1. INTRODUCTION: THE SLCP CHALLENGE, FROM NEW KNOWLEDGE TO EFFECTIVE GOVERNANCE
The most complex and urgent item on the international environmental agenda is climate change, which presents novel challenges to the regulatory world through its intensity, its complexity, and its pervasively destructive influence on the ecosystem and human health. As scientific inquiry strengthens our understanding of the impacts of global warmingFootnote 1 and the actions necessary to address it, so also are nations exploring environmental and public health solutions through various regulatory initiatives, at scales ranging from the municipal to the international. This multi-layered realm of environmental governance is marked by fragmentation in both substance and scale.Footnote 2
As short-lived climate pollutants (SLCPs) gain greater attention as prominent contributors to global warming, the branches of climate governance multiply, yet again. Out of this multiplication arise new opportunities for global cooperation, including possibilities for a regeneration of Arctic governance centred on human and ecosystem health. This article makes two arguments. Firstly, a conventional international legal approach to SLCP regulation suffers from epistemological and spatial limitations. Hence, we must look beyond formal international law to realize our global aims regarding Arctic pollution. Secondly, the acute impact of climate change on the Arctic region (scientifically known as the Arctic amplification effect) has essentially amplified new and ancient claims to the Arctic (indigenous, national, scientific, and corporate). We see emerging a global Arctic epistemic community for whom the typical processes of public international law represent too narrow a perspective.
2. SLCPs AND THEIR MITIGATION POTENTIAL
Over the last decade, an emerging body of research from various scientific communities, international institutions, and regulatory bodies has consistently validated the need to control emissions of SLCPs. Also known as short-lived climate forcers, this subset of greenhouse gases (GHGs) and particulates – which includes black carbon (BC), methane, tropospheric ozone, and hydrofluorocarbons (HFCs) – can be pinpointed to both anthropogenic activities and natural sources.Footnote 3
BC, also referred to as soot, is a component of particulate matter (PM), which results from the incomplete combustion of fossil fuels, biofuels and biomass. Its sources include vehicular and shipping traffic, agricultural and forest burning, and wood or coal-based residential heating, and it has been linked with respiratory and cardiovascular health risks and cancer.Footnote 4 In addition, light-absorbing BC particles darken snow and ice, reducing the Earth’s capacity to radiate sunlight back to space and thereby contributing to the warming of the atmosphere.Footnote 5
There are still significant gaps in our understanding of the specific role of BC and other SLCPs in Arctic climate change. These gaps are as a result of, for example, limitations in our ability to measure BC in the atmosphere and environment, uncertainty regarding the impact of global and regional emissions on the Arctic climate, and our still embryonic knowledge of the complex physical and chemical processes that affect the levels of SLCPs in the atmosphere.Footnote 6 Still, the idea that specific SLCP mitigation measures represent an integral part of the broader climate governance agenda is becoming more widespread. Because SLCPs remain in the atmosphere for only days, weeks, or months – a significantly shorter period than long-living carbon dioxide (CO2) emissions – the mitigation of SLCP emissions is seen as a promising pathway to immediate and meaningful climate benefits. Above all, SLCP regulation is driven by a concern for the human and ecosystem health effects of atmospheric pollution.
3. A GLOBAL LANDSCAPE OF SLCP MITIGATION EFFORTS
A broad range of institutions, agreements, and multi-stakeholder initiatives currently address SLCPs. Existing mitigation efforts are disconnected and range from international and regional regulatory regimes to voluntary, industry-led initiatives. For example, both methane and HFCsFootnote 7 are GHGs covered by the Kyoto ProtocolFootnote 8 to the United Nations Framework Convention on Climate Change (UNFCCC);Footnote 9 emissions reduction credits have been issued, for example, to projects involving agricultural and landfill site methane destruction and HFC abatement.Footnote 10 In addition, parties to the Montreal Protocol on Substances that Deplete the Ozone LayerFootnote 11 recently committed to a global phase down of HFC production and consumption, starting in 2016.Footnote 12
International concern over the climate impacts of BC can be traced back at least as far as the Intergovernmental Panel on Climate Change (IPCC) Report of 1995, which addresses the radiative forcing effects of soot from the burning of fossil fuels and biomass.Footnote 13
Amendments made in 2012 to the Convention on Long-Range Transboundary Air Pollution (CLRTAP),Footnote 14 the first multilateral treaty to address air pollution, brought BC emissions within the scope of the Convention. This and other international legal developments on SLCPs are discussed in greater depth below.
