This paper was published in 2016 by the Scholarship Repository of the University of Minnesota Law School. It comprises of an article that addresses the issues related to the complexity and fragmentation of existing governance arrangements regulating the Arctic offshore oil and gas industry. It proposes to analyse these challenges through a perspective of “hybrid cooperation”, in which diverse public and private stakeholders at different levels of governments aim to coordinate their efforts to create institutions or integrate each other’s standards in the form of agreements and regulations. Since it is a substantial paper (more than 80 pages), this overview will be limited to the chapter that describes the current international regulatory approaches to Arctic offshore oil and gas.
The most significant treaty relevant to Arctic offshore energy development is the United Nations Convention on the Law of the Sea (UNCLOS). The UNCLOS was adopted in 1982 and currently includes 167 states, including all the Arctic sates, except the United States. Over the past years, it has served as the main mechanism for resolving Arctic continental shelf and maritime boundary claims, which define the countries’ right on natural resources under the Arctic Ocean. Russia was the first country to bring claims to the United Nations Commission on the Limits of the Continental Shelf (CLCS) in 2001 and since then other Arctic states have claimed rights on resources that they believe are located on their continental shelf. The prevalence of UNCLOS as the primary mechanism to resolve territorial disputes was officially recognised by all Arctic states in 2008 through the Ilulissat Declaration. Although UNCLOS is playing a prominent role in recommending how to delimitate the Arctic Ocean, it does not establish governance structures for offshore Arctic hydrocarbon development and fails at addressing the rights and role of non-state actors such as indigenous communities. These questions are however addressed in the format of the Arctic Council, which is the only comprehensive circumpolar institution in the Arctic. Established in 1996, it comprises of eight Arctic countries and six indigenous people organizations that act as permanent participants. The Council also has 32 observers including 12 non-Arctic states. Two noteworthy agreements regarding the oil and gas sector were produced by the Council: the 2011 Agreement on Cooperation in Aeronautical and Maritime Search and Rescue in the Arctic; and the 2013 Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic. A Framework Plan was also adopted in 2015 with the support of representatives from the industry and the indigenous peoples. A business forum (the Arctic Economic Council) was also implemented in 2014, comprising of several oil and gas industry executives. Despite the recent tendency of the Arctic Council to establish itself as policymaking regime, the real scope of its influence on the oil and gas industry remains highly debated and it appears that international trade associations and standard-setting organizations often provide a more effective framework to set standards and promote good practices in the industry. Among them, the International Oil and Gas Producers Association (IOGP), IPIECA (global oil and gas industry association for environmental and social issues) and the International Organization for Standardization (ISO) have taken recent steps to support safer and more effective industry practices in the Arctic. They have created special committees, task forces and working groups to address key Arctic issues and develop standards for safe and effective Arctic oil and gas operations that protect the environment and the people working and living in the circumpolar regions.
Hari M. Osofsky, Jessica Shadian, and Sara L. Fechtelkotter, “Arctic Energy Cooperation”, 49 U.C. Davis L. Rev. 1431 (2016), available at: http://scholarship.law.umn.edu/faculty_articles/479