THE FOUR ARCTIC LAW PILLARS:
A LEGAL FRAMEWORK
EDWARD T. CANUEL*
ABSTRACT
Arctic law is an emerging legal discipline that transcends national boundaries, involves diverse stakeholders, and contends with multiple legal fields. This
Article proposes that Arctic law is the complex intersection of four distinct
“pillars”: international hard law, soft law, domestic law, and transboundary
private law. The evolving first pillar, hard law, focuses on legal instruments,
such as the United Nations Convention on the Law of the Sea, which cover issues
affecting the Arctic. Additionally, legal instruments such as the 2011 Agreement
on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic
suggest that the very definition of agreements considered “obligatory” may be
broadening. The second Arctic legal pillar, soft law, refers to non-legally-binding
international agreements and institutions such as the Arctic Council and the
influence of associated international norms. Domestic law is the third Arctic
pillar, providing insights into how an individual Arctic state’s legal systems
function. The fourth pillar, transboundary private law, describes the legal
challenges found in potential Arctic cross-border transactions, considering that
contracts spanning different legal traditions may yield unanticipated results in
practice. Objective pluralism is viewed as a useful tool to distinguish the
effectiveness of commercial transactions extending across borders.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. THE FIRST PILLAR: THE EVOLVING ARCTIC HARD LAW OF
UNCLOS, CUSTOMARY LAW, AND DOMESTIC LEGISLATIVE
PROCESSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
736
738
* The author, Dr. Edward T. Canuel, is the State Department Visiting Professor at the U.S.
Military Academy at West Point. A U.S. Foreign Service Officer, he has extensive international law
experience, particularly involving comparative contract, energy, and Arctic law. Dr. Canuel was
named the U.S. government’s candidate to lead the Arctic Council Secretariat in 2012. He
received his B.A. in Political Science and Philosophy from Boston College summa cum laude and
also a Juris Doctor from Boston College. He received his Master of Laws (Business Law) from
Osgoode Hall, where he was subsequently named a Visiting Scholar. Dr. Canuel received his Ph.D.
in international private law from the University of Oslo. This piece is derived from his inaugural
lecture, presented at Aarhus University on October 24, 2014, where he was named an Honorary
University Professor. Note that this document does not express the views of the U.S. government.
© 2015, Edward T. Canuel.
735
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
III. THE SECOND PILLAR: SOFT LAW AND ITS RISING IMPORT IN THE
ARCTIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. THE THIRD PILLAR: DOMESTIC ARCTIC LAW . . . . . . . . . . . . . . .
V. THE FOURTH PILLAR: THE CONFLUENCE OF PRIVATE AND
TRANSBOUNDARY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. CONCLUSION: EVER FORWARD? THE UNANSWERED QUESTIONS
OF ARCTIC LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
743
745
757
762
I. INTRODUCTION
The Arctic is no longer a far-flung place, a mysterious destination
inviting the imagination of explorers and inhabitants of the eight
Arctic states.1 Canadian Prime Minister L.B. Pearson urged (if not
presaged) that “‘Go North’ has replaced ‘Go West’ as the call to
adventure.”2 This call has been answered. Climate change impacts have
opened up tremendous commercial opportunities in and raised
international awareness of the Arctic’s increasingly accessible vast
hydrocarbon and mineral resources, burgeoning Arctic agriculture,
and time-saving seasonal maritime trade routes.3 The challenges, however, are stark: the Arctic is warming at nearly twice the rate of the rest
of the world, with sea ice decline and ice cap retreat occurring at
alarming rates.4 Actual and planned development of Arctic resources
1. The “Arctic Eight” refers to the littoral and non-littoral states with territory at or above the
Arctic Circle (66° 33’N): the United States, Russia, Canada, Iceland, Finland, Norway, Sweden,
and Denmark (Greenland). Under U.S. federal law, 15 U.S.C. § 4111 defines the “Arctic” as “all
United States and foreign territory north of the Arctic Circle and all United States territory north
and west of the boundary formed by the Porcupine, Yukon, and Kuskokwim Rivers; all contiguous
seas, including the Arctic Ocean and the Beaufort, Bering, and Chukchi Seas; and the Aleutian
chain.”
2. L.B. Pearson, Canada Looks Down North, 24 FOREIGN AFF. 638, 638 (1946). He colorfully
reflected that the Arctic is also “no country for weaklings.” Id. at 647.
3. James Astill, The Vanishing North, ECONOMIST (June 16, 2012), http://www.economist.com/
´
¨
printedition/2012-06-16; see also, NIELS
EINARSSON ET AL., LINKOPING
UNIVERSITY, ARCTIC HUMAN
DEVELOPMENT REPORT (2009) available at http://urn.kb.se/resolve?urn⫽urn:nbn:se:liu:diva32208. Note that an increasing amount of scholarship is also dedicated to various security interests
in the Arctic, including national and energy security. See, e.g., HEATHER CONLEY, CTR. FOR STRATEGIC
AND INT’L STUDIES, A NEW SECURITY ARCHITECTURE FOR THE ARCTIC: AN AMERICAN PERSPECTIVE
(2012); Peter F. Johnston, Arctic Energy Resources and Global Security, 12 J. MILITARY & STRATEGIC
STUD. 1 (2010).
