The Arctic Council – Reforming a Missed Opportunity for Indigenous Rights

Eric Gripp

Vol. 43 Associate Editor

Those most affected by climate change are being denied the right to have their voices heard. This is evident from how indigenous peoples are currently situated within the Arctic Council. The Arctic Council is an intergovernmental forum whose self-professed goal is “promoting cooperation in the Arctic.”[1] However, the very structure of the Arctic Council betrays this lofty goal in two key ways. First, the Arctic Council denies its indigenous members the right to vote on final proposals. Second, the Arctic Council’s legal mandate remains limited. These two burdens on indigenous voices are unacceptable. Indigenous peoples of the arctic are the ones facing the brunt of Arctic climate change. The legal barriers to indigenous voices must be addressed to refocus the Arctic dialogue where it is needed most, with the indigenous groups impacted by climate change. I. The Unique Impact of Climate Change on Arctic Indigenous Groups The debate regarding the Arctic Council must include the human element which is embodied by the people of Newtok, Alaska. This small village is one of many examples of how the indigenous peoples of the arctic are on the front lines of climate change. The largely indigenous inhabitants of this village became “some of North America’s earliest climate change transplants.”[2] This is because the Arctic is warming considerably faster than the rest of the world.[3] For decades this village sat on the Ninglick River near the Bering Sea. As the climate warmed, the permafrost melted and erosion intensified. [4] As a result, the town’s position became ever more tenuous. Foundations began to buckle and roads were washed out. This shows no signs of stopping as the water moved about eighty-three feet per year closer to the village’s homes.[5] As a result, Newtok’s residents have been forced to uproot their lives and try to rebuild elsewhere.[6] “Many folks are not happy to be leaving the place they’ve known their whole lives.”[7] Newtok is not an isolated incident. As an example, the Inuit, who inhabit lands from Alaska to Greenland, face melting permafrost, erosion, and even invasive species.[8] The Inuit’s culture is uniquely related to the Arctic ecosystem which is shifting rapidly due to industrial and political forces thousands of miles away.[9] To the Arctic Council, the stories of these people deserve not even a single vote. II. The Structural Shortcomings of the Arctic Council The Arctic Council’s unique combination of sovereign nations and indigenous groups is betrayed by the latter group being denied a vote, or, as a minimum, a vote to veto decisions that do not benefit the indigenous participants. The Council is composed of eight arctic states, Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States.[10] The Council is also populated by six “Indigenous Permanent Participant organizations” including the Aleut, Athabaskan, Gwich’in, Inuit, Saami, and the Russian Association of Indigenous Peoples of the North.[11] The Arctic Council should be applauded for the fact that its “composition of states and indigenous peoples at the same table is unique in multilateral fora.”[12] However, while the Arctic Council offers indigenous peoples a seat at the table, “[a]ll Arctic Council decisions and statements require consensus of the eight Arctic States.”[13] In fact, the Ottawa Declaration, the Council’s founding document, takes it a step further by explicitly stating that their Permanent Participant status does not confer any legal recognition as “peoples” nor “the rights which may attach to the term under international law.”[14] Even if indigenous peoples were given the right to vote, this would be stymied by the Arctic Council’s lacking legal mandate. Unlike other international organizations, the Arctic Council was created without a separate independent organization to carry out its functions.[15] The founders of the Arctic Council “took great care at the Arctic Council’s inception to make clear that it did not have a legal personality” nor constitute a “formal legal regime.”[16] Additionally, the Arctic Council has a limited mandate which concerns only environmental protection, sustainable development, and assessment.[17] Additionally, there is no permanent funding scheme.[18] Unlike most international organizations, the Arctic Council was founded by a ministerial declaration, not a binding treaty.[19] All the previous shortcomings ensure the Arctic Council will be entirely beholden to the goodwill of its eight member Arctic states. This is a sobering thought considering most of the central governments of these Arctic states are located over a thousand miles away from the Arctic. Further, these governments will have national economic or security concerns that are counter to the Arctic Council’s purpose. For example, while the Biden Administration halted the extension of the Keystone XL Pipeline, it also began applying pressure on Russia to trade more oil with the United States.[20] Russia is currently developing an arctic oil project that will produce 25 million tons of oil per year.[21] Thus, even a government facially committed to climate change concerns appears to be offshoring these concerns elsewhere. While many of these nations can ignore the effects of climate change, the indigenous in the Arctic do not have that luxury. III. Conclusion The problem for indigenous representation in the Arctic Council is twofold, representational and structural. The representational problem arises from the lack of any official binding vote for indigenous groups. Sovereign nations have thus far been unwilling to grant a full vote to these indigenous groups individually. However, perhaps a compromise could be found by giving these groups either a single vote collectively or a limited veto. The structural problem arises from the Arctic Council’s lack of an independent legal identity or funding mechanism. There are two ways to alleviate these problems. First, amending the Ottawa Declaration so that the Arctic Council both has an actual legal personality and a more express requirement that members agree to implement its decisions. Second, the scope of funding must be expanded. This could perhaps be accomplished via a membership fee from members, or at the very least, a requirement that any final decisions include a funding provision. Even with its shortcomings, the Arctic Council has been able to produce three legally binding agreements in recent years.[22] Imagine what would be possible if the Arctic Council was strengthened into a full international organization comparable to the Organization of American States or the World Trade Organization. The unique opportunity of having sovereign nations and indigenous people at the same table could then be more fully realized.