The International Maritime Organization (IMO) has also been working on the issue of BC emissions from ships. At its 62nd session (2011), the Marine Environment Protection Committee initiated a work plan to address the Arctic impacts of BC emissions from ships and instructed the Subcommittee on Bulk Liquids and Gases – now the Sub-Committee on Pollution Prevention and Response (PPR) – to adopt a definition of BC, evaluate measurement methods, and propose potential control measures to reduce BC emissions from international shipping in the Arctic region.Footnote 15 At its 2nd session (2015), the Sub-Committee on PPR recommended the adoption of a definition of BC developed by Bond and co-authorsFootnote 16 and broadly recognized by the scientific community. The Sub-Committee could not yet propose control measures because of ongoing questions about how best to measure BC from international shipping activities.Footnote 17
Practical recommendations for SLCP reductions have generally been sector-specific. In 2011, the United Nations Environment Programme (UNEP) compiled a list of 16 SLCP mitigation measures, associated with six specific sectors, that could be implemented on the national scale. The Climate and Clean Air Coalition (CCAC) – a multi-stakeholder group of governments, international organizations, and corporate and other non-governmental entities – has been working on the global reduction of SLCPs since 2012. It has launched a number of mitigation initiatives that focus on fostering public–private partnerships, building capacity, assisting governments in developing national action plans, and promoting the adoption of standards and regulations aimed at reducing SLCP emissions. The work of the CCAC includes 11 single-sector and cross-cutting initiatives. Other prominent global SLCP initiatives include the Global Alliance for Clean Cookstoves, a public–private partnership launched in 2010 and hosted by the United Nations (UN) Foundation, and the Global Methane Initiative, a multilateral partnership also launched in 2010 and based on a voluntary non-binding framework in coordination with international and non-governmental entities.
The global landscape of SLCP mitigation efforts, therefore, reveals a diverse array of initiatives, but no systematic approach or coherence. In this regard, emergent SLCP regulation displays the prevalent characteristics of international environmental governance: organizational and regime fragmentation.Footnote 18
4. THE ARCTIC COUNCIL AND ITS WORK ON SLCPs
The present article focuses on the Arctic Council, one of the earliest institutions to have started working on SLCPs. The Arctic Council is a truly distinct global actor. It comprises the eight Arctic states as Members, and six international organizations representing Arctic indigenous peoples as Permanent Participants. Established in 1996, the Council’s primary objective is to foster cooperation between its Members and Permanent Participants on ‘common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic’.Footnote 19 To date, 32 entities (non-Arctic states, global and regional intergovernmental and inter-parliamentary organizations as well as non-governmental organizations) have been granted observer status in the Arctic Council, which allows them to attend meetings, engage in working groups, contribute to project funding, and make statements at Ministerial meetings.Footnote 20 Hence, even though the Arctic Council is geographically exclusive with regard to its official decision-making processes, it nonetheless engages the active involvement of important global stakeholders, including the world’s largest GHG-emitting nations.Footnote 21 Despite having no formal status under international law, it has progressed ‘from being simply a high level consultative forum to become an emerging regional organization with the ability to assist its members in organizing, managing and directing their collective efforts in the region’.Footnote 22
The work of the Arctic Council is carried out through its six thematic working groups as well as subsidiary bodies (task forces and expert groups) established to address specific issues. The activities, studies, and assessments of the working groups cover various aspects of the Arctic environment and communities, and provide the basis upon which the Arctic Council makes its official recommendations and decisions. Even though the Council claims no enforcement authority over its Members, it has provided a forum for the successful negotiation of two legally binding agreements between its member states on maritime search and rescue and on marine oil pollution in the Arctic.Footnote 23
The Arctic Monitoring and Assessment Programme (AMAP) Working Group delivered a first technical report, in 2008, on the impact of SLCPs in the Arctic. The following year, the Arctic Council established a task force on SLCPs and, since then, has published a number of reports through both the task force and other working groups addressing the Arctic implications of SLCP emissions.Footnote 24 Most recently, at the Iqaluit Ministerial Meeting in 2015, Arctic Council members agreed upon a Framework for Action on Enhanced Black Carbon and Methane Emission Reductions (the Framework).Footnote 25 Through the Framework, the Arctic Council Members have committed themselves to establishing BC inventories and strengthening information exchange on BC and methane emissions with a view to eventually adopting a quantitative collective goal on BC – without, however, creating legally binding obligations. This may suggest a relatively weak contribution to the goal of reduced SLCP emissions. It is also possible, however, that the instrument’s informal nature will foster flexibility, experimentation, and the inclusion of non-Arctic nations. Such attributes may be necessary to achieve greater effectiveness than is usually achieved through a conventional international legal approach. This argument will be developed further momentarily, after a closer examination of the international regulatory context and the new Arctic Council instrument pertaining to BC and methane.