4. A Thawing Arctic, COUNCIL ON FOREIGN REL., http://www.cfr.org/polar-regions/emergingarctic/p32620#!/?cid⫽otr_marketing_use-arctic_Infoguide#! (last accessed Oct. 28, 2014); see
also Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate
Change, IPCC, 2013: Summary for Policymakers, in CLIMATE CHANGE 2013: THE PHYSICAL SCIENCE BASIS
736
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
has also posed several social, economic, and governance challenges to
the indigenous peoples of the North.5 Within the context of this
evolving landscape, the emerging field of Arctic law is developing, with
international research centers dedicating significant resources to understand this area.6
At its most basic level, Arctic law involves the law of, in, or directly
affecting the Arctic, including the rights, duties, and responsibilities of
governmental and private actors. This field is multi-disciplinary in
scope, reflecting the myriad of social, economic, and geopolitical issues
affecting the Arctic today, which involve several legal disciplines including environmental, indigenous, regulatory, energy, and land use law.
Given that Arctic law contends with domestic, regional, and international law, comparative law complexities also exist—namely, needing to
understand that laws across legal traditions must consider the cultural
and social dynamics at play.7
As the field of Arctic law matures, a framework must exist to capture
its complexities and offer insights as to how best to untangle its many
components. This Article contends that Arctic law should be understood as the intersection of four pillars: hard law, soft law, domestic law,
and transboundary private law. Part II introduces the first Arctic law
9 (T.F. Stocker et al. eds., 2013) (noting that arctic sea ice decreased from 1979 to 2013 with very
likely ranges of 3.5% to 4.1% per decade and 9.4% to 13.6% per decade for summer sea ice
minimum (perennial sea ice) (emphasis in original)). In addition, the IPCC Report noted with
high confidence that the rate of sea level rise since the mid nineteenth century has been larger than
the mean rate during the prior 2,000 years—with the melting Greenlandic ice sheet contributing
to that increase. Id. at 11. For an interactive approach visually evidencing the melting ice sheet and
polar cap, see Climate Time Machine, GLOBAL CLIMATE CHANGE, http://climate.nasa.gov/interactives/
climate_time_machine (last visited November 10, 2014).
5. See generally, Cecile Pelaudeix, Inuit Governance & Contemporary Challenges: New Questions for
Arctic Governance, in YEARBOOK OF POLAR LAW 155-88 (Gudmundur Alfredsson & Timo Koivurova
eds., 2012); GAIL OSHERENKO & ORAN R. YOUNG, THE AGE OF THE ARCTIC 72-109 (1995).
6. Aarhus University recently launched an INTRAlaw Research Centre, which places Arctic
legal research as a key pillar. In addition, the university has a highly-specialized Arctic Research
Centre. See International and Transnational Tendencies in Law, AARHUS UNIV., http://law.au.dk/en/
research/forskergrupper/international-and-transnational-tendencies-in-law-intralaw/ (last visited Nov. 10, 2014). A Thematic Network on Arctic Law also exists, composed of over sixty legal
experts spanning several universities and institutions. See Thematic Network on Arctic Law, UNIV. OF
THE ARCTIC, http://www.arcticcentre.org/InEnglish/RESEARCH/The-Northern-Institute-forEnvironmental-and-Minority-Law/University-of-the-Arctic-Thematic-Network-on-Arctic-Law (last visited Nov. 12, 2014).
7. See generally, Rodolfo Sacco, One Hundred Years of Comparative Law, 75 TUL. L. REV. 1159,
1159-76 (2001); Kai Schadbach, The Benefits of Comparative Law: A Continental European View, 16
B.U. INT’L L. J. 331, 415 (1998); JOHN HENRY MERRYMAN, THE LONELINESS OF THE COMPARATIVE
LAWYER AND OTHER ESSAYS IN FOREIGN AND COMPARATIVE LAW 17, 27 (1999).
2015]
737
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
pillar, hard law.8 This Part defines and evaluates hard Arctic law,
introduces domestic legislative process nuances, and references the
import of customary law. Part III focuses on the evolution and utility of
the second Arctic law pillar, soft law. Part IV presents an overview of the
third pillar, domestic Arctic law. This Part, focusing on United States
domestic law (with special emphasis on tribal law), demonstrates that as
greater natural resource extraction is emphasized in the Arctic, an
intricate web of regulatory law must be adeptly traversed. Part V
suggests that the final pillar of Arctic law is transboundary private law.
This Part considers that increasing commercial development of the
Arctic9 will necessarily involve contracts across the Arctic states’ diverse
common and civil law legal systems. Attempts to straddle legal traditions with boilerplate commercial agreements will likely produce unanticipated results. The Article concludes that offering a “one-stop”
scholarly shop that assesses, clarifies, and understands the many dimensions of Arctic law will provide great value to multiple stakeholders.
II. THE FIRST PILLAR: THE EVOLVING ARCTIC HARD LAW OF UNCLOS,
CUSTOMARY LAW, AND DOMESTIC LEGISLATIVE PROCESSES
Hard law is recognized as legally binding obligations that are or can
be made to unambiguously define the conduct that they require or
8. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW § 102:
(1) A rule of international law is one that has been accepted as such by the international
community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems
of the world.
(2) Customary international law results from a general and consistent practice of states
followed by them from a sense of legal obligation.
(3) International agreements create law for the states parties thereto and may lead to
the creation of customary international law when such agreements are intended
for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or
reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.
