The EU as a Prospective Permanent Observer to the Arctic Council: Footholds, Virtues, Concerns and Obstacles (Part 2)





The EU as a Prospective Permanent Observer to the Arctic Council: Footholds, Virtues, Concerns and Obstacles (Part 2)

By Kathrin Keil, October 31, 2012


This article is based upon a presentation that the author gave at a workshop at the Rideau Institute in Ottawa on 27 September 2012. The workshop’s title was “Circumpolar Challenges: an Ambitious Agenda for the Arctic Council.” Part 1 can be found here.

Part II: Concerns and Obstacles

First of all, the EU has overall only weak legal links to the Arctic region and is thus mostly described as an external Arctic actor. However, against the background of the multiple EU-Arctic links as outlined above, some argue that the EU should be seen distinct from its member states because many policy areas that are also of relevance to the Arctic are already regulated at the Commission level and not by member states alone. [1]

There are potential concerns among the Arctic Council member states that there would be a stronger use of the rule that the EU’s member states, in this case Sweden, Finland and Denmark, have to coordinate their standpoints before meeting in international fora and are required to uphold existing EU positions. This concern is based upon Art. 34 of the Treaty on the European Union (TEU), which says in its first paragraph:
Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union’s position in such forums. The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination….In International organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Union’s position.
Such a provision provides well-grounded concerns over the European Union potentially overstepping its observer competencies.

Among the difficulties of a prospective EU observer role is that most Arctic issue areas are EU areas of mixed competence between the Commission and the member states. This includes fisheries (with the exception of conservation of marine biological resources under the common fisheries policy, which is an exclusive competence of the Commission), environment, transport, and energy (with the exception of measures affecting a member state’s right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, which are all issues upon which the Council acts unanimously).

There are also many ‘grey zones’ among EU Arctic issue areas where it is unclear if and how much competence the EU indeed has because some Arctic policies might fall under more than one competence. Related to this aspect are doubts that EU is able to construct a common Arctic policy given the diversity of its member states. Some member states might have either conflicting views on the concrete content of EU Arctic policies or do not have enough interest to pursue Arctic issues at all.

Apart from all these rather practical issues, the question remains why an overarching EU Arctic Strategy is necessary in order to substantiate the EU’s policy aims in the Arctic, especially against the background of the strong bilateral and regional ties that the Union already has with various Arctic states (as outlined above). It seems more appropriate to speak of single EU Arctic policies instead of a full-fledged strategy. Moreover, one could ask why an EU Arctic approach is at all necessary and why the existent bilateral and multilateral cooperation agreements with their foci on energy, sustainable development, climate change, environmental protection, transport, infrastructure etc. should not rather be further developed to include an Arctic dimension where this has not yet occured. This would also take account of the diverse circumstances in the many regions of the Arctic [2] and would surely do a better job than a one-size-fits-all Arctic Strategy.

In other words, it is not entirely clear what has changed to precipitate a need for specific EU Arctic policies above and beyond the policies and cooperation agreements it already has with the respective Arctic states in the respective issue areas. Furthermore, developing an Arctic strategy over an area covered by national jurisdictions might be interpreted as interfering in internal or sovereign affairs of the Arctic coastal states.

As a comparison, the UK (a permanent observer to the Arctic Council) has a ‘British Arctic Policy’ and not a full-fledged strategy. This is justified with the fact that the UK does not have sovereignty in the Arctic. Jane Rumble, Head of the Polar Regions Unit at the British Foreign and Commonwealth Office, recently voiced concerns that developing a strategy would be a sensitive issue because some of the Arctic States feel that for an observer country to have a strategy that concerns areas of national jurisdiction and territory of the sovereign States in the Arctic might be a step too far. During the same hearing, Henry Bellingham, British Minister for the Polar Regions, expressed this concern very clearly: “Why is the EU interfering in someone else’s sovereign area? If those countries started developing strategy for maybe the North Sea or the Irish Sea we would feel maybe it was outside their areas of responsibility”. [3]

Members of the European Parliament have not been particularly sensitive when it comes to paving the EU’s way into the Council. In September 2012 some members of the EP's environment committee added amendments to a Commission proposal on new safety rules for offshore oil and gas calling for an Arctic drilling moratorium and questioning the region's governance structures. Once amendment went so far to say that “Member States […] shall not grant licences for exploration and/or drilling for oil and gas in the Arctic nor in fields extending into the Arctic.” As no EU member state has any jurisdiction over Arctic waters, this rule would be a tricky one to violate, and yet still made it into an amendment. Although the drilling moratorium has been rejected by the industry committee [4], the whole story shows that the EU is not a coherent actor on Arctic issues, which does not make it more attractive as a permanent observer to the Arctic Council member states.

