent Organic Pollutants. The Arctic climate impact assessment, produced jointly by the AC and the International Arctic Science Committee, not only documented the impacts of climate change in the Arctic, it also served to lend empirical content to the debate about the impacts of climate change worldwide. In general, the rapid and often surprising course of biophysical changes in the Arctic, for example, the collapse of sea ice in the Arctic Basin in 2007, has had the effect of highlighting the role of scientific monitoring and assessment as an essential ingredient in identifying emerging issues and framing them for consideration in the policy process.

Jurisdictional juggling

The architects of international cooperation in both Antarctica and the Arctic have demonstrated remarkable agility in circumventing intractable jurisdictional problems. The AT exemplifies success in the art of jurisdictional juggling. The formula articulated in article 4 must rank as one of the most successful initiatives of modern times allowing international cooperation to thrive in the face of intractable jurisdictional issues. No doubt, the fact that the superpowers of the time (the United States and the Soviet Union) had not asserted jurisdictional claims to slices of the continent but were united in a desire to separate Antarctica from the reach of the cold war was critical. They were able to take the lead and devise a governance system that the claimant states would have found difficult to reject. And it is important to note that the treaty did not extinguish the jurisdictional claims of the claimant states. They would be entitled to reassert their claims in the event of the collapse of the ATS. This undoubtedly explains why these states have gone through the motions of claiming EEZs and setting forth claims to extended continental shelves adjacent to their claims as envisioned under the terms of article 76 of UNCLOS. Under the AT, these claims have no legal force. But it might prove helpful to have gone on record regarding such claims in the event that the arrangement set forth in article 4 breaks down.

Because there is no comprehensive treaty for the Arctic, the situation in the north is different. But this does not mean that jurisdictional juggling is less important in the Arctic. One controversial issue centres on the jurisdictional status of the northwest and northeast passages. Canada and Russia respectively argue that these passages are internal waters and therefore not subject to the right of transit passage under UNCLOS. But other states, led by the U.S., assert that these passages are straits as defined in article 36 of UNCLOS which defines straits as waters ‘[. . .] used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.’ The basic response to this intractable problem has been an agreement to disagree. In 1988, for example, the U.S. and Canada negotiated an agreement regarding the use of the northwest passage by American icebreakers in which the U.S. agreed to seek permission for such voyages, but the two sides also agreed that this procedure would not prejudice their conflicting claims regarding the legal status of the passage. Another Arctic example involves overlapping claims to sections of the seabed in the central Arctic Ocean on the part of Canada, Denmark/Greenland, and Russia. All three states have developed evidence to support their claims and submitted (at least preliminary) claims to the Commission on the Limits of the Continental Shelf (CLCS) established under article 76 of UNCLOS. Most recently, in August 2015, the Russian Federation submitted to the commission a more fully documented revision of its original 2001 claim to jurisdiction over a portion of the Arctic seabed. They have agreed to wait patiently for the commission to evaluate the persuasiveness of these claims, though it is widely understood that the commission may not get around to reaching conclusions for years and perhaps as much as one to two decades. In effect, this procedure defuses conflict over these jurisdictional claims and allows the parties to cooperate regarding Arctic maritime issues, while at the same time preserving their claims should they become relevant at some future time.

Relations with the United Nations system

Those responsible for the creation and operation of regional governance systems in both Antarctica and the Arctic have made a concerted effort to keep these arrangements outside the ambit of the United Nations and neither operates under the auspices of the UN. All the components of the ATS are free-standing arrangements not linked in any way to the UN despite the fact that they govern the region as an international space. For its part, the AC operates on the basis of a ministerial declaration that is not legally binding. The eight Arctic states have shown no interest in engaging UN bodies beyond the level of observers in the work of the council. Of course, some global agreements apply to the polar regions just as they do to the rest of the world. These include, the Convention on the Law of the Sea, the Montreal Protocol on Substances that Deplete the Ozone Layer, the Framework Convention on Climate Change, and the Convention on Biological Diversity. A particularly interesting recent development is the negotiation of the Polar Code regulating commercial shipping under the auspices of the International Maritime Organization (IMO), a specialized agency of the UN. Nevertheless, it remains true that those responsible for governance in the polar regions have sought to maintain an arms-length relationship with the UN to the extent possible.