9. The Arctic has trillions of dollars of estimated hydrocarbon and mineral resources,
although the enormous anticipated infrastructure costs have affected the commercial practicability of project developments. BANK OF AMERICA, THE OIL GUSHER NUMBER 102, ALASKA: GREAT
POTENTIAL, GREATER RISKS? (2012); UNITED STATES COAST GUARD, ARCTIC STRATEGY 5 (2013).
738
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
proscribe.10 Hard law provides states with benefits, including the
reduction of transaction costs from future repeat interactions, such as
negotiation, enforcement, and oversight mechanism costs, ex ante and
ex post. These benefits are weighed against the costs of restricting a
state’s behavior and sovereignty. Hard law is effectively “compulsory”
law and has often been expressed via treaties. As such, the 1969 Vienna
Convention on the Law of Treaties is often referenced,11 which, among
other things, ensures that the equality and sovereignty of all states are
protected—namely, providing that all states may participate in, execute, and ratify treaties.12
States are thus bound by what they consent to, either through
implied customary law or explicit treaty-based hard law. Despite the
obligatory nature of hard and customary law, enforceability issues still
exist. Countries generally comply with international treaty and customary law obligations. That said, compliance issues sometimes emerge,
particularly where international norms13 seemingly conflict with what
are perceived as crucial national interests.14
There are no treaties that exclusively contend with the Arctic. We do
see, however, treaties and conventions that contend with Arctic-related
issues. The primary example is the United Nations Convention on the
Law of the Sea (UNCLOS). The Convention guarantees a signatory
state’s vessels (both commercial and military) navigational rights and
freedoms throughout the world’s oceans.15 UNCLOS codifies member
10. Kenneth W. Abbot & Duncan Snidal, Hard and Soft Law in International Governance, 54
INT’L ORG. 421, 421 (2000).
11. Timothy Meyer, Soft Law as Delegation, 32 FORDHAM INT’L L.J. 888, 906-07 (2009).
12. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, reprinted in 8
I.L.M. 679 (entered into force Jan. 27, 1980).
13. Nina Tannenwald, The Nuclear Taboo: The United States and the Normative Basis of Nuclear
Non-Use, 53 INT’L ORG. 433, 433 (1999) (“Norms do not determine outcomes, they shape realms of
possibility. They influence (increase or decrease) the probability of occurrence of certain courses
of action.”).
14. “The US, like most countries, generally complies with its international treaty and
customary law obligations. But, as is the case with almost every other country, problems of
compliance occasionally arise, particularly in situations where international norms appear to
conflict with what are perceived as national security or other vital national interests.” Joint Comm.
Established by the Am. Soc’y of Int’l Law & the Am. Branch of the Int’l Law Ass’n, The Role of the
Legal Adviser of the Secretary of State, 85 AM. J. INT’L L. 358, 359 (1991), reprinted in COVETY T. OLIVER
ET AL, THE INTERNATIONAL LEGAL SYSTEM: CASES AND MATERIALS 26 (4th ed. 1995).
15. John B. Bellinger III, The United States and the Law of the Sea Convention, 1 BERKELEY J. INT’L
L. (PUBLICIST) 7, 15 (2008). The Convention also addresses the rights of aircraft in maritime areas.
Id.; see U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S.,
397, 404, 411 (entered into force Nov. 16, 1994) [hereinafter UNCLOS].
2015]
739
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
rights over all oceanic resources, including on and under the ocean
floor in a member state’s 200-nautical-mile Exclusive Economic Zone.16
UNCLOS also provides territorial sea limits, applicable rules related to
maritime scientific research in the Arctic, and marine environment
protection rights and responsibilities.17 The Convention covers various
interconnected Arctic issues, including fisheries management, pollution prevention, resource conservation, and international shipping
regulations.18 Additional hard law instruments include the Montreal
Protocol on Substances that the Deplete the Ozone Layer and the U.N.
Framework Convention on Climate Change, which also indirectly
protect the Arctic.19
Customary law, stemming from hard law, is the evolution of norms
developed by states that create a certain custom, eventually recognized
as being legally required.20 States thus consistently recognize and practice21 legal obligations comprised of clear rules that states abide by
universally or have acceded to, “out of a sense of such obligation or
16. UNCLOS, supra note 15, arts. 2, 33, 57. UNCLOS allows states to extend their EEZ
outside 200 nautical miles to 350 miles, “so long as that shelf formation is a natural prolongation
of the state’s continental shelf” and “it may never exceed 100 nautical miles beyond the 2,500
meter isobaths (the line connecting the depth of 2,500 meters).” Christopher Joyner, The Legal
Regime for the Arctic Ocean, 18 J. TRANSN’TL L. & POL’Y 195, 203 (2009).
17. See UNCLOS, supra note 15, arts. 3, 238, 56.
18. See UNCLOS, supra note 15, arts. 63, 211, 115-119, 58; Joyner, supra note 16, at 200.
19. Note that there are several regional and international conventions, suggested as having
the force of hard law, which contend with activities that may overlap with those (that presently or
shall be) conducted in the Arctic. These include the 1992 Convention for the Protection of the
Marine Environment of the North-East Atlantic or “OSPAR” (contending with marine pollution
prevention and elimination) and the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context (concerning environmental impact statement requirements in
certain energy-related activities).
