2.1. The Arctic Region and Climate Change

The Arctic is the polar region covering the Earth’s northernmost surface. It consists of the Arctic Ocean and parts of the US (Alaska), Canada, Denmark (Greenland and the Faroe Islands), Finland, Iceland, Norway, Sweden, and Russia.

All climate models predict that with the continuing growth of global greenhouse gas (GHG) emissions, the Arctic will continue to warm more quickly than the global average and experience losses in ice and snow cover.Footnote ¹⁴ Between 1980 and 2012, the Arctic summer sea ice lost approximately 75% of its volume and Greenland experienced melting in over 97% of its ice sheet surface.Footnote ¹⁵ This goes to show that climate change poses remarkable challenges to the region’s vulnerable ecosystems.

Climate change is also affecting the living conditions of about four million people living in the Arctic. Approximately 10% of the population consists of indigenous peoples whose hunting, fishing and herding activities are threatened by the changing weather conditions. Conversely, as a result of climate change new natural resources and economic opportunities will become availableFootnote ¹⁶ – for example, the exploitation of minerals and fisheries, as well as tourism, could increase as a result of the warming climate. The disappearance of Arctic sea ice could open areas to year-round navigation. Certain oil and gas reserves in the Arctic region are projected to become more attractive for exploration and exploitation with the changing climate.

2.2. Benefits of SLCP Mitigation

SLCPs include black carbon, methane, tropospheric ozone and some HFCs. Human activity has produced increases in air concentration of these substances, with impacts on both the global and the Arctic climate.Footnote ¹⁷ Methane and black carbon (soot), in particular, have a significant short-term warming effect. SLCPs also warm the Arctic by increasing overall global warming, which obviously also affects the Arctic region.Footnote ¹⁸

International climate policy efforts have focused on carbon dioxide (CO₂) as the most important GHG. Indeed, climate science shows that anthropogenic climate change cannot be effectively prevented without reducing CO₂ emissions to close to zero by the end of this century.Footnote ¹⁹ However, reducing CO₂ emissions requires a radical economic and energy transformation, which is proving difficult and time-consuming to achieve. While the Paris Agreement establishes ambitious goals, including that of holding ‘the increase in the global average temperature to well below 2°C [degrees Celsius] above pre-industrial levels’ and pursue ‘efforts to limit the temperature increase to 1.5°C above pre-industrial levels’, the world is not on track to meet these goals.Footnote ²⁰

According to estimates by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO), reducing SLCP emissions, especially methane and black carbon, could slow the rate of climate change by 0.5°C by 2040.Footnote ²¹ In the Arctic, avoided warming is estimated at 0.7°C.Footnote ²²

In addition to their warming impact, SLCPs are, in many cases, harmful air pollutants: aggressive efforts to cut these emissions could avoid 2.4 million premature deaths globally by 2030.Footnote ²³ SLCP emissions reductions would also have positive impacts on agriculture and ecosystems. Acting on SLCPs alone, the Arctic nations could make incremental progress towards reducing regional (and global) warming.Footnote ²⁴ By showing leadership, they could pave the way for enhanced global action, with clear benefits for the Arctic region.

2.3. SLCP Mitigation and the Arctic

Black carbon and methane are particularly significant pollutants in the Arctic context. Methane accounted for 16% of anthropogenic GHG emissions in 2010Footnote ²⁵ and is the second most important anthropogenic contributor to global warming after CO₂.Footnote ²⁶ Furthermore, it has the potential to cause global warming to an extent 34 times higher than that of CO₂ over a 100-year period.Footnote ²⁷ Climate models show that methane has warmed the Arctic climate by 0.5°C to date, which is approximately twice its impact on overall global warming.Footnote ²⁸ Methane stays in the atmosphere for approximately nine years and distributes itself throughout the global atmosphere,Footnote ²⁹ which means that reductions in its levels anywhere in the world can reduce Arctic warming.Footnote ³⁰

Oil and gas production accounts for approximately one third of global anthropogenic emissions of methane and is therefore the main contributor to this problem.Footnote ³¹ In terms of natural sources, wetlands are the main source of methane emissions globally.Footnote ³² They are particularly relevant for the Arctic region where melting of the permafrost may lead to a significant increase in methane emissions.

It has been estimated that half of global methane emissions that arise from human activity could be eliminated by 2030 through existing mitigation technologies.Footnote ³³ In geographical terms, the Arctic region has the largest technical abatement potential and Arctic countries could achieve one quarter of these reductions.Footnote ³⁴ Methane emissions could be reduced through changes in venting and flaring practices in oil and gas fields; reducing methane leakage during natural gas production, transport and distribution; separating or treating biodegradable waste instead of dumping it into landfills; and improving coal-mining practices.Footnote ³⁵

Black carbon is a component of fine particulate matter, formed through incomplete combustion of fossil fuels and biomass. Its lifetime in the atmosphere ranges from several days to weeks, which means that it is possible to achieve quick results through emissions reductions. Black carbon warms the Earth by absorbing both incoming and outgoing solar radiation.Footnote ³⁶ When deposited on ice and snow, it warms the climate by reducing the albedo effect: that is, the ability to reflect sunlight. Black carbon therefore plays an important role in the melting of Arctic snow and glaciers.