The Framework is innovative in that it creates linkages between existing international legal instruments. Rather than duplicate existing legal mechanisms, it instead connects existing bodies of international law (namely, the CLRTAPFootnote 26 and the UNFCCCFootnote 27 ). Yet, because the Framework itself is not bound by the limitations of public international legal process, and because it engages not only states but also indigenous peoples and other stakeholders, it introduces a new, locally oriented, and inclusive approach to the problem of Arctic warming. The resulting transnational interplay between the local and the global is worth further investigation as a contrast to traditional approaches to international environmental law.
Public international legal processes are limited in at least two notable respects. The first of these limitations concerns participation. The state-centred spheres of international legal negotiation do not fully embrace the participation of non-state actors.Footnote 28 Although the classical assumptionFootnote 29 that states are the exclusive makers and subjects of international law has long been challenged,Footnote 30 it is argued here that the continued closed nature of most international legal regimes affects the epistemological understanding and shaping of the global problems they intend to address. By focusing narrowly on the state, international legal systems have a tendency to homogenize spatial realities, while making some spaces completely invisible.Footnote 31 This leads to a second limitation, which concerns international legal outcomes. In general, states are reluctant to compromise their sovereignty through international environmental regimes; hence, commitments made under international law tend to lack substance and depth, veering instead towards the informational and aspirational.Footnote 32 Prospects for the progressive evolution or meaningful interpretation of reporting mechanisms (such as the UNFCCC for methane and the CLRTAP for BC) are inherently constrained by the mandate, objectives, and scope of the regime in question. Yet, these same reporting mechanisms can be used creatively beyond the contexts in which they have been generated. Their significance may be enhanced by integration into other spheres of transnational cooperation, such as the Arctic Council.
Metaphors of architecture Footnote 33 are often invoked to capture the fragmented yet interconnected essence of international environmental governance. By utilizing and expanding upon reporting mechanisms of the UNFCCC and the CLRTAP, the Arctic Council Framework can be seen as accomplishing a type of architectural work. It not only links but also builds upon the knowledge that is generated in two distinct international regimes which are both relevant to climate change and air pollution governance. In this way, the Arctic Council’s approach promotes and strengthens existing mechanisms of international law, while also innovating beyond them.
Do such ‘hybrid legal spaces’Footnote 34 embody any systemic ordering or collective vision? This question has long pervaded our inquiry into international lawmaking, institution building, and communicating – three dimensions of what can be visualized as our ongoing global life space Footnote 35 negotiation. Indeed, this is the central question raised by the concepts of international legal fragmentation and architecture. Footnote 36 Moreover, soft lawFootnote 37 mechanisms that emerge from and reconstitute international cooperation offer another layer of institutional complexity and interdependence to our international legal existence. The view taken here is that while soft law may not create any legally enforceable obligations, this in no way implies that it does not create expectations of environmental and social orderingFootnote 38 or that it does not fulfil a governance role. In fact, its very significance lies in the fact that it exudes both ‘stability’ and ‘flexibility’.Footnote 39 In some cases, soft law can be an early expression of, and testing ground for, contemporary and evolving modes of legal thought and action.Footnote 40 Moreover, soft law may enhance and emphasize the problem-solving purposes of international law.Footnote 41 This is especially so in cases where the adoption of a legally binding agreement is not immediately possible as a result of, for example, prevailing scientific uncertainty with regard to what would constitute an appropriate response to the given problem.Footnote 42 The following section explores the uncertain and diffuse way in which SLCP regulation unfolds in current international law.Footnote 43
4.1. International Law Relevant to SLCPs in the Arctic
Gothenburg Protocol to the CLRTAP
The CLRTAPFootnote 44 was adopted in 1979 under the auspices of the United Nations Economic Commission for Europe (UNECE) and constitutes the first multilateral agreement to address air pollution. To date, the Convention has been ratified by 51 UNECE Member States.Footnote 45 It is an environmental treaty that establishes a number of fundamental principles in relation to air pollution control and elaborates a framework of information exchange and consultation, as well as research and monitoring, to assist contracting parties in reducing and preventing air pollution. The Implementation Committee, established in 1997 by decision of the Convention’s Executive Body, reviews and reports on parties’ compliance with obligations agreed upon under the Convention.