20. Timo Koivurova et al., Participation of Indigenous Peoples in International Norm-Making, 46
POLAR RECORD 101 (2006); see also Statute of the International Court of Justice art. 5(1)(c), Oct. 24,
1945, 33 U.N.T.S 993 (“The Court . . . shall apply . . . international custom, as evidence of a
general practice accepted as law”). Ian Brownlie asserts that the elements of custom within the ICJ,
which provides a guide to generally analyzing custom, include: (i) duration (although if the
“consistency and generality” of a custom are proved, no exact duration is required); (ii)
“substantial” uniformity, and (iii) a sense of legal obligation rather than usage, which does not
reflect such obligation—such as ceremonial salutes at sea or exempting diplomatic automobiles
from parking restrictions. COVEY T. OLIVER ET AL., THE INTERNATIONAL LEGAL SYSTEM: CASES AND
MATERIALS 4 (4th ed. 1995).
21. William V. Dunlop, Transit Passage in the Russian Arctic Straits, 1 MARITIME BRIEFING 11
(1996), cited in Molly Watson, An Arctic Treaty: A Solution to the International Dispute over the Polar
Region, 14 OCEAN & COASTAL L. J. 307, 319 (2009).
740
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
mutual concern.”22 For example, the United States has not ratified
UNCLOS, yet it recognizes the treaty as having the force of customary
law.
There also has been a trend to characterize certain international
agreements as hard law, including those without binding dispute
settlement mechanisms or mandated fora where states may register
complaints. Enter the Arctic Council, the high-level intergovernmental
forum of the eight Arctic states, which contends with Arctic-specific
issues, most specifically sustainable development and the environmental protection of the Arctic.23 The Arctic states have universally hailed
two Council agreements as legally-binding instruments. The first is the
2011 Agreement on Cooperation on Aeronautical and Maritime Search
and Rescue in the Arctic (SAR Agreement).24 The Agreement specifies
obligations over a broad swath of territory:25 evidencing such obligations, the SAR Agreement uses the word “shall” approximately fifty
times in the text. The Agreement requires Arctic states to provide
rescue assistance to individuals, regardless of nationality or circumstance, with each Arctic state conducting searches within a designated
geographical area of responsibility and establishing Rescue Coordination Centers.26 In addition to conducting search and rescue operations, the Arctic states are also required to collaborate on preparatory
activities and share information on capabilities and data.27
The Arctic Council’s 2013 Agreement on Cooperation on Marine Oil
Pollution Preparedness and Response in the Arctic also carves out
numerous state obligations.28 Article 20 provides that “the character of
the Agreement’s Appendices do not constitute an integral part of this
22. 48 Corpus Juris Secundum International Law § 2 (2008) cited in Watson, supra note 21, at
319.
23. See Declaration on the Establishment of the Arctic Council, Sept. 19, 1996, 35 I.L.M. 1387
[hereinafter Ottawa Declaration]; Timo Koivurova, Limits and Possibilities of the Arctic Council in a
Rapidly Changing Scene of Arctic Governance, 42 POLAR RECORD 101 (2006). Note that the Ottawa
Declaration built upon the Arctic Environmental Protection Strategy of 1991. See Arctic Environmental Protection Strategy, ARCTIC COUNCIL, http://www.arctic-council.org/index.php/en/documentarchive/category/556-arctic-environmental-protection-strategy (last visited Jan. 30, 2015).
24. Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the
Arctic, May 12, 2011, 50 I.L.M. 1119. [hereinafter SAR Agreement].
25. Id. The SAR Agreement’s maritime and aeronautical coverage and response concerns an
area of about 13 million square miles in the Arctic.
26. Id. arts. 3, 5, and 6.
27. Id. art. 9.
28. See Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in
the Arctic, May 15, 2013, available at http://www.arctic-council.org/index.php/en/documentarchive/category/425-main-documents-from-kiruna-ministerial-meeting (last visited Jan. 30, 2015).
2015]
741
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
Agreement and are not legally binding.”29 By such exclusion, we see
that the signatory states otherwise intend the Agreement to indeed be
legally binding. Regarding enforcement, this agreement states that “a
party that fails to live up to their obligations can be held liable under
international law.”30
With respect to enforcement, we see the “blurred” aspect of hard law:
the Arctic states are bound to “legally enforceable” commitments, yet
the agreements that create these commitments do not contain any
binding dispute settlement mechanisms. The Arctic states each have
input as to what interpretations mean, but there are no forums to file or
hash out a complaint of non-compliance.
The roll-out to a treaty or something comparable may be a highly
technical and complex process—and each Arctic state must comply
with its own domestic legislative requirements, aside from the intense
negotiations required between and among states. In the United States,
the term “treaty” has a different domestic legal interpretation than
under international law. Treaties require advice and consent by twothirds of the United States Senate.31 Alternatively, executive agreements may be signed by the President without congressional consent.32
Many international engagements requiring appropriations or criminal
prosecutions constitutionally mandate U.S. congressional action.33 The
President often chooses to undertake the treaty process over executive
agreements to gain legislative support on issues eventually requiring
Congress to pass implementing legislation or to appropriate funds.34
Otherwise, the executive branch could sign an agreement which cannot be enforced, should Congress fail to pass requisite legislation. From
Obligations include each Arctic state establishing national systems for oil response, as stated in
Article 4, and undertake oil spill monitoring activities, as stated in Article 8.