Sources of black carbon emit a complex mix of substances, some of which, such as organic carbon and sulphates, may cool the climate.Footnote ³⁷ This has led to some uncertainty concerning the climate change mitigation potential of black carbon. According to estimates by the AMAP for 2015, the warming impact of black carbon in the Arctic is comparable with that of methane, although the level of uncertainty is greater.Footnote ³⁸ Arctic nations are responsible for approximately 30% of Arctic warming as a result of their black carbon emissions.Footnote ³⁹ The remainder results from black carbon emissions outside the region, which impact on the Arctic through accelerated global warming.Footnote ⁴⁰

Key sources of black carbon emissions in Canada and Russia are forest, grassland and agricultural fires.Footnote ⁴¹ In the Nordic countries and the US, black carbon emissions originate mostly from the combustion of fossil fuels (the use of diesel engines).Footnote ⁴² Domestic sources, such as wood stoves, are also relevant in the Nordic countries and Russia.Footnote ⁴³ In addition, the energy sector plays a role, with three quarters of its black carbon emissions resulting from oil and gas flaring.Footnote ⁴⁴

It has been estimated that black carbon emissions could be reduced even more quickly than methane emissions: three quarters of global anthropogenic emissions could be eliminated by 2030.Footnote ⁴⁵ Reductions in black carbon emissions have already been achieved through regulation of diesel engines and vehicles, as well as fuels.Footnote ⁴⁶ Potential for mitigation remains in terms of reducing emissions from residential and commercial use of fossil fuels, especially diesel; reducing emissions from wood burning in residential heating, agricultural burning and wildfires; and changing flaring practices in oil and gas fields, especially in Russia.Footnote ⁴⁷

Our analysis of the relevant legal response to SLCPs also covers HFCs. Unlike most other GHGs, these gases have no natural sources and originate only from human activities. Many have very high potential for global warming, making them particularly harmful to the climate. The most common HFC (HFC-134a) has a global warming potential of 1,430 times higher than that of CO₂. While the share of HFCs in global GHG emissions is currently low, the increase in their use since 1990 has been significant and is projected to grow by as much as thirtyfold by 2050.Footnote ⁴⁸ HFCs are used as refrigerants, aerosol propellants, solvents, and fire retardants. A range of mature and sustainable alternatives already exist for HFCs.Footnote ⁴⁹

3.1. The CLRTAP and the Gothenburg Protocol

As a framework convention, the CLRTAP defines general principles of cooperation for air pollution abatement in the northern hemisphere. Through eight protocols, the Convention’s regime sets legally binding national targets for parties to reduce emissions of such pollutants as nitrogen oxides, volatile organic compounds (VOCs), heavy metals, and persistent organic pollutants (POPs). All Arctic nations are parties to the CLRTAP, but not all have joined its individual protocols.

The key instrument for SLCPs within the CLRTAP regime is the Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone.Footnote ⁵¹ Adopted in 1999, the Protocol originally sought to control and reduce anthropogenic emissions of sulphur, nitrogen oxides, ammonia and VOCs. Pursuant to a 2012 amendment, the Protocol also sets emissions reduction targets for fine particulate matter (PM_2.5), into which category black carbon falls. As of 15 June 2017, the amendment was yet to enter into force, pending ratification by two thirds of the parties to the Protocol. Concerns over cost-effectiveness, austerity and implications of emissions cuts for the economy, as well as the lack of clear champions for clean air action among states, have been cited as reasons for the low participation.Footnote ⁵² Of the Arctic nations, only Sweden and the US have ratified the amendment. The other EU Arctic nations party to the Protocol – Denmark and Finland – are expected to ratify amendments to the Protocol following revisions to the EU Directive on National Emission Ceilings.Footnote ⁵³ Norway ratified the Protocol in its original form but has not yet ratified its amendments. Canada, Iceland and Russia are yet to sign or ratify the Protocol, and discussions to engage them are ongoing.

The Gothenburg Protocol defines emissions reduction commitments as a percentage of emissions between 2005 and 2020. These emissions reductions are to be achieved by 2020 and beyond. However, while parties to the Protocol accept quantitative emissions targets for fine particulate matter, the black carbon component of their emissions reductions has not been specified. Instead, the Protocol includes several caveats. Accordingly, parties ‘should, in implementing measures to achieve their national targets for particulate matter, give priority, to the extent they consider appropriate, to emission reduction measures which also significantly reduce black carbon’.Footnote ⁵⁴ In addition, 2014 saw the adoption of new Guidelines for Reporting Emissions and Projections, which require parties to submit emissions inventories for fine particulate matter on an annual basis and projection reports on a four-yearly basis from 2015.Footnote ⁵⁵ Parties are also ‘strongly encouraged’ to report their emissions inventories for black carbon, and all Arctic nations have already provided such inventories.Footnote ⁵⁶