The politics of this situation are not hard to identify. The U.S. brokered the AT as a political deal between the superpowers (who were not claimant states) and the claimant states to maintain peace in the region with control vested in an exclusive club of twelve states. With the passage of time, non-members, such as Malaysia and India, not only sought to gain entry into the Antarctic club but also devised a strategy of bringing this issue up for debate within the UN as a means of exerting pressure on the members of the AT to adopt a more open policy. What happened in the end was a deal to keep the ATS outside the ambit of the UN in return for agreement to open the doors of the Antarctic club to new members on the basis of relaxed criteria for membership. The result is somewhat unusual but for the moment politically stable. The members of the ATS represent the bulk of the world's population, but the regime continues to operate outside the purview of the UN. It is possible that this bargain will collapse in the future, especially if powerful pressures emerge to exploit natural resources in Antarctica. But a move in this direction does not seem imminent at this writing.

The political situation in the Arctic is equally easy to grasp, though it is harder to foresee how Arctic politics will evolve. The Arctic states (a group that includes both Russia and the U.S.) regard the Arctic as their turf, though the waters of the Arctic Ocean are subject to the provisions of the law of the sea. This means, among other things, that the waters of the central Arctic Ocean have the status of high seas under international law, so they are open to maritime activities on the part of non-Arctic states and their nationals. The Arctic states therefore have no intention of allowing outsiders to gain a formal voice in making decisions about Arctic issues. There are exceptions to this proposition. As mentioned, the Polar Code is developing under the auspices of a UN specialised agency, and, apart from the United States as not being a party to UNCLOS, the Arctic coastal states seem comfortable in resorting to the UN's Commission on the Limits of the Continental Shelf to evaluate their claims to extended jurisdiction over the seabed in the Arctic Ocean. Moreover, political changes could alter this situation. The emergence of Greenland as a sovereign state or a dramatic increase in Chinese investments in Greenland, Iceland, or Russia, for example, would bring about significant changes in the configuration of power underlying the existing governance system for the Arctic. Even so, it is not easy to develop a credible scenario under which these or other plausible developments would bring about a situation under which a substantial role for the UN in Arctic governance would emerge.

Institutional interplay

Governance in both Antarctica and the Arctic encompasses a number of distinct elements, putting a premium on efforts to address problems of institutional interplay effectively. A striking feature of the institutional arrangements that have evolved to meet needs for governance in Antarctica is the integration of this complex within the ATS. As a result, governance in Antarctica operates considerably further along the fragmentation–integration spectrum than comparable arrangements in other regions. This is often identified as an exemplary feature of governance in Antarctica to be emulated in other regions to the extent possible. But it would be a mistake to carry this line of thinking too far. The ATS encompasses several treaties that differ in terms of spatial coverage, membership, and guiding principles. Perhaps more important is the fact that a number of other regimes are applicable to Antarctica. These include the UNCLOS and a variety of more specific arrangements dealing with marine matters, such as the whaling regime, the London Dumping Convention, and the newly developed mandatory Polar Code covering commercial shipping. More generally, global regimes, such as those dealing with ozone depletion, climate change, and biological diversity, all apply to Antarctica just as they do to others parts of the world. Because there are no industrial activities taking place on land in Antarctica, the focus on sustainable development is less prominent in this governance system than in its Arctic counterpart. Nonetheless, it is clear that success in meeting the goals for Antarctica articulated in the provisions of the ATS requires a sophisticated capacity to address issues of institutional interplay effectively.