29. Id. art. 20.
30. Id. art. 16.
31. U.S. CONST. art. II; see also Quincy Wright, The United States and International Agreements, 38
AM. J. INT’L L. 341, 343 (1944).
32. David Sloss, International Agreements and the Political Safeguards of Federalism, 55 STAN. L.
REV. 1963, 1964-65 (2003); see also CONG. RESEARCH SERV., TREATIES AND OTHER INTERNATIONAL
AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, S. Prt. 106-71, 5 (2001), available at
http://www.gpo.gov/fdsys/pkg/CPRT-106SPRT66922/html/CPRT-106SPRT66922.htm.
33. See CONG. RESEARCH SERV., supra note 32, at 5; Louis Klarevas, The Surrender of Alleged War
Criminals to International Tribunals: Examining the Constitutionality of Extradition Via CongressionalExecutive Agreement, 8 UCLA J. INT’L L. & FOR. AFF. 77, 96 (2003); Charles Bennett et al., Foreign
Affairs and the Constitution: The Roles of Congress, the President, and the Courts: The President’s Powers as
Commander-in-Chief Versus Congress’ War Power and Appropriations Power, 43 U. MIAMI L. REV. 17, 24
(1988).
34. See CONG. RESEARCH SERV., supra note 32, at 5.
742
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
the birth of the United States through the mid-twentieth century, less
than two-fifths of international agreements committed by the United
States were made through the treaty-making process.35 The annexation
of Texas and the settlement of post-World-War-I debts were, for example, made without a treaty.36 Under international law, treaties and
executive agreements are recognized as having the same force. That
said, “both have been held to supersede State law, and both can be
terminated as far as domestic law is concerned by act of Congress.”37
III. THE SECOND PILLAR: SOFT LAW AND ITS RISING IMPORT IN THE ARCTIC
Soft law has been defined as the institutionalization of international
norms.38 Half jokingly, soft law is identified as a “troublemaker,”
because “it is either not yet, or not only, law.”39 International norms are
understood to be non-legally-binding: goals rather than duties, guidelines rather than obligations.40 Words and phrases in soft law instruments include “should” rather than “shall”—language that does not
create an exact burden or obligation between states.
Despite its lack of legal obligations, there are cohesive effects emanating from soft law, with states “bound” in a political or moral context.41
The impact of soft law grew under circumstance. Soft law arose to
permit economic and political cooperation and negotiations.42 Soft law
developed through twentieth-century institutions and represented a
means by which many newly independent states could shape principles
of international relations.43 This role of shaping international relations
through resolutions or recommendations was once the exclusive jurisdiction of long-existing “great powers.”44 Yet as legal disciplines such as
environmental and information technology law developed in response
to bold new scientific advances, the international community required
flexible legal instruments to keep pace with a changing world.45 The
35. Wright, supra note 31, at 343.
36. See id. at 343.
37. See id. at 346 (citing Chinese Exclusion Cases, 130 U.S. 581 (1889)).
38. Koivurova, supra note 20, at 101.
39. Pierre-Marie Dupuy, Soft Law and the International Law of the Environment, 12 MICH. J. INT’L
L. 420 (1991).
40. See id. at 428.
41. Koivurova, supra note 20, at 101.
42. Dupuy, supra note 39, at 421.
43. See id. at 421.
44. Id. at 420-21.
45. See id. at 421.
2015]
743
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
process of adopting soft law, resulting in (or from) the emergence of
international norms, occurs over time through repetition of similar
rules, which creates a common understanding. The 1972 Stockholm
Declaration is a global example of a non-binding resolution that has
influenced how states behave, including their membership in international bodies, such as the U.N. Environment Program.46 Thus, soft law
is less costly than treaty-based hard law and opens up avenues for
compromise, precluding the need to force potentially conflicting
national circumstances into a single text.47 Soft law is also innovative,
adapting to changing circumstances at a speed much faster than the
perceived glacial rigidity of hard law development.
The 1996 Ottawa Declaration, establishing the Arctic Council,48 is a
prime example of soft law.49 The Declaration calls for promoting
cooperation, coordination, and interaction among the Arctic states on
common Arctic issues, in particular sustainable development and
environmental protection.50 This document set the stage for subsequent Arctic interaction. The consensus-based Arctic Council is soft law
in action, including Arctic member states and permanent participants
representing Arctic indigenous peoples and other Council observers.
The various Arctic Council Working Groups include the Protection of
the Marine Environment (PAME) Working Group, which addresses
policy and non-emergency pollution prevention and control measures
related to Arctic maritime environmental protection; the Arctic Monitoring and Assessment Programme (AMAP), which focuses on providing Arctic environmental information and scientific advice to Arctic
governments; and the Emergency Prevention, Preparedness and Response (EPPR) Working Group, which contends with Arctic environmental emergencies.51 In addition, the Council has a network of task
forces, such as those on Arctic Marine Oil Pollution Prevention and the
46. Report of the United Nations Conference on the Human Environment, princ. 21, U.N.
Doc. A/CONF.48/14/Rev.1 (Jan. 1, 1973) [hereinafter Stockholm Declaration]. Principle 21 of
the Stockholm Declaration provides that: “States have, in accordance with the Charter of the
United Nations and the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental policies, and responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.”