Initially designed to reduce sulphur emissions, the scope of the CLRTAP has substantially broadened since its adoption. Currently, eight protocols under the Convention provide legally binding emissions reduction targets covering a range of pollutants. While the series of ‘first generation’ protocols stipulated common emissions reduction targets for all parties, protocols developed since the 1990s have implemented the ‘critical loads approach’, whereby national targets vary according to regional ecosystem vulnerability and cost effectiveness.Footnote 46
The Gothenburg Protocol,Footnote 47 adopted in 1999, contains national emissions caps for sulphur dioxide (SO2), nitrogen oxides (NOx), ammonia (NH3), and volatile organic compounds (VOCs). In 2012, the Gothenburg Protocol was amended to extend to fine PM.Footnote 48 Although the amendment is still pending formal entry into force, the Gothenburg Protocol is the first and only international legal instrument to provide specific emissions reduction targets for PM and BC. One of the new objectives of the amended Protocol is that, in implementing PM control measures, parties ‘give priority, to the extent they consider appropriate, to emission reduction measures which also significantly reduce black carbon in order to provide benefits for human health and the environment and to help mitigation of near-term climate change’.Footnote 49 In this regard, the Protocol obliges parties to ‘seek reductions from those source categories known to emit high amounts of black carbon’ to the extent they deem appropriate. Parties are also encouraged to ‘develop and maintain inventories and projections for emissions of black carbon, using guidelines adopted by the Executive Body’ and to report this data.Footnote 50 The Protocols of the CLRTAP are accompanied by guidance documents on best abatement strategies and best available emissions reduction techniques. Under Article 10 of the Protocol, an evaluation of BC emissions mitigation measures by the Executive Body is to be included in its sessionary reviews once the amendment has entered into force.
Several parties to the Convention, including those that have yet to ratify the amended Gothenburg Protocol, have already voluntarily submitted BC emissions inventories through the Convention’s European Monitoring and Evaluation Programme (EMEP). While it is clear that the CLRTAP does not create any supranational authority to determine regulatory commitments or to impose sanctions for not upholding CLRTAP obligations, the Convention nonetheless fulfils a critical and unique role in channelling and standardizing scientific information on BC emissions, hence creating a valuable and unprecedented knowledge base. Even as a voluntary dimension of CLRTAP reporting obligations, national inventories of BC will contribute to advancing the scientific understandings necessary to substantiate regulatory decisions on SLCPs. In light of the various sources of emissions in different countries and persistent scientific uncertainties as to the processes that affect BC impacts, closing in on knowledge gaps and setting an appropriate frame for comparative analysis remains a pressing challenge. In this regard, methodological guidance and BC information exchanges under the CLRTAP should be viewed as progressive developments, despite the absence of any clear, collective mitigation objective.
There are inherent limitations to regulating BC under the CLRTAP that merit consideration. Most notably, the Convention has a limited membership that does not include the highest BC-emitting nations such as India and China. The Convention maintains a strictly regional scope and there are currently no prospects for expansion. Moreover, with regard to regulatory ambition, the evolution of the CLRTAP Protocols towards a pollution control approach that is based on ‘critical levels’ and ‘critical loads’, determined according to the ‘current state of knowledge’, arguably does not embody the precautionary principle, a central feature of environmental law on all levels.
SLCP emissions reductions under the UNFCCC
The UNFCCC was adopted in 1992 at the Rio Conference as a primary global response to stabilizing GHG emissions globally. International climate governance under the UNFCCC has been relentlessly criticized with respect to its legitimacy and effectiveness. Most notably, the 1997 Kyoto Protocol,Footnote 51 establishing legally binding national emissions reduction targets, has suffered significant setbacks, including the refusal by the United States (US) to ratify and Canada’s withdrawal in 2011. Yet, the recent adoption of the Paris AgreementFootnote 52 by all 196 parties to the UNFCCC is a clear signal that the framework treaty retains political symbolism, and there are strong expectations for it to spur global trends towards progressively stronger regulatory and market mechanisms aimed at GHG emissions reductions.
PM emissions, and thus BC, do not fall within the scope of the UNFCCC; nor does there appear to be momentum to extend the UNFCCC framework to BC emissions – the issue was left out of the UNFCCC Negotiating Text prepared for the Paris negotiations.Footnote 53 With the shift of the international climate regime from a ‘top-down’ to a ‘bottom-up’ approach,Footnote 54 states are highly unlikely to allow the specifics of mitigation to be determined through international negotiation, whether for GHGs or SLCPs.
At the same time, the regulation of BC under the UNFCCC is not entirely impossible. The UNFCCC Preamble acknowledges the inherently evolutionary nature of international climate change cooperation: ‘Steps required to understand and address climate change will be … most effective if they are based on relevant scientific, technical and economic considerations and continually re-evaluated in the light of new findings in these areas’.Footnote 55
Moreover, even though aerosols are not explicitly within the scope of the UNFCCC,Footnote 56 the basic rules of treaty interpretation as codified in the Vienna Convention on the Law of Treaties (VCLT)Footnote 57 do provide an opening to extend the scope of the UNFCCC to aerosols. Articles 31 and 32 VCLT provide that – in addition to the text, Preamble, Annexes, and subsequent agreements between the Parties – the ‘subsequent practice’ of state parties shall be used for interpreting a treaty. The inclusion of BC mitigation measures in the nationally determined contributions (NDCs)Footnote 58 of some UNFCCC parties, as well as greater discussions on SLCPs within the context of technical workshops/expert meetings, and other similar subsequent practice under the Convention, could eventually provide support for the view that the regime may be extended to BC.
