Insight: “EU Arctic Policy: Room to take more action” by Anjum Shabbir
According to a consultation opened recently, the Commission is picking up on where its ‘EU Arctic Policy’ was left on 27 April 2016, when a Joint Communication with the EU’s External Action Service was published, the third such Communication (followed by Council Conclusions in June that year. That 2016 Communication reiterated three policy priorities:
- climate change protection and mitigation,
- sustainable development, and
- international cooperation.
Those priorities seem not to have been updated by any EU Institutional actor or to have changed since 2008, as mentioned in an earlier Joint Communication, also from the Commission and EU’s External Action Service, on 26 June 2012.
An exact geographical definition of ‘Arctic’ has not been agreed, but broadly includes eight countries. The Arctic region is important for the European Union at the most basic level merely by virtue of it including EU territories: Member States Finland, Denmark (including Greenland – an EU overseas territory which has fisheries and trade agreements with the EU – and the Faroe Islands) and Sweden, as well as EEA members Iceland and Norway.
However, it is also made up of third countries that are global superpowers: the US, Russia and Canada – and the Arctic Ocean: mostly international waters.
This means that international cooperation in general for an EU-Arctic policy is fundamental – and that EU bases to legislate are limited. Although the European Commission is a full member of the Barents Euro-Arctic Council (and on the board of the Sustained Arctic Observing Network), more relevant in terms of influence and decision-making is the Arctic Council. The latter was founded by the eight Arctic countries referred to above by the 1996 Ottawa Declaration, with the aim of promoting sustainable social, economic and environmental development in the region. The EU however is limited in what action it can take as it applied for observer status in 2008, which according to this 2018 report, does not appear to have been confirmed.
Environmental law obligations: international and EU-levels
Apart from the fact that the region includes EU territories and citizens, it is crucial for the EU to act in this area due to the international environmental commitments it has entered into (the Paris Agreement, which entered into force on 4 November 2016, and the commitment to achieve the Sustainable Development Goals by 2030). The EU simply cannot avoid this region in its own compliance with those obligations and commitments, as it has been known for many years that the Arctic is heating up twice as fast as the rest of the world, that it is both affected by and has an enormous impact on climate change, because the environmental crisis has no borders, and due to its own commercial activities in the region.
Its six to seven-month old ambitious EU environmental policy that aims to fulfil those international obligations – the European Green Deal, and the EU’s commitment to reducing greenhouse gas emissions substantially under the EU 2020 Climate and Energy Package (greenhouse gases affecting permafrost thawing) do arguably grant the EU more licence to act, under Article 192 TFEU.
Moreover, EU environmental law is not completely silent with respect to regulation concerning the Arctic. For example, (i) under the EEA Agreement, Arctic countries Iceland and Norway have made commitments to preserve the quality of the environment and ensure the sustainable use of natural resources in line with EU legislation; (ii) Decision 1386/2013 on a General Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’ notes that many of the priority objectives ‘can only be fully achieved as part of a global approach and in cooperation with partner countries’ giving particular emphasis to the ‘Arctic regions’; (iii) the Marine Strategy Framework Directive 2008/56 refers to serious environmental concerns, in particular those due to climate change, relating to the Arctic waters: ‘a neighbouring marine environment of particular importance for the Community’ which ‘need[s] to be assessed by the Community institutions and may require action to ensure the environmental protection of the Arctic’; (iv) Directive 2013/30 covers safety of offshore oil and gas operations, providing minimum requirements for preventing major accidents in offshore oil and gas operations and limiting the consequences of such accidents; and finally (v) EU participation in the negotiations on an international agreement to prevent unregulated fisheries in the Central Arctic Ocean is a field which falls under the EU’s exclusive external competence, which led to a commercial fishing ban in the Arctic high seas for at least 16 years. Note also that Article 189 TFEU confers on the EU a shared space competence with the Member States, and Europe’s global satellite navigation system Galileo covers the Arctic – relevant because climate research and environmental protection in the Arctic, monitoring of the ocean and ice, provision of satellite navigation in order to ensure safer modes of transport in the Arctic all rely heavily on space systems.
In any event, the environmental crisis heightens the need for international cooperation, and could be addressed partly through the continued promotion by the EU of a rules-based international order (a promotion that the German Presidency has committed to – see page 21 of the work programme), by new international and mixed competence agreements, and by imposing EU environment and sustainability rules specifically addressed to the EU Member State Arctic countries. It could perhaps also revise the mandate of the European Environmental Agency, which at present appears to have a rather weak mandate under Regulation 401/2009, focused only around providing information.
Economy and EU External Relations
The Arctic is not of inconsiderable economic significance for the EU. It is the main consumer of Arctic natural gas and energy, including through offshore oil and gas operation, including exploration, and also consumes other Arctic products (fisheries). The region also apparently holds vast reserves of natural resources (apparently one fifth of the world’s undiscovered hydrocarbon resources), and new waterways, shipping and transport routes have opened up (due to climate change), leading to business opportunities. (It remains to be seen whether the German Presidency’s commitment to incorporating corporate social responsibility into supply chain activities would reach companies in this region – see page 5 of the work programme).
(As an aside where trade is concerned, see the challenge brought before the Court of Justice seeking annulment of the EU’s Regulation 1007/2009 banning trade in seal products in Inuit, C-398/13 P).
Indisputably, and a well-known fact, it is not only of great environmental, but also of great strategic importance: serious geopolitical interest is clear through the fact that observer status to the Arctic Council has also been granted to China, France, Germany, India, Italy, Japan, the Netherlands, Poland, Singapore, South Korea, Spain and the United Kingdom, and through the drilling authorisations that have been granted by the US.
Human Rights law
There are also human rights that must be protected under EU law in respect of citizens living in the Arctic Member States. One third of the four million people living in the Arctic region are members of indigenous groups, and include the last indigenous peoples in the EU: the Saami people, who live in the Member States Finland and Sweden (as well as EEA State Norway and third country Russia).
EU engagement towards indigenous peoples thus far has taken place – again in an international context – under the UN Declaration on the Rights of Indigenous Peoples of 2007. The Sustainable Development Goals 4.5 also includes ensuring equal access to all levels of education and vocational training for indigenous peoples, including in their own languages (see the German Presidency’s expression of commitment to work on those goals in page 15 of the work programme). The EU integrates human rights, including indigenous issues, into all aspects of its external policies, and by providing financial support through various initiatives to indigenous groups and local populations, such as through the European Instrument for Democracy and Human Rights.
Along with the financial support provided in the context of protection of indigenous peoples, there have also been EU programmes, such as the new Horizon 2020 Framework Programme, and the European structural and investment funds, that support major research projects in the region.
Funding should however increase, as this policy is evidently crucial for a variety of important reasons, with the commitment to dedicate over 30% of the EU’s whole budget to the pursuit of environmental protection (see the Multiannual Financial Agreement 2021-2027 agreed by the European Council yesterday – and pending the Commission’s legislative proposal, and the approval of the Council of the EU and Parliament).
Anjum Shabbir is an Assistant Editor at EU Law Live.