The existing governance system for the Arctic falls considerably further toward the fragmentation pole of the fragmentation–integration spectrum. The domestic arrangements of the eight Arctic states apply to the land areas of the region along with the associated EEZs. The coverage of the AC is limited to matters of environmental protection and sustainable development. Its remit explicitly excludes matters of military security. Economic matters like the regulation of commercial shipping are the responsibility of other governance systems. Matters pertaining to the central Arctic Ocean require consultation with other states entitled to operate in the area under the terms of the Convention on the Law of the Sea. Many initiatives involving economic development in the Arctic (for example oil and gas development) have taken the form of bilateral efforts involving specific countries and, in some case, multinational corporations and state-owned enterprises. As a result, institutional interplay is a prominent feature of the prevailing governance system in the Arctic.

Under the circumstances, it is not surprising that many observers and some policymakers contemplating the future of Arctic governance have argued that what is needed in the Arctic is a comprehensive, treaty-based arrangement reminiscent of the ATS. Despite the superficial attractions of this idea, however, there is little prospect of such an arrangement emerging in the Arctic. Unlike Antarctica, much of the Arctic lies securely within the jurisdiction of the Arctic states; the region is highly militarised; there are large-scale industrial activities located in the region, and the Arctic's permanent residents, especially its indigenous residents, are quick to assert their right to have a voice in any institutional arrangements developed to address Arctic issues. Any comprehensive arrangement for the Arctic would therefore be complex, difficult to negotiate, and likely to be limited to superficial provisions. Particularly notable in this regard is the open opposition of the Arctic coastal states, including Russia and the U.S., to any comprehensive treaty for the Arctic. Whereas the U.S. and the Soviet Union provided the impetus for reaching agreement on the terms of the AT in 1959, these countries (treating Russia as the successor to the Soviet Union) are squarely opposed to any analogous arrangement for the Arctic today.

Dealing with institutional interplay is a priority concern in both regions, though it is more critical in the Arctic than in Antarctica. This is a major challenge. There is little prospect of maintaining conditions of peace, prosperity, and sustainability in these regions in the absence of a concerted effort to address issues of ozone depletion, climate change, and threats to biological diversity. In this connection, it is heartening to note that research on institutional interplay more generally has concluded that there are often opportunities to avoid disruptive interference between or among regimes dealing with different issues. There are even cases in which institutional interplay has given rise to synergistic interactions. While institutional interplay presents a major challenge for those responsible for the implementation of governance systems in the polar regions, therefore, there is no reason to assume a gloomy attitude regarding the prospects of meeting this challenge successfully.

Institutional adaptiveness

The governance systems in both polar regions have demonstrated an ability to adapt to changing circumstances, a feature of increasing importance as we move deeper into the anthropocene. A prominent challenge of the anthropocene is the importance of developing a capacity to deal with complex systems in which non-linear processes are common, surprises are frequent, and decision-making under uncertainty is the order of the day. From the perspective of governance, this puts a premium on the development of nimble or adaptable institutions that can be adjusted relatively easily to address changing needs. This is a major challenge regarding the governance systems operating in both polar regions, though the nature of the challenge differs from one case to the other.

The AT has a provision that allows any contracting party to call for a meeting of the parties to consider the adoption of amendments at any time after the treaty has been in force for thirty years or from 1991 onward, since the treaty entered into force in 1961. But the parties have never used this provision, due in large part to a fear that such a meeting would open a Pandora's box of initiatives aimed at changing important provisions of the treaty. What has emerged instead is a process featuring punctuated equilibrium in which those responsible for managing the regime have responded periodically to mounting pressures to deal with challenges by adding distinct but related treaties or reinterpreting key provisions of the original treaty. The prospect of major fisheries opening up in Antarctic waters led to the negotiation of CCAMLR in 1980. Mounting pressure during the 1980s to expand the membership of the regime eventuated in a softening of the membership criteria set forth in article 9, thereby opening the regime to a sizable number of new members. The debate regarding whether to allow initiatives the could lead to economic development in Antarctica was resolved eventually through the adoption of the Environmental Protocol in 1990, with its implicit rejection of the prior arrangement set forth in the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which consequently never entered into force. Overall, the Antarctic experience with adaptation has emerged as a process characterised by avoidance of amendments to the text of the core treaty coupled with pragmatic reinterpretations of key provisions and the negotiation of supplemental agreements to address new challenges.