The Protocol does not specify a timeline for its future development. However, it hints at the potential strengthening of control and the reduction of emissions in the future. For instance, in stating its objective, the Protocol refers to ensuring that ‘in the long term and in a stepwise approach, taking into account advances in scientific knowledge’ atmospheric concentrations do not exceed specified amounts.Footnote ⁵⁷

Overall, the Gothenburg Protocol is a good illustration of the CLRTAP’s evolution and increased sophistication over time.Footnote ⁵⁸ The early protocols under the CLRTAP addressed single pollutants and a single environmental problem, such as acid rain.Footnote ⁵⁹ This was done through establishing a single emissions ceiling applicable to all parties. In contrast, the Gothenburg Protocol targets several substances and their broad-ranging effectsFootnote ⁶⁰ and is therefore described as a multi-pollutant, multi-effect legal instrument. Its emissions ceilings for fine particulate matter are based on the concept of critical levels, which focuses on the health and environmental effects of exposure to pollutant concentrations in the atmosphere. In addition, the Protocol encourages parties to use the best available techniques to abate emissions.Footnote ⁶¹

For the regulation of SLCP emissions in the Arctic region, the Gothenburg Protocol is significant both as a regional agreement and as the only MEA to explicitly include black carbon in its scope.

3.2. The UNFCCC, the Kyoto Protocol and the Paris Agreement

The UNFCCC is the main international legal framework to tackle climate change and, to date, two agreements – the Kyoto Protocol of 1997 and the Paris Agreement of 2015 – have been adopted under its auspices.

The emissions reduction targets in the Kyoto Protocol apply to a basket of six GHGs, including methane and HFCs. While these two SLCPs have thus been subject to binding emissions reduction targets for developed countries since the Protocol’s first commitment period in 2008–12, the limited coverage of the Protocol in terms of countries and global GHG emissions has constituted a key challenge to the successful mitigation of SLCPs. The Protocol does not set emissions reduction targets for developing countries, and its second commitment periodFootnote ⁶² excludes three Arctic nations (the US, Canada and Russia).Footnote ⁶³ In this sense, the Kyoto Protocol is not seen as an effective instrument for reducing methane and HFC emissions in the Arctic, or indeed globally.

As for the Paris Agreement, as of December 2017, all Arctic countries except Russia and potentially the US participated in the Agreement: the US has indicated its future intention to withdraw,Footnote ⁶⁴ and Russia – although a signatory to the Agreement – has not yet ratified it.Footnote ⁶⁵

A significant feature of the Paris Agreement in terms of its potential impact on SLCP emissions is its country-driven approach to mitigation, according to which parties define and regularly update their nationally determined contributions (NDCs). Each country enjoys broad discretion in defining the scope and contents of its NDC, including with respect to the types of emission covered by the NDC.Footnote ⁶⁶ However, the Paris Agreement lays down several procedural obligations, including the requirement that each NDC must reflect progression beyond the existing pledge and reflect the highest possible ambition.Footnote ⁶⁷ Obligations related to NDCs are complemented by international norms on reporting and transparency.

Arguably, the NDC approach to mitigation under the Paris Agreement leaves ample scope to accommodate diverse mitigation effortsFootnote ⁶⁸ and could constitute an interesting opening for strengthening action on SLCPs under the UNFCCC. By June 2017, 142 countries had communicated their first NDCs. Most of these focus on CO₂, but many also include methane. All Arctic nations included methane in their first or intended NDCs. Globally, 27 countries (including India, Mexico, and Chile) specifically mentioned SLCPs in their intended NDCs.Footnote ⁶⁹ Interestingly, some NDCs also include black carbon emissions for the first time in the history of the UN climate regime. This supports our argument that the Paris Agreement’s mitigation framework is potentially conducive to strengthening global action on SLCPs.

The Paris Agreement also includes provisions for a periodic stocktake ‘to assess the collective progress towards achieving the purpose of this Agreement and its long-term goals’, covering mitigation, adaptation and support.Footnote ⁷⁰ The stocktake is formally due to start in 2023 but a Facilitative Dialogue to test the format is scheduled for 2018. The sources of input for the stocktake will include combined information on NDCs and assessments by the Intergovernmental Panel on Climate Change (IPCC).Footnote ⁷¹ This creates another opening to discuss the role of SLCP emissions reductions in achieving climate objectives.

The COP-21 decision accompanying the Paris Agreement is also significant. Apart from establishing procedures for putting the treaty into practice, it contains a section on enhanced pre-2020 action. This section, among other things, aims to strengthen the technical examination process of opportunities for action with high mitigation potential, which was set up by COP-19.Footnote ⁷² The process essentially consists of a series of expert meetings to share policies, practices and actions,Footnote ⁷³ and represents an opportunity for technical discussion on SLCPs in the UNFCCC regime.

Overall, the Paris Agreement envisions a long-term response to climate change. It adopts a country-driven approach to mitigation and does not specify which emissions should be included in a country’s NDC. Therefore, while it does not require mitigation of SLCP emissions, the Paris Agreement offers some interesting openings to strengthen action on these pollutants in ways that could be beneficial for the Arctic region.