47. Abbot & Snidel, supra note 10, at 446.
48. For a discussion of the Council’s structure, mandates and activities, see the ARCTIC
COUNCIL PERMANENT SECRETARIAT, www.arctic-council.org (last visited Oct. 30, 2014).
49. See Ottawa Declaration, supra note 23.
50. See Stockholm Declaration, supra note 46, art. 1.
51. See id.
744
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
Arctic Council Scientific Cooperation Task Force. Moreover, the Council has generated important guidelines, including the 2009 Arctic
Offshore Oil and Gas Guidelines and The Arctic Marine shipping
Assessment of 2009.52 These various working groups, task forces, reports, and other outcome documents focus on the twin goals of the
Council, which are sustainable development and environmental protection. These themes permeate subsequent soft law declarations, agreements, institutions, and organizations. Non-binding rules that constitute
soft law include the International Maritime Organization’s Polar Code,53
which provides voluntary shipping guidelines and regulations for ships
crossing polar waters.
One of the greatest benefits of soft law is that non-state actors are
afforded an ability to participate in the decision-making process traditionally reserved only for states. Soft law thus brings more hands to the
table, such as non-governmental organizations, transnational groups,
and substate actors. Consider the six permanent participants in the
Arctic Council, a mechanism that ensures a seat at the table for Arctic
indigenous peoples.54 Soft law allows parties to come together and
tackle contentious issues. As such, soft law may be a “way point,” easier
to achieve than hard law, while facilitating compromise and mutually
beneficial cooperation and ensuring states an opportunity to credibly
commit themselves to future behavior.
IV. THE THIRD PILLAR: DOMESTIC ARCTIC LAW
Each Arctic state’s domestic law must be considered when reviewing
the reach and breadth of Arctic law. Domestic law trends offer deeper
insights into how law converges with and is shaped by social, economic,
and political factors. Domestic law evidences the legal issues most
relevant for each Arctic state and provides a guidepost for diverse
investors, affected citizens, and various constituencies. Further, domestic law analysis provides unique insights into an Arctic state’s legislative
framework, demonstrating how a legal system functions internally,
such as the interaction between U.S. local, state, and federal legal
52. PROT. OF THE MARINE ENV’T WORKING GROUP, ARCTIC OFFSHORE OIL AND GAS GUIDELINES
(2009), available at http://library.arcticportal.org/1551.
53. See INT’L MAR. ORG., http://www.imo.org/MediaCentre/HotTopics/polar/Pages/default.
aspx (last visited Nov. 9, 2014).
54. The Permanent Participants consist of the Aleut International Association, the Arctic
Athabaskan Council, the Gwich’in Council International, the Inuit Circumpolar Council (ICC),
the Russian Association of Indigenous Peoples of the North (RAIPON), and the Saami Council.
ARCTIC COUNCIL PERMANENT SECRETARIAT, www.arctic-council.org (last visited Oct. 30, 2014).
2015]
745
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
regimes. A review of emerging U.S. Arctic law identifies relevant Arctic
law trends and provides observers from Arctic states with insights into
how the U.S Arctic law framework is emerging, which can be particularly useful when understanding and evaluating their own legal systems.
Arctic law in the United States necessarily involves a focus on Alaska,
the state that makes the United States an Arctic country. Alaska is
one-fifth the size of the entire United States, representing over sixty
percent of the state land under federal government control.55 Approximately 53,000 people out of Alaska’s total population of over 736,00056
live in its Arctic region. Hydrocarbon extraction, fishing, mining,
tourism, and logging are Alaska’s major industries, with thirty-five
percent of Alaska’s jobs tied to the energy sector.57 Oil production
currently accounts for ninety percent of the state’s unrestricted general
fund revenues.58
Within the Alaskan legal context, tribal law plays a pivotal role,
particularly with respect to natural resource extraction issues. Tribal
law involves multiple legal disciplines, including environmental, energy, and regulatory law. Native tribes in the United States are afforded
certain sovereign powers, including the authority to establish their own
form of government and tribal justice systems and to determine who
may be considered members.59 In effect, Native American jurisdictions
are nations, “separate but dependent” on the United States.60 Justice
Marshall, in the 1831 Supreme Court case Cherokee Nation v. Georgia,
outlined this relationship, holding that the tribes are dependent on the
United States in a relationship akin to “that of a ward to his guardian.”61 Of the more than 550 federally recognized tribes, approximately
55. ALASKA DEPT. OF NATURAL RES., LAND OWNERSHIP IN ALASKA, http://dnr.alaska.gov/mlw/
factsht/land_own.pdf (last visited Nov. 5, 2014).
56. Current Population Estimates, DEP’T OF LABOR AND WORKFORCE DEV., http://laborstats.alaska.
gov/pop/popest.htm (last visited Nov. 5, 2014).
57. U.S. COAST GUARD, ARCTIC STRATEGY 9 (2013).
58. See Alaska Budget Q&A: What is the General Fund?, UNDERSTANDING ALASKA’S BUDGET,
http://www.alaskabudget.com/qa/revenue-qa/what-is-the-general-fund (last visited Nov. 5, 2014).
59. See Elizabeth Barrett Ristroph, Alaska Tribes’ Melting Subsistence Rights, 1 ARIZ. J. ENVTL. L.
& POL’Y 47 (2010) (citing 25 U.S.C. § 476(h)(1) (2012)); Delaware Indians v. Cherokee Nation,
193 U.S. 127, 132 (1904).
60. Taylor Reinhard, Advancing Tribal Law through “Treatment as a State” Under the Obama
Administration: American Indians may also Find Help from their Legal Relative, Louisana—No Blood
Quantum Necessary, 23 TUL. ENVTL. L.J. 537, 538 (2010).