Unlike BC, methane is within the scope of the UNFCCC via the Kyoto Protocol. The Framework Convention itself does not create any specific emissions reduction obligations for methane or other GHGs, but the Kyoto Protocol is a legally binding instrument that sets specific emissions reduction targets for a list of GHGs, which includes methane and HFCs. The almost universal membership of the UNFCCC, combined with the regime’s ongoing political momentum, make it an important potential site for global SLCP regulation. At the same time, prevalent apprehension over the effectiveness of the UNFCCC regime – given its current structural dynamics and consensus-based decision-making framework – should certainly not be overlooked.Footnote 59 Moreover, the inclusion of SLCPs within the scope of the UNFCCC is not without risk. It is possible that linking CO2 and SLCP mitigation may induce governments and corporations to subsume CO2 reduction with SLCP mitigation, rather than thinking of both measures as complementary. This could lead to perverse effects, for unless strengthened SLCP mitigation measures are coupled with equally stringent CO2 mitigation efforts, any short-term benefits of the former will be eclipsed by CO2-induced global warming in the longer term.Footnote 60
Although both the CLRTAP and the UNFCCC are formal legal instruments, neither is structured to deliver more than thin guidance (if any) with respect to national BC mitigation measures. While these treaties may create the idea of an international regulatory space, they contribute very little substance with regard to how this so-called ‘legal’ space is ordered, and even less with regard to its enforcement. As for setting collective goals regarding BC mitigation, neither regime can be expected to progress rapidly in this regard. By contrast, the Arctic Council Framework, although not a legally binding instrument, is structured to deliver concrete regulatory impacts on BC mitigation. It creates a new linkage between the local and global in a way that has eluded international legal regimes. Whether soft law or not, it may very well lead to a harder legal outcome than current international law.
4.2. The Arctic Council Enhanced Actions on Black Carbon and Methane
Environmental protection and transboundary pollution have been leading concerns of the Arctic Council since its inception. In recent decades, its agenda has been broadened to include climate change. Although not originally established as either a truly international or legal platform, the Arctic Council recently concluded two legally binding agreements between the eight Arctic nations.Footnote 61 This turn towards legalization is driven by the implications of climate change as well as the emergence of new opportunities for resource exploitation.Footnote 62 Lucrative prospects tied to shipping routes, tourism, infrastructure development, and resource wealth have raised global political interest in the Arctic region. We are already seeing a more international Arctic Council in that it now includes 12 observing non-Arctic states, including China, India and Japan – all nations whose GHG and SLCP emissions have a profound effect on the global ecosystem.
While the Arctic Council’s adoption in 2015 of a voluntary framework to address BC and methane emissions might not translate into binding international legal obligations, the initiative does signal an emerging effort towards integrated climate and air pollution governance in the Arctic region. A clearly informal approach, the Framework is nevertheless linked to the broader body of international environmental law, with its opening paragraphs explicitly affirming its supportive and complementary relationship with the UNFCCC regime. Moreover, the informational mechanisms envisioned by the Framework rely on and complement the CLRTAP and UNFCCC emissions inventories and projections. The Framework’s reporting mechanism makes it possible for Arctic and observer states to use information submitted to these other global reporting mechanisms as part of their national submissions to the Arctic Council Secretariat.Footnote 63
Through the Framework, the Arctic Council states commit themselves to ‘enhanced, ambitious, national and collective action’ with respect to reducing their overall BC and methane emissions. In this respect, they have agreed to provide BC inventories to the Arctic Council Secretariat as of 2015, to establish an aggregate summary of their emissions (of BC and methane), and furthermore to adopt an ‘ambitious, aspirational and quantitative collective goal on black carbon and to consider additional goals by the next Arctic Council Ministerial meeting in 2017’. The Framework also establishes a two-year iterative process to assess progress towards the ‘common vision’ of the Framework and to make relevant recommendations.Footnote 64 Observer states are called upon to join in the active implementation of the Framework by ‘strengthening their domestic actions, developing robust emission inventories, taking part in relevant meetings and submitting national reports as outlined in Annex B’.Footnote 65 Annex B of the Framework provides guidelines on national submissions of information.