3.3. The Montreal Protocol on Substances that Deplete the Ozone Layer

The Montreal Protocol has often been hailed as one of the most successful MEAs.Footnote ⁷⁴ It includes legal obligations that restrict the production and consumption of ‘controlled substances’. The Protocol also covers measures to regulate trade in controlled substances with non-parties, as well as trade in substances containing controlled substances and substances produced with controlled substances.Footnote ⁷⁵ All Arctic nations are parties to the Montreal Protocol.

From the perspective of SLCPs, the Montreal Protocol is relevant because its decisions to phase out chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) have led to increases in the use of HFCs.Footnote ⁷⁶ HFCs are used in many of the same appliances, such as refrigeration and air-conditioning equipment. Increasing the use of HFCs has, in fact, been actively encouraged through the Montreal Protocol’s Multilateral Fund, which provided support for using HFCs as alternatives for HCFCs.Footnote ⁷⁷ This obviously constituted a serious concern from the point of view of global climate change mitigation efforts given that HFCs are highly potent GHGs.

Against this background, the parties to the Montreal Protocol adopted an amendment to the Protocol in 2016 in Kigali (Rwanda) (the Kigali Amendment). The amendment adds HFCs to the list of substances controlled under the treaty and to be phased out,Footnote ⁷⁸ and commits parties to the Protocol to reducing HFC use by 80% to 85% by the late 2040s. Developed and developing countries are subject to different phase-out schedules: the former are required to start reductions in 2019 and most of the latter have to freeze consumption of HFCs in 2024 and start reductions in 2029. Some developing countries are among the hottest in the world – such as India, Iran and Pakistan – and are accordingly on a more flexible schedule, with the freeze year in 2028 and the start of reductions in 2032. The amendment is yet to enter into force, pending ratification by at least 20 parties.

In sum, the ozone regime is a well-established and successful international legal framework, which has recently been amended to include an obligation to phase out HFCs. The relevant control measures are based on a top-down approach with more flexible phase-out schedules for developing countries. Once the Kigali Amendment enters into force, the Montreal Protocol will provide a strong global legal framework to mitigate certain types of SLCP emission, thereby also being of benefit to the Arctic region.

3.4. The Arctic Council

The Arctic Council was created in 1996 as an intergovernmental forum for cooperation between the eight Arctic states.Footnote ⁷⁹ It has a long history of promoting collaboration on environmental matters. The Arctic Council can be described as a ‘soft law body’Footnote ⁸⁰ and mainly produces informal documentation such as guidelines, assessments and recommendations, which it ‘does not and cannot implement or enforce’.Footnote ⁸¹ Recently, however, the Council has been engaged in traditional lawmaking by providing a forum for negotiating legally binding instruments – for example, the 2017 Agreement on Enhancing International Arctic Scientific Cooperation.Footnote ⁸²

The work of the Arctic Council on SLCPs began by marshalling scientific knowledge on black carbon and methane under the Task Force on SLCPs, which produced a first report in 2011Footnote ⁸³ and a second in 2013.Footnote ⁸⁴ To follow up on this scientific and technical work, the Arctic Council created a Task Force for Action on Black Carbon and MethaneFootnote ⁸⁵ in 2013. The Task Force was instructed to ‘develop arrangements on actions to achieve enhanced black carbon and methane emission reductions in the Arctic’.

As a result, the 2015 Arctic Council Ministerial Meeting adopted its Framework for Action on Enhanced Black Carbon and Methane Emission Reductions.Footnote ⁸⁶ The Framework seeks to accelerate the decline of black carbon emissions and significantly reduce methane emissions. Accordingly, the Arctic states commit to reducing these emissions through the development of national action, action plans and mitigation strategies.

The Framework creates a two-year iterative process, driven by an Expert Group to periodically assess progress made. As part of this periodic assessment, the Expert Group presents a Summary of Progress and Recommendations to the Arctic Council ministers. Following the first report of the Expert Group in 2017,Footnote ⁸⁷ the Arctic Council Ministerial Meeting adopted an ‘aspirational collective goal’ of limiting black carbon emissions by between 25% and 33% below 2013 levels by 2025.Footnote ⁸⁸ This is the first regional goal on black carbon. It should be noted that the target is based largely on the implementation of existing policies. Based on projections submitted by most of the Arctic states, their black carbon emissions are already estimated to decrease by 24% from 2013 by 2025.Footnote ⁸⁹ Emissions reductions beyond current projections would require additional measures among Arctic states.

An important feature of the Framework is that it builds on enhanced emissions inventories and information. Under the Framework, the Arctic states commit to developing and improving black carbon emissions inventories and projections using, where possible, CLRTAP guidelines. They also agree to enhance expertise in the development of such inventories by working through the Arctic Council and other relevant bodies. In addition, the Arctic states agree to continue to improve emissions inventories and projections for methane as reported under the UNFCCC.