61. 30 U.S. 1, 2 (1831). Justice Marshall held that:
[t]he Indians are acknowledged to have an unquestionable, and heretofore, an unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary
746
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
400 maintain written constitutions, with tribal codes including formal
processes for land assignment.62 Federal law has effectively transferred
much of tribal jurisdiction to Alaska’s state government, “with exemptions for certain acts (including fishing, hunting, and trapping) protected by treaty, agreement, or statute.”63 The only “Indian country”
over which Alaskan tribes hold jurisdiction consists of those limited
land areas held in trust by the federal government.64
Alaska is a special case when studying tribal law, particularly involving
proprietary rights. The Alaska Native Claims Act of 1971 (ANSCA)
eliminated aboriginal title and claims on land and water.65 During this
time, the massive Trans-Alaska Pipeline was being contemplated, and
certainty of real property ownership was needed.66 Under ANSCA,
Alaskan natives received over forty million acres of land and nearly one
billion dollars—money that was fully distributed by 1982.67 ANSCA
created twelve for-profit regional corporations and 200 village native
for-profit corporations, with a thirteenth regional corporation subsequently created for Alaska natives who no longer resided in Alaska.
Alaska natives thus became regional corporation shareholders. Note
cession to our government. It may well be doubted whether those tribes which reside
within the acknowledged boundaries of the United States can with strict accuracy be
denominated foreign nations. They may, more correctly perhaps be denominated
domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of
possession ceases—meanwhile, they are in a state of pupilage. Their relations to the
United States resembles that of a ward to his guardian. They look to our government for
protection; rely upon its kindness and its power; appeal to it for relief to their wants; and
address the President as their great father.
Id.
62. See John C. Hoelle, Re-evaluating Tribal Customs of Land Use Rights, 82 U. COLO. L. REV. 551,
560-62 (2011).
63. Ristroph, supra note 59, at 33. An author vigorously argues that American natives
maintained and understood land ownership prior to colonist “contact.” See Hoelle, supra note 62
at 552-53 (proposing that pre-European contact, a land use system akin to “usufruct” existed,
where individuals/families could utilize an available land area for certain beneficial purposes (i.e.
hunting, farming or fishing) which translated into a customary right protecting the party(ies)
right to exploit or occupy the land which could disappear if the use was not continuous or
recognized by custom).
64. Ristroph, supra note 59, at 33.
65. 43 U.S.C. § 1601 (2012).
66. George J. Busenberg, Learning in Organizations and Public Policy, 21 J. PUB. POL’Y 173-89
(2001) (discussing the Pipeline as a case study).
67. Britt Lindsay, Tribal Land Quarrels in Alaska: Leisnoi v. Stratman, 20 PUB. LAND & RESOURCES
L. REV. 169, 171 (1999).
2015]
747
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
that in areas where village corporations controlled the surface estate,
the subsurface estate would be controlled by the regional corporations.68 Additionally, under the 1980 Alaska National Interest Lands
Conservation Act (ANILCA),69 a series of factors (not including native
status) are considered in setting non-wasteful subsistence uses for the
taking of fish and wildlife in federal public lands.70 Given this Act,71
Alaska natives do not have treaties with the federal government concerning explicit subsistence rights.72
Within this complex framework, proprietary issues are at the forefront. One notable example, Leisnoi, Inc. v. Stratman, has all the
qualities of a Hollywood blockbuster.73 This case involves a simmering
feud between a tenacious landowner and a corporation in a tale of
thirty years of court fights, contending with core legal precepts of who
owns what and how much control the federal government may exert.74
Following ANSCA’s enactment, the village corporation of Leisnoi was
permitted to select over 115,000 acres of land to manage, but a regional
corporation, Koniaq, would remain in control of the subsurface. Stratman was a cattle rancher and tourist operator, self-styled as “stubborn”
and characterized as an “ornery” gentleman.75 His 45,000 acres of
grazing leases granted by the federal government were transferred to
the state of Alaska and then transferred to the Leisnoi village corpora-
68. See id. at 171.
69. 1980 Alaska National Interest Lands Conservation Act, Pub. L. No. 96-487 (codified in
sections of 16 U.S.C., 43 U.S.C.). ANILCA affected over 100 million acres of federal lands in
Alaska, doubling the size of the country’s national park and refuge systems and tripling the
amount of land designated as wilderness.
70. Ristroph, supra note 59, at 33. For an interesting discussion of tribal cultural viewpoints
concerning proprietary rights, see Stephen D. Osborne, Protecting Tribal Stories: The Perils of
Propertization, 28 AM. INDIAN L. REV. 203 (2004).