The adoption of the Framework by the Arctic states follows a trend in international climate change cooperation towards fragmented and informal climate governance arrangements.Footnote 66 However, the Framework distinguishes itself from other climate governance instruments in one important respect. As an intergovernmental instrument, the Framework escapes the criticism commonly directed towards transnational governance regarding rule making by non-state actors.Footnote 67 So, while the Framework’s soft law nature could limit its legal relevance and its impact on emissions mitigation, its adoption – viewed in light of the difficulty of achieving legally enforceable, specific and substantive collective commitments in global climate negotiations – may signal the beginning of an experiment in climate governance.
In many respects, the Framework resembles what De Búrca, Keohane and Sabel have termed ‘global experimentalist governance (GXG)’:
[A]n institutionalized process of participatory and multilevel collective problem solving, in which the problems (and means of addressing them) are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in the light of locally generated knowledge.Footnote 68
GXG, as an iterative and non-hierarchical form of global regulation, involves ‘the deliberative and inclusive redefinition, based on exchanges of information and experience over time, of the preferences and goals that it fosters’.Footnote 69 The authors further point to other attributes that make GXG a desirable form of collective rule making: discussion and perception sharing/building, framework articulation, contextually situated implementation, observation and review.Footnote 70
The Arctic Council Framework, with its emphasis on continuous learning and national autonomy and its non-hierarchical monitoring system, demonstrates several key features of a GXG regime. Firstly, the Framework is intended to serve as an evolutionary mechanism. States’ national action plans and mitigation strategies are to be strengthened over time as a result of the collective learning experience set in motion through a two-year iterative review process.Footnote 71 The expert group leading the review process is mandated to propose improvements to the Framework and its Annexes and to propose options in relation to the collective quantitative goals referred to in the ‘common vision’ of the Framework.Footnote 72 Secondly, in terms of implementation, the Framework underscores the importance of collective action in sectors ‘identified as the most significant and emerging sources of anthropogenic black carbon and methane’.Footnote 73 It encourages states to report on key mitigation actions and best practices by sector, while at the same time providing flexibility in the way in which this information is summarized. In a sub-section titled ‘Increasing Awareness’, the Framework underscores the importance of contextual factors, such as sub-national governmental collaboration on ‘projects that strengthen local capacities to identify, mitigate, and prevent localized pollution’.Footnote 74 In another section, private sector actors are encouraged to participate in implementing the Framework as appropriate. Finally, the expert group review process is primarily focused on achieving collective progression from individual national experiences and the proliferation of best practices, and hence is very different from punitive or compliance-based approaches to monitoring.
Another necessary dimension of GXG regimes is the presence of a ‘penalty default’ or ‘shadow of power’ that incites parties to cooperate, generally under the potential threat of a less desirable alternative outcome.Footnote 75 Currently, it is not clear that an Arctic Council or observer state that fails to implement the Framework would experience any specific drawbacks – aside from, of course, the continued deterioration of local environmental and human health – as compared with those states that follow through with its implementation. Unlike a club governance approach, where participation and compliance are incentivized by a structure of exclusive benefits,Footnote 76 implementation of the Framework for BC and methane is not linked to any enhanced Arctic entitlements.
Therefore, the Arctic Council may lack a sufficient ‘shadow of power’ to induce effective international participation comparable with an authoritative institutional setting. Arctic Council observers and other non-Arctic states may be reluctant to commit themselves to SLCP emissions reduction targets in the context of an intergovernmental forum to which they will never fully belong. The following section explores how the Arctic Council might enhance its influence on regional and global environmental governance.
4.3. The Arctic Council and Prospective ‘Shadows of Power’
Arctic Council observer states such as China and India have much to offer the global ecosystem in adopting the Framework for BC and methane, as they are substantial emitters of SLCPs and GHGs. At the same time, these states may well perceive that any commitments they undertake to reduce BC and methane emissions under the Arctic Council will place them at a competitive disadvantage relative to states that refuse to regulate SLCP emissions to the same degree. In order to compel these and other states to embark on the Framework, it may be necessary to introduce participation incentives. For instance, if non-participation is perceived to lead to exclusion from broader Arctic governance and from the Arctic Council community, non-Arctic states may be more inclined to implement the Framework. The benefits of cooperation and the disadvantages of non-participation in voluntary Arctic Council initiatives are likely to become more apparent as the Arctic Council continues to assert a predominant role in the stewardship of the Arctic life space, especially with regard to the Arctic marine environment and the shaping of Arctic issues in multilateral settings. A stepping stone in this regard is reflected in the proposal to establish a dynamic Arctic Ocean Coordinating Agreement (AOCA) under the Arctic Council. The AOCA would serve as a scientific knowledge-generation platform as well as an informal convening mechanism for the systematic coordination of international, regional, and national efforts addressing Arctic Ocean governance issues.Footnote 77 At the same time, any Arctic Council agreement aiming to coordinate activities beyond the jurisdiction of Arctic states – such as within the Arctic high seas – would clearly be met with apprehension by non-members of the Arctic Council. Even within the Council, the issue of Arctic Ocean governance is highly contested, as when the Arctic coastal states decided to exclude other Arctic Council members from participating in recent collaborative decision making on the Arctic Ocean.Footnote 78
Since its inception, the Arctic Council has played an unprecedented role in producing scientific knowledge on the Arctic and, to a lesser degree, in voicing Arctic environmental concerns in various international fora.Footnote 79 The challenge today is to transform the Council’s strengths into an influential Arctic voice in global environmental governance, in particular with regard to regulatory issues that implicate the Arctic environment, such as worldwide emissions of GHGs and SLCPs. To work towards this objective, several pathways could be explored, ranging from the negotiation of new agreements under the Council to broader institutional restructuring. Transforming the Arctic Council into a formal, treaty-based, regional organization would not necessarily enhance its authoritative global environmental influence and, moreover, would remove the cooperative and consensual essence that is widely perceived as having propelled its success and relevance. Although the adoption of an AOCA could pave the way for a coordinated Arctic voice in international governance initiatives, it remains unclear to what extent such an agreement might influence decision making beyond the jurisdiction of Arctic states, or how it could enhance the bargaining power of the Arctic Council in global environmental negotiations. Furthermore, the Council’s inner tensions attest to the reality that a coordinated Arctic voice may not be an easily realizable objective.