The Framework endorses a four-year cycle of scientific reporting, including the assessment of the status and trends of SLCPs in the Arctic, with a focus on the impact of anthropogenic emissions on Arctic climate and public health. The Framework outlines plans to raise awareness of the impact of black carbon and methane emissions locally and internationally, especially with Arctic Council observer states and other states whose emissions potentially impact upon the Arctic region. Through the Framework, the Arctic states expressly resolve to implement sector and project-based activities within the Arctic Council and nationally, which will focus on sectors identified as the most significant and emerging sources of black carbon and methane emissions. A particular sector or area may be selected for sustained attention over a two-year period.

Recognizing that black carbon and methane emitted outside the region have a substantial impact on the Arctic, the Framework notes that robust mitigation action by Arctic Council observer states is ‘vital’ for overall success. It thus welcomes the participation of those states in the implementation of the Framework. The Framework also highlights the role of the private sector, especially in areas such as transport and oil and gas, and invites it to participate in the Framework’s implementation. The Arctic states have the intention of working with financial institutions to promote the financing of activities to reduce black carbon and methane emissions, and to bring such considerations into the mainstream in terms of decision making over funding.

By its nature, the Arctic Council Framework is a soft law instrument, and the 2017 collective goal for reducing black carbon emissions is merely aspirational. At the same time, the work to develop and improve emissions inventories – especially for black carbon – can be seen as an important and welcome first step in the process of reducing SLCP emissions with harmful impacts on the Arctic. Indeed, by late 2016, all the Arctic states and five observer states, including India, had submitted their inventories for black carbon.Footnote ⁹⁰ Most Arctic states also provided black carbon projections.

By adopting an aspirational collective goal to limit black carbon emissions, the Arctic states seek to fill the gap in the legal and governance landscape on black carbon. Indeed, the Gothenburg Protocol does not address black carbon directly and its relevant amendments have not entered into force. Furthermore, the adoption of a regional target on black carbon under the Arctic Council reflects a political agreement that can raise the profile of the issue in both national and international policy. This contrasts favourably with the CLRTAP process, which is largely technical in nature and confined to ministries responsible for the environment.

The establishment of the process for periodic expert assessment of the progress made and scientific reporting is also significant. The Arctic Council has been successful in the past in influencing regional and national policy making through large-scale scientific assessments: for instance, its early work on POPs influenced negotiations on a POPs protocol under the CLRTAP and on the 2001 Stockholm Convention on Persistent Organic Pollutants.Footnote ⁹¹ In pushing for stronger action on SLCPs in other fora, the Arctic Council has the ability to highlight the impacts of SLCPs on Arctic communities, capitalizing on the role of its permanent participants, as it did in respect of POPs. In addition, in its ambition to reach a wider group of non-Arctic countries and stakeholders, the Arctic Council’s approach may be more inclusive, and therefore potentially able to inspire action and promote responsibility among businesses, cities, local government, and citizens.Footnote ⁹²

Overall, the Framework can be characterized as a positive development, potentially paving the way for more ambitious future mitigation measures. However, more work is required to monitor its longer-term implementation and impact.

3.5. The International Maritime Organization

The International Maritime Organization (IMO) is a UN agency for intergovernmental cooperation in regulating shipping engaged in international trade. All Arctic nations are members of the IMO. The Organization addresses environmental issues through its Marine Environment Protection Committee and has adopted a number of conventions to address marine pollution and oil spills, of which the International Convention for the Prevention of Pollution from Ships of 1973 (MARPOL)Footnote ⁹³ is the most significant.

With the exception of ozone-depleting substances, the IMO has thus far not addressed SLCPs directly. However, it has relevant regulatory experience in relation to air pollutants and GHGs. For example, Annex VI was added to MARPOL in 1997 to limit the main air pollutants emitted by ships, including sulphur oxides and nitrous oxides, and prohibit the deliberate emitting of ozone-depleting substances. In 2011 the IMO adopted a package of energy efficiency regulations for ships,Footnote ⁹⁴ which are expected to significantly reduce GHG emissions.

During the last few years, discussion in the IMO has also focused on the issue of black carbon. Ships produce more particulate matter and black carbon per unit of fuel than other fossil fuel combustion sources because a different quality of fuel is used. Marine shipping activity is expected to increase worldwide, although the extent of the increase to be expected in the Arctic is unclear.Footnote ⁹⁵ Black carbon has been discussed extensively in the IMO both separately and as part of particulate matter,Footnote ⁹⁶ but progress has been slow. The Marine Environment Protection Committee adopted a definition of black carbon in 2015 after four years of deliberations, and some headway was made on the measurement of black carbon.Footnote ⁹⁷ The focus of the discussions is now expected to shift to control measures.

In parallel, the IMO in 2014 adopted the International Code for Ships Operating in Polar Waters (Polar Code),Footnote ⁹⁸ which applies to both the Arctic and the Antarctic. However, although the Code contains a number of provisions on the prevention of environmental pollution, including pollution from oil and sewage and garbage from ships, they do not cover black carbon emissions.