[1] Arctic Council, https://arctic-council.org/ (last visited Nov. 1, 2021). [2] Craig Welch, Climate Change Gas Finally Caught Up to This Alaska Village, Nat’l Geographic, (Oct. 22, 2019), https://www.nationalgeographic.com/science/article/climate-change-finally-caught-up-to-this-alaska-village. [3] Shaugn Coggins, James Ford, et. al., Indigenous Peoples and Climate Justice in the Arctic, Geo. J. Int’l Affs. (Feb. 23, 2021), https://gjia.georgetown.edu/2021/02/23/indigenous-peoples-and-climate-justice-in-the-arctic. [4] Welch, supra note 2. [5] Id. [6] Id. [7] Id. [8] Duane Smith, Climate Change In The Arctic: An Inuit Reality, U.N. Chronicle, https://www.un.org/en/chronicle/article/climate-change-arctic-inuit-reality. [9] Id. [10] Arctic Council, supra note 1. [11] Id. [12] Betsy Baker, Offshore Oil and Gas Development in the Arctic: What the Arctic Council and International Law Can—and Cannot—Do, 107 Proceedings Before The ASIL Annual Meeting 275, 276 (2013). [13] Arctic Council, supra note 1. [14] Arctic Council, Ottawa Declaration, (September 19, 1996), https://oaarchive.arctic-council.org/handle/11374/85. [15] Id. [16] Baker, supra note 13. [17] Timo Koivurova, How to Improve Arctic International Governance, 6 U.C. Irvine L. Rev. 83, 93 (2016). [18] Id. [19] Shiloh Rainwarer, International Law and the “Globalization” of the Arctic: Assessing the Rights of Non-Arctic States in the High North, 30 Emory Int’l L. Rev. 115, 139 (2015). [20] Kenneth Rapoza, SOS OPEC+: Suddenly, The Western World Needs Russian Energy Amid Sanctions, Forbes (Nov. 11, 2021 7:05AM), https://www.forbes.com/sites/kenrapoza/2021/11/11/sos-opec-suddenly-the-western-world-needs-russian-energy-amid-sanctions/?sh=55ac40626fb9. [21] Molly Taft, Russia Begins Development on Arctic Oil Project That Will Produce 25 Million Tons of Oil Per Year, Gizmodo, https://gizmodo.com/russia-s-new-arctic-oil-development-is-a-nightmare-1846991892. [22] Sabaa A, Khan, Legally Sculpting a Melting Arctic: States, Indigenous Peoples and Justice in Multilateralism, in 74 Changing Actors In International Law 130, 154 (Karen N. Scott et al. eds., 2020).