As emphasized by Young, ‘the most acute environmental problems in the region ... are products of global forces; they cannot be addressed through the development of Arctic regimes’.Footnote 80 Still, deeper engagement with the Arctic Council and its emerging environmental governance mechanisms could become important for non-Arctic states wishing to secure their participation in the exploitation of the region’s marine resources.Footnote 81
5. EXPERIMENTATIONS IN LAW: TRAVERSING THE SPECTRUM
Global trends towards the adoption of informal climate and air pollution governance mechanisms and a concomitant thinning of international legal obligations in these realms shine a new light on the relationship between ‘hard’ and ‘soft’ framings of law and their respective implications for international cooperation. The hard law–soft law discourse ultimately draws attention to the persistent dilemma experienced in all fields of international law: striking the right balance between law’s flexibility (its inherent evolutionary nature) and its binding authority (its reliability and predictability).Footnote 82 The trend towards international hard law mechanisms that emerged in the second half of the 20th century has been overtaken by the rapid production of soft law in environmental, trade, and social spheres.Footnote 83 Under the UNFCCC, international climate law navigated away from orthodox international legal formalism; the market-based Kyoto Protocol delegated a central role to non-state actors.Footnote 84 More recently, the legally binding dimension of the newly negotiated Paris AgreementFootnote 85 extends only to informational processes and procedural requirements, with the actual substance of NDCs to global emissions reduction remaining, in essence, aspirational (that is, not enforceable under international law). Slaughter characterizes the Paris Agreement as ‘not law’ but ‘public problem solving on a global scale’.Footnote 86 For Haas, the new climate treaty is an example of ‘green pluralism’,Footnote 87 an emerging political approach to international cooperation that innovates in its reliance on private sector and civil society actors in tracking national commitments and compliance. Overall, it needs to be emphasized that despite the legally binding nature of the Paris Agreement, NDCs remain non-binding. Moreover, as Bodansky highlights, the treaty relies on ‘transparency rather than legal enforcement to promote accountability and effectiveness’.Footnote 88 These developments prompt a rethinking of the meaning and nature of international law and, in particular, of the kinds of expectation appropriate to legal processes on a global scale. What the Paris Agreement signals foremost is that local, national, and regional scales of governance will be central in shaping the actual substance of international environmental law.
The crisis of climate change requires a constant, critical re-evaluation of our international legal order, and thus of our framing of and hopes for international legal thought.Footnote 89 Although Arctic climate change is a global matter, treating Arctic problems within existing global regulatory regimes and dominant discursive paradigms may neglect the significance of local and regional social and environmental claims, leading to a homogenization of the Arctic life space. This homogenization is illustrated by Stepien and co-authors in their discussion of how the notions of vulnerability and adaptation that dominate climate change scholarship, along with the technical framing of environmental phenomena, have excluded certain Arctic problems from political and scientific discourse.Footnote 90 Such homogenization can be seen as one of the epistemological and spatial limitations of conventional international legal thought. Although international treaties embody universalist ideals centred on a common humanity, the structural imbalances and interpretative styles of our international legal order are historically linked to the exploitation of human and environmental resources for exclusionary economic purposes.Footnote 91 In particular, Arctic indigenous peoples, though influential in international norm creation on certain issues, have never been able to crystallize their full participation.Footnote 92 Conversely, within the Arctic Council, Arctic organizations of indigenous peoples are granted active participation in and full consultation on all aspects of the Council’s work, a status giving rise to a ‘de facto power of veto should they all reject a particular proposal’.Footnote 93
The institutional composition of the Arctic Council and its soft law approach allow it to surpass the epistemological limitations of the traditional international legal order in that the centrality of indigenous participation alters the nature of scientific knowledge that is, and can be, produced.Footnote 94 In this respect, Koivurova and Heinämäki remark that soft law possesses a ‘revolutionary potential’Footnote 95 for Arctic organizations of indigenous groups, as a norm-making method that is not dependent on international law’s state-based structures.