Addressing climate change and reducing GHG emissions in the IMO context has been complicated by the uncertain and contentious relationship between the IMO and the UNFCCC.Footnote ⁹⁹ For a long time, it was unclear whether the UNFCCC or the IMO was the appropriate arena for the international regulation of GHG emissions from shipping. The Paris Agreement is silent on the subject, which means that global action on GHG emissions from shipping is to be expected from the IMO. Discussions on regulating GHG emissions from shipping have been especially contentious as a result of a conflict of principles: while the principle of common but differentiated responsibilities underpins the global climate change regime, the IMO regime is based on non-discrimination and universality, which means that rules apply to all ships regardless of their ownership or flag.Footnote ¹⁰⁰ The non-discrimination principle impedes discussion in the IMO of commitments to reduce emissions and of support mechanisms such as finance and technology transfer.

Hence, the IMO has ongoing discussions on how to address black carbon emissions in international shipping, but thus far no concrete measures have been developed.

3.6. The Climate and Clean Air Coalition

The CCAC is a government-led public–private partnership, which was launched in 2011. Its aims include raising awareness of SLCP impacts and mitigation approaches, as well as strengthening and developing national and regional actions. The CCAC also includes capacity building and seeks to mobilize support, promote best practices, and improve scientific understanding of SLCPs.Footnote ¹⁰¹ Its initial focus is on black carbon, methane and HFCs.Footnote ¹⁰²

Despite its recent establishment, the CCAC has been successful in mobilizing the participation of 53 state partners, including all the Arctic states except Iceland. More than 60 non-state partners – including IGOs and NGOs – have also joined. By joining the CCAC, states or other stakeholders sign up only for the generic responsibility to take ‘meaningful action to address SLCPs’.Footnote ¹⁰³ Other than that, each partner ‘determines the nature of its participation’.Footnote ¹⁰⁴

The CCAC has launched seven initiatives focusing on specific sectors or sources of SLCPs: agriculture, brick production, stoves used in household cooking and domestic heating, heavy-duty diesel vehicles and engines, HFCs, oil and natural gas production, and municipal solid waste. Thus far, the CCAC has shown itself to be innovative in tailoring its activities and strategies for specific sectors. It has not addressed the issue of SLCPs in the Arctic per se, but its work on emissions from diesel and the oil and gas industry, as well as waste and agriculture, is highly relevant for the Arctic. The CCAC has also undertaken four cross-cutting initiatives: (i) financing mitigation of SLCPs; (ii) regional assessments of SLCPs; (iii) supporting national planning; and (iv) health. Some initiatives have work streams on specific issues. Activities vary from initiative to initiative but commonly include high-level policy advocacy and building buy-in by private actors, the development of policies and regulations in developing countries, the mapping of knowledge and best practices, the development of toolkits, and the development of avenues for information exchange and mutual learning. The CCAC also facilitates financing, for example, for clean stoves.

Interestingly, the CCAC actively fosters links with formal international lawmaking processes. It frequently holds meetings on the sidelines of the official meetings under the climate and ozone regimes. Furthermore, UN Environment has been active in the establishment and current work of the CCAC, including the provision of secretariat services. It has been noted that ‘the links to the UN system, and in particular the active participation of UNEP in the Coalition, lends greater political credence to the Coalition’s activities’.Footnote ¹⁰⁵

The key role of the CCAC seems to be that of building an international arena for knowledge and information exchange on SLCPs. To what extent this function will lead to stronger action on SLCPs at the national or international levels is, however, difficult to predict. In principle, consolidation and the sharing of knowledge and best practice may lead to mutual learning that can advance action on SLCPs. This may be particularly relevant for developing countries where such knowledge is unavailable and technical expertise is scarce. A clearing house function can also be useful for highly fragmented sectors with multiple stakeholders and regulatory venues. On the other hand, for highly condensed sectors with fewer stakeholders, such as the oil and gas industry, such a function may be less useful, especially in the presence of parallel initiatives with similar goals.Footnote ¹⁰⁶

To sum up, the CCAC is the key global vehicle that focuses on SLCPs. Since its main activities are awareness raising, knowledge exchange and capacity building, it does not engage directly in lawmaking activities, but it has arguably played a role in raising awareness on SLCPs and identifying mitigation opportunities at the national and international levels.

4.1. The Fragmentation of International Law and Governance

The debate on the fragmentation of public international law – in other words, ‘uneven normative and institutional development and evolution in inter-state relations’Footnote ¹⁰⁷ – drew impetus from a report of the International Law Commission (ILC) published a decade ago.Footnote ¹⁰⁸ The ILC framed the issue of fragmentation by reference to the emergence under international law of such specialist systems as ‘trade law’, ‘human rights law’, ‘environmental law’, ‘the law of the sea’, and ‘European law’.Footnote ¹⁰⁹ The ILC report asserted that lawmaking in such specialized fields ignored developments in other fields as well as general principles and practices of international law. The ILC concluded that the fragmentation of law results in ‘conflicts between rules or rule-systems, deviating institutional practices and, possibly, the loss of an overall perspective on law’.Footnote ¹¹⁰

The concept of fragmentation has since been adopted by international relations scholars to analyze international and transnational institutions and public–private partnerships, especially in relation to the environment.Footnote ¹¹¹ In this respect, this work is closely linked to scholarship on institutional complexityFootnote ¹¹² and, in particular, to studies on institutional interlinkagesFootnote ¹¹³ and regime complexes.Footnote ¹¹⁴