Other examples include former MEP Diana Wallis’ document on The Spitsbergen Treaty from October 2011 [5] suggesting the need for a revision of the current Arctic regime, which raised eyebrows in Norway, and the already mentioned 2009 EU ban on seal products from commercial hunting, which has been perceived as undue interference in Arctic affairs. [6]

Again, current permanent observers like the UK show a more sensitive approach. For example, Chris Barton, Head of International Energy Security at the British Department of Energy and Climate Change, said during an Oral Evidence before the House of Commons on 5 July 2012 that regulation of oil and gas exploration and exploitation in the Arctic is for the Arctic states, i.e. the countries holding jurisdiction in the respective territories and waters, to decide. The prime way that the UK government can help protect the Arctic is through action on climate change and leading by example in their own offshore hydrocarbon development activities. [7]

Finally, it remains unclear what the inclusion of the EU as a permanent observer to the Arctic Council would actually mean in terms of concrete content and contribution and apart from its (possibly purely?) symbolic nature. The actual capacities of the observers to the Arctic Council are limited, naturally, as they are observers and not members. As an example, it is current Arctic Council policy to exclude observers from contributing to the work on legally binding agreements, such as the present discussion on oil spill response measures. Jane Rumble brought it to the point again: “[M]ost of [the UK’s role as a permanent observer] is in the advocacy area of trying to support what they [the Arctic Council member states] are doing among themselves“.

Conclusion
The EU appears to have a different understanding of the Arctic region than the Arctic coastal states. Instead of viewing the Arctic as no more than the sum of national, territorially fragmented nation-states, the EU sees a complex region with effects on the whole planet, which demands common and cooperative responses due to shared responsibilities. Against this background, its already existing multiple institutional and policy links make sense.

One can also add a geoeconomic and geoecological explanation or justification for EU involvement in the Arctic. The realities of today’s interdependent and globalised world, the necessity to cooperate in international and regional institutions, and the need to overcome national borders and boundaries to tackle all-encompassing problems like environmental destruction and consequences of climate change all appear as well-grounded arguments for the Union’s involvement in Arctic issues.

While the broad reasoning for EU involvement in the Arctic appears conclusive, some concerns and obstacles remain especially given that the approach the EU has taken so far to substantiate its Arctic role is inconcrete. Thus, what is urgently needed in this debate is a substantial explanation and honest deliberation about how the EU’s role as a permanent observer changes Arctic governance. Koivurova et al’s argument about better learning and sensitising opportunities makes sense and is a first step.

However, it also should be acknowledged that an EU permanent observer role in the Arctic Council probably does not have substantial policy and governance implications for Arctic affairs because the EU is already strongly involved in Arctic matters. This stance would both clarify for the EU its competences and tasks as a permanent observer and better delineate  the implications of such a move for the Arctic States.


[1] Timo Koivurova et al., “The Present and Future Competence of the European Union in the Arctic,” Polar Record 48, no. 04 (July 8, 2011): 361–371.
[2] Andreas Østhagen, “The Arctic and the Need for Greater Differentiation in a Non-Coherent Region” (Washington, DC: The Arctic Institute, 2012), http://www.thearcticinstitute.org/2012/02/arctic-and-need-for-greater.html.
[3] UK Parliament - Environmental Audit Committee, “Environmental Audit Committee - Protecting the Arctic - Minutes of Evidence HC 171” (London, 2012), http://www.publications.parliament.uk/pa/cm201213/cmselect/cmenvaud/171/120705.htm.
[5] Diana Wallis et al., The Spitsbergen Treaty - Multilateral Governance in the Arctic, ed. Stewart Arnold and Diana Wallis, Africa, vol. 01 (Brussels: European Parliament, 2011).
[6] Kuupik Kleist, “Speech at the Seminar on Greenland and the Arctic, Greenland’s Approach to EU’s Arctic Communication,” Kalaallit Nunaanni Namminersorlutik Oqartussat (Brussels, 2009), http://eu.nanoq.gl/emner/eugl/~/media/CF10597313C04F94920CD8ACE17EDEB3.ashx.
[7] UK Parliament - Environmental Audit Committee, “Environmental Audit Committee - Protecting the Arctic - Minutes of Evidence HC 171” (London, 2012), http://www.publications.parliament.uk/pa/cm201213/cmselect/cmenvaud/171/120705.htm.