The spatial limitations of international law include its general failure to see global problems across the multiple scales upon which they are experienced and ordered. Because international legal realms restrict access to participation in the circuits of international negotiation, communication, and exchange, and have been constructed on the mythical idea of the homogenous state, they can produce only limited spatial understandings of environmental problems such as Arctic warming. By comparison, the transnational features of the Arctic Council enable it to produce innovative models and tools for cooperation that reflect more inclusive legal geographies of Arctic life space. This is because the Arctic Council introduces a different scale and framing for regulatory experimentation on the global commons. The Arctic Council maintains a distinct regional voice that all the while remains permeable to global actors. The focus on the regional ensures the precedence of local contexts and the enhanced engagement of indigenous peoples, as the Arctic Council is the only intergovernmental organization to centralize the participation of indigenous peoples. These organizational features make it an important forum on the international scale and place it at the forefront of a new, globally located Arctic epistemic community,Footnote 96 producing knowledge that remains dismissed or difficult to locate within the traditional fragmented spheres of international law. For the most part, international legal regimes engage with non-state actors only at a distance and often exclusively from the perspective of states parties. As such, certain Arctic actors and issues are bound to gain more visibility and voice than others under international law. In this context, the Arctic Council can exert pressure on the architecture of international law while also providing a platform for a more representative array of Arctic actors to negotiate their modus vivendi in the hope of a more inclusive Arctic future.
6. CONCLUSION: VOICES AND PLACES OF ARCTIC GOVERNANCE
While the mitigation of SLCPs such as BC and methane represents a new branch of global climate concern, the issue has thus far been integrated haphazardly into international law. In the meantime, the urgency of regulating SLCP emissions is becoming more and more evident. As a component of fine PM, the World Health Organization (WHO) estimates that global BC emissions contribute to 4.3 million deaths annually from household air pollution and 3.7 million deaths from ambient air pollution.Footnote 97 Moreover, in terms of contributing to climate warming, human emissions of BC are considered to have the most powerful forcing effect behind emissions of CO2.Footnote 98 Considering the short atmospheric lifetime of BC and other SLCPs, reducing their emissions will generate immediate benefits in terms of protecting human health and slowing the rate of warming over the coming decades.Footnote 99 In light of the time-sensitive dimension of the problem of regulating SLCPs, and the notoriously lengthy delays and time frames of international legal processes, the new Arctic Council Framework provides a unique opportunity. The Framework supports the work of existing international legal institutions by disseminating and utilizing their reporting mechanisms and, at the same time, produces a new kind of transnational and multi-stakeholder knowledge network and collective vision on BC and methane.
The various institutions and mechanisms of international law interpret and help to construct scientific knowledge in different ways. Often, the rationality of international law can be elusive, as revealed by the recent attempt by the International Law Commission (ILC) to map out a set of comprehensive international legal principles and rules that can be derived from current state practice on the protection of the atmosphere.Footnote 100 While the project is intended to draw out the general legal rules and principles emerging from the many treaties that currently regulate the atmosphere in one way or another, the ILC’s constrained approach to this codification has been criticized for diluting the project’s scope and importance.Footnote 101 As Sand and Weiner point out, the Commission’s decision to not address BC and other ‘dual-impact substances’Footnote 102 means that in the ILC’s legal analysis, atmospheric pollution is narrowly understood as resulting from gaseous emissions only – a definitional caveat that has no scientific basis whatsoever and can be considered politically motivated above all else.Footnote 103 As such, the process of codification of ‘an international law of the atmosphere’ will fail to address a range of emissions that are increasingly seen as one of the most threatening sources of both atmospheric pollution and global warming.
In light of the current failure of the international legal system to address atmospheric pollution in its fullest and most meaningful sense, and at a time when the disastrous health and climate impacts of BC and other SLCPs are becoming increasingly evident,Footnote 104 the Arctic Council’s Framework for BC and methane indicates progressive intergovernmental action between the eight Arctic states. The Framework’s adoption signals the beginning of a new era of climate governance as it represents the first time that Arctic States have elaborated climate mitigation goals under a common vision and extended to the international community an invitation to work together on a problem of global magnitude.