Some of the scholarship has been critical of the terminology of ‘fragmentation’, either because it is seen as having a negative bias, or (unrealistically) on the basis of the assumption that there has been, or should be, some kind of ‘unity’ in international law.Footnote ¹¹⁵ This article treats fragmentation as a neutral phenomenon, which can have both positive and negative impacts. Fragmentation here refers to ‘the increased specialization and diversification in international institutions, including the overlap of the substantive rules and jurisdictions’.Footnote ¹¹⁶

As we have shown, the legal and governance landscape of SLCPs in the Arctic is fragmented. The question of how to strengthen it is closely related to the consequences of this fragmentation. Here, Biermann and his co-authors usefully draw attention to different types of fragmentation. In this respect, they suggest analyzing the degree of institutional integration and the extent of overlaps between decision-making systems; the existence and degree of norm-conflicts; and the type of actor constellation.Footnote ¹¹⁷ Based on these criteria, they identify three types of fragmentation:

• ∙ synergistic fragmentation;

• ∙ cooperative fragmentation; and

• ∙ conflictive fragmentation.

This typology serves as a useful analytical tool, with the caveat that, in the real world, the boundaries between the three types of fragmentation may be blurred.

Synergistic fragmentation refers to situations in which one core institution exists and the institutional arrangements, although distinct from each other, are highly integrated (degree of institutional integration); there are effective and detailed general principles (existence and degree of norm conflicts); and nearly all countries are included (types of actor constellation).Footnote ¹¹⁸ An example of synergistic fragmentation is the ozone regime, for which the 1985 Vienna Convention for the Protection of the Ozone LayerFootnote ¹¹⁹ and the 1987 Montreal ProtocolFootnote ¹²⁰ serve as an overarching framework for all related institutions and amendments.Footnote ¹²¹

In situations of cooperative fragmentation, different institutions and decision-making processes are only loosely integrated; relations between their norms and principles are ambiguous; and the core institution does not cover all relevant countries.Footnote ¹²² However, the degree of cooperation is sufficient to avoid open conflicts between different institutions or norms.Footnote ¹²³ In the view of Biermann and his co-authors, the relationship between the UNFCCC and the Kyoto Protocol offers an example of such cooperative fragmentation.

Finally, conflictive fragmentation occurs when different institutions are poorly connected and have different decision-making procedures; principles and norms are in conflict; and different sets of actors participate in different institutional arrangements.Footnote ¹²⁴ Conflictive fragmentation takes place, for instance, in respect of access to and sharing the benefits of plant genetic resources, where two regimes – the Convention on Biological DiversityFootnote ¹²⁵ and the Agreement on Trade-Related Aspects of Intellectual Property RightsFootnote ¹²⁶ – seek to regulate the issue area at hand.Footnote ¹²⁷

Biermann and his co-authors conclude that different types of fragmentation indeed result in different types of performance. Cooperative fragmentation has both advantages and disadvantages, while conflictive fragmentation seems to bring about more costs than benefits and, in this sense, appears to be undesirable.Footnote ¹²⁸ As for the synergistic type of fragmentation, Biermann and co-authors describe it as ‘a realistic second-best option in a world of diversity and difference in which purely universal governance architectures are more a theoretical postulate than a real-life possibility’.Footnote ¹²⁹ On this basis, it can be concluded that synergistic fragmentation is better than cooperative fragmentation, while conflicting fragmentation should be avoided. Another important conclusion to be drawn from the research is that fragmentation is not an evil per se and its consequences depend on how relationships between various overlapping agreements are managed.Footnote ¹³⁰

4.2. Is Fragmentation a Problem for SLCPs in the Arctic?

The overall legal and governance landscape for SLCP emissions in the Arctic can be described as fragmented. The various instruments and arrangements are different in character (regimes, international organizations, intergovernmental fora, voluntary initiatives), coverage of pollutants, constituencies (international, transnational), spatial scope (regional, global), and subject matter (climate change, ozone layer, air pollution, international shipping). At the same time, there are clear overlaps in terms of their substantive coverage.

Utilizing the analytical framework proposed by Biermann and co-authors, this section assesses the fragmentation of law and governance for each relevant pollutant – black carbon, methane and HFCs. In addition, we examine regulatory and governance gaps. Each SLCP is covered by several instruments and institutions in parallel, as represented in Figure 1 above.

Figure 1 Regulation and Governance of SLCPs in the Arctic by Pollutant

4.3. How to Strengthen International Law on SLCPs in the Arctic

This section first explores whether a dedicated treaty on SLCPs is desirable and possible, and then continues to discuss how the regulation of each of the specific pollutants involved can be strengthened.

Should SLCPs, both in the Arctic and globally, be regulated through a new dedicated treaty? There are several arguments against such an approach. To start with, SLCPs have very different scientific characteristics, originate in different sectors, and have different impacts. In addition, as the examples in Section 3 demonstrate, negotiating a new legal instrument is a politically demanding process and the entry into force of the instrument or the participation of key countries cannot be taken for granted.