Because the Arctic lacks any equivalent of the AT, institutional adaptation has involved a more fluid process. Through the expedient of ministerial declarations, the parties created the AC to supersede the Arctic Environmental Protection Strategy in 1996; formed new working groups to address emerging issues such as the working group on sustainable development, established task forces to address focused issues, for example black carbon and methane, the role of business, and created a small permanent secretariat to provide administrative continuity in Tromsø, Norway. There is a growing sense today that the broader setting in which the AC operates is undergoing fundamental changes that will require major institutional adjustments if the council is to remain effective in responding to needs for governance in the Arctic. There is no consensus at this juncture regarding the nature of the adjustments that are needed. But when consensus on such matters does arise, it will not be necessary to resort to the cumbersome process of amending a legally binding treaty including the requirement for ratification on the part of individual member states. The parties can adopt whatever adjustments they conclude are needed through the simple expedient of incorporating them in a new ministerial declaration of the bi-annual ministerial meetings as the culmination of each chairmanship. While the lack of a legally binding foundation is understandably regarded as a weakness by some observers, the fact that it is relatively easy to adapt the main features of the Arctic regime to changing circumstances is an advantage in meeting needs for governance in a turbulent world.

Concluding thoughts

Many analysts regard the ATS as the gold standard within the domain of international governance. The AT took a remote region, subject to competing jurisdictional claims, and turned it into what is for all practical purposes an international space encompassing 2.75% of the surface of the planet. The facts that Antarctica had no permanent human population, no industrial activity, and no deployed military assets at the time certainly made the task of creating an effective governance system for the region easier. Nevertheless, the regime has succeeded in maintaining Antarctica as a region for nature and science. Along the way, it has responded effectively to a variety of challenges associated with the desire of outsiders to join the club and pressures to engage in prospecting for valuable natural resources. It is possible to identify threats to the resilience of this regime going forward. But at this stage no one has an interest in promoting changes that would generate a serious risk of disrupting this governance system. At the level of international society, this is a remarkable demonstration of the feasibility of governance without government.

It is tempting to think that a similar system could work in the Arctic. But this is clearly not the case. Much of the Arctic lies securely within the jurisdictional boundaries of the Arctic states. The region has a sizable population of permanent residents, encompasses world-class industrial developments, and is a theatre of operations for advanced military systems, including nuclear-powered submarines carrying sea-launched ballistic missiles. The governance system that has evolved in this region is considerably more fragmented than its counterpart in Antarctica. But it is important to note that this does not mean that this system is ineffective. Individual elements of the system, for example the arrangement created for Svalbard in the 1920 Treaty of Spitsbergen, have worked well. And the AC, created under the terms of a non-binding ministerial declaration, has played an important generative role in identifying emerging issues, framing them for consideration in policy arenas, and pushing them toward the top of the relevant policy agendas. In the Arctic, there are significant threats on the horizon. But the AC in particular is a flexible mechanism that has shown a considerable ability to adjust to changing circumstances over the last twenty years. It is important not to dismiss the accomplishments of the governance arrangements operating in the Arctic just because they do not conform to the classic model of governance exemplified by the ATS.

Be that as it may, the thesis of this essay is that there are significant parallels in the experience of the polar regions regarding international governance, despite the obvious differences between the Arctic and Antarctica with regard to the forms of international cooperation. In the final analysis, effective governance systems are those that are well-matched to the biophysical and socio-economic characteristics of the settings in which they operate. One size does not fit all. Nevertheless, experience with governance arrangements in Antarctica and the Arctic does suggest useful lessons regarding the importance of institutional innovation, the role of techniques for juggling jurisdictional tensions, the treatment of delicate questions relating to membership, the significance of finding effective means of managing institutional interplay, and the rising need for adaptiveness in a world of complex systems. The trick for those seeking to fulfill other needs for governance in international society is to apply these lessons in a manner that takes into account the unique features of individual cases rather than simply attempting to impose a governance system that works well in one setting on another setting that differs in a number of important respects.

Correspondence

Both the author and the Editor would welcome correspondence on the issues raised in this paper. Such contributions might be intended for publication in this journal or be private.