Furthermore, while the current legal and governance landscape concerning Arctic SLCPs is fragmented, this fragmentation has a cooperative or synergistic character and is therefore relatively unproblematic. Almost all of the extant specialized international legal regimes or arrangements are located in the sphere of international environmental law. This suggests that the risks associated with legal fragmentation – such as legal incoherence and the prioritization of one field of law over anotherFootnote ¹⁵⁰ – may not materialize. At the same time, the instruments and initiatives involved are sufficiently different from each other to accommodate divergent state interests, the logic being that ‘states perceive that their individual positions are better respected in these special regimes than in the global one’ and hence are more likely to comply.Footnote ¹⁵¹ Thus, addressing SLCPs through specialized pollutant-specific venues is more desirable and politically feasible than doing so through a new dedicated treaty which would cover them all comprehensively.Footnote ¹⁵²

At the same time, to avoid incoherence between the approaches taken and to ensure co-benefits, there is a clear need for strategic oversight and enhanced cooperation among the various arrangements. From a climate perspective, it is important to understand how individual efforts under specialized regimes add up with respect to the global 2°C and 1.5°C temperature goals referred to in Article 2 Paris Agreement. The UNFCCC can accommodate discussion on all SLCPs, including black carbon, through the pre-2020 technical examination process and the flexible mitigation structure of the Paris Agreement, relying on NDCs, the transparency framework and the periodic global stocktake. Indeed, some countries already include black carbon in their NDCs. The cyclical process of communicating and periodically updating NDCs could provide an interesting opportunity to step up SLCP mitigation under the auspices of the UNFCCC regime. In our view, this should be explored further to address both Arctic and global SLCP emissions.

In addition to the UNFCCC framework, other avenues of global and regional cooperation are relevant to strengthen SLCP mitigation in the Arctic. The CCAC has the potential to be instrumental in assembling scientific knowledge about the climate impacts of the reduction in SLCPs and in communicating it to policymakers. It also provides a useful forum for informal cooperation for countries interested in stepping up the SLCP agenda and coordinating their efforts, for example, under the UNFCCC regime. The Arctic Council already advances regional action on black carbon and methane under its Framework. Both the CCAC and the Arctic Council should explore opportunities for further inter-institutional cooperation with the UNFCCC. This is because close relationships among secretariats and decision-making bodies are important in ensuring cooperation between the various regimes.Footnote ¹⁵³

For reducing black carbon emissions among Arctic nations, the Gothenburg Protocol in principle provides a legal framework for a strengthened response. Although parties’ existing obligations on black carbon are of a general nature, the provisions of the Protocol on the development of emissions inventories and trajectories could serve as the first step to more stringent obligations in the future. This would also reflect the history of the LRTAP regime, in which non-binding instruments proved to be effective in the early stages of creating the regimeFootnote ¹⁵⁴ and the Convention and the Protocols have evolved ‘from vagueness to precision’ over time.Footnote ¹⁵⁵ The main challenges to be addressed for the future under the Gothenburg Protocol are increasing its level of participation, including among Arctic states, and adopting more specific and stringent emission limits for black carbon. In the meantime, the Arctic Council offers a means of catalyzing action among its members, including by encouraging countries to join the amended Protocol.

When it comes to global emissions of black carbon, which are also important in the Arctic context, there is a gap in international law and governance. Strengthening global action on air pollution through international fora such as UN Environment, the WMO and the World Health Organization (WHO), as well as via the framework of Sustainable Development Goals,Footnote ¹⁵⁶ could create an opening to discuss the global impacts of black carbon emissions. These avenues already have global coverage, which eliminates the problem of inadequate geographic participation that plagues legal instruments on air pollution.Footnote ¹⁵⁷ Such action is most likely to take a non-legally binding form: for instance, it may be pursued via soft law frameworks or some type of enhanced cooperation.Footnote ¹⁵⁸ A bottom-up, facilitative approach to global action on black carbon could help to engage developing countries which might be averse to top-down restrictive measures. The Arctic Council could also be useful in encouraging its observer states to take action on their SLCP emissions.

With regard to methane, the picture is less clear. Methane is covered by the UNFCCC regime and is already reported on by countries under the Convention. However, it has not been the focus of mitigation action thus far. The Paris Agreement does not specify which GHGs it covers. Although many countries included plans to reduce methane emissions in their intended NDCs, the status of methane is still to be clarified in the negotiations on the Paris rulebook. In the absence of clear international legal rules, the Arctic Council can have more of an impact by strengthening regional action on methane. In the global context, there is also significant potential for transnational voluntary initiatives like the CCAC and others to stimulate action on methane emissions.

For HFCs, a global approach is a way forward, given that developing countries already account for an estimated 50% of global HFC emissions and their share is projected to grow.Footnote ¹⁵⁹ The Arctic Council environment ministers also emphasize the importance of the Montreal Protocol in that respect.Footnote ¹⁶⁰ The Kigali Amendment to the Protocol is a significant achievement in terms of multilateral action on environmental matters, and the challenge now is its full implementation.