71. A court action demonstrating the tension between Alaska and the federal government is
discussed in Richard Mauer, State Suing over the Arctic National Wildlife Reserve (ANWR), but is it
Trying to Prove What’s already been Proven? ALASKA DISPATCH NEWS (Mar. 25, 2014), http://www.adn.
com/article/20140325/state-suing-over-anwr-it-trying-prove-whats-already-been-proven. In March
2014, Governor Parnell sued the Department of the Interior for Alaska’s right to run its own $50
million oil-scouting program over ANWR’s 1.5-million-acre coastal plain. The Interior Department holds that such exploration would be illegal and had refused to grant Alaska a permit when
it applied in 2013. The Interior Department concluded its own exploration of the plain in the
1980s, and has maintained a position that any additional work could only be authorized by an act
of Congress. The Obama Administration (and Republican and Democratic administrations since
the Eisenhower era) have consistently opposed drilling the refuge and its predecessor-in-interest.
72. Ristroph, supra note 59, at 33.
73. See Lindsay, supra note 67.
74. Leisnoi, Inc. v. Stratman, 154 F.3d 1062 (9th Cir. 1998).
75. Lindsay, supra note 67.
748
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
tion. Stratman filed suit in 1976 to prevent certain ANCSA land
transfers, a case which was first dismissed but then reinstated.
Another federal law further complicated the issues. Under ANILCA,
Koniaq was to receive specified lands awarded to Leisnoi. Koniaq, the
regional corporation, and Stratman forged an agreement in 1982,
whereby Stratman set aside his court action in return for certain land
transfers. But as Leisnoi eventually separated from Koniaq, the settlement was unenforceable against Leisnoi. In 1994, the original Stratman
action was reinstated by a federal court because of the failure of the
Koniaq-Stratman agreement. Stratman argued that Leisnoi was essentially fictitious. In 1995, half of Leisnoi’s shareholders lived outside of
Alaska, with the Leisnoi village corporation at points being threatened
with public investigation, as one million dollars had been spent by the
mid-1990s, including for costs associated with internal disputes.76 In
1998, the Ninth Circuit ruled against Leisnoi, holding that the contested leasehold area was not within Leisnoi’s control, defining Leisnoi
boundaries by occupancy and examining the village’s original land
application to the U.S. Interior Secretary.77 The court did not follow
Leisnoi’s argument that its territory should have been increased based
on long-standing hunting and fishing areas.78 The court stated that its
“conclusion might lead to perceived unfairness in a few rare situations,
such as this one, but perfection is not to be expected from a statutory
scheme such as ANSCA, which attempts to handle land claims in over
200 villages across the largest state in our Union.”79
Following a petition from Leisnoi, the Office of the Department of
the Interior (DOI) Solicitor issued a 2006 memorandum reviewing a
2002 decision of the Department of the Interior Board of Land Appeals
(IBLA) that supported Stratman.80 The DOI Solicitor concluded that
section 1427 of ANILCA ratified the eligibility determination of the
Secretary and thus mooted Stratman’s challenge to Leisnoi’s certification. The Solicitor first observed that section 1427 was clear in treating
Leisnoi as an eligible village and resolved any statutory ambiguity in
favor of Leisnoi, given Congress’s goal to resolve Koniaq’s land entitlements as soon as practicable. The Interior Secretary adopted the
Solicitor’s memorandum and effectively overturned the IBLA’s decision.
76.
77.
78.
79.
80.
2015]
See id. at 175.
Leisnoi, 154 F.3d at 1071-72.
Id. at 1069.
Id. at 1070.
Stratman v. Leisnoi, 545 F.3d 1161, 1170 (9th Cir. 2008).
749
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
Thus, the tables turned, as the Interior Secretary and, subsequently,
several courts held that Congress designated Leisnoi an eligible village
without requiring that it satisfy the requirements for eligibility set out
in ANCSA. Courts found that whether Congress conveyed land to
Leisnoi under the allegedly mistaken assumption that Leisnoi was an
eligible village was irrelevant. In 2008, the United States Court of
Appeals for the Ninth Circuit held that “[w]hile it is essential . . . [that]
government agencies . . . comply with the law . . . [w]hether Congress
was acting under a misapprehension of fact or law is irrelevant once
legislation has been enacted.”81 As long as the pertinent legislation is
valid, the court found that it is not the duty of the courts to revise such
legislation.82 In effect, “[a]bsent a constitutional impediment to the
exercise of its authority, the intent of Congress to designate Leisnoi as
an eligible village corporation and convey land to it as such must be
given effect.”83 In 2009, Stratman tried filing with the U.S. Supreme
Court, and certiorari was denied. One year later, Leisnoi’s quiet title
action was affirmed by the Alaska Supreme Court, which settled claims
of outstanding legal fees.84 This case evidences the intricate regulatory
scheme involving tribal and federal lands, real property law, and
multijurisdictional issues that inform U.S. Arctic law.
In the complex relationship involving tribal law, we see certain
affirmative federal obligations towards Native Alaskans. Federal land
agencies are mandated to ensure the protection of Native American
religious and cultural values, and federal actions are subject to trust
responsibilities akin to the guardianship relationship outlined by Justice Marshall.85 In general terms, the trust responsibility requires an
agency to consider the interest of tribes in planning and decision-
81. Id. at 1172.
82. Id. at 1170; see also United States v. Alaska, 521 U.S. 1 (1997) (holding that where the
United States and Alaska disputed ownership over certain submerged lands along the Arctic
Coast, even if the President did not have authority under the Pickett Act to select submerged lands
for the federal government, congressional ratification of the executive order was valid “whether or
not it had intended the President’s reservation authority under the Pickett Act to extend to such
lands.”).
83. Id. at 1170-71.
84. Leisnoi, Inc. v. Stratman, 2010 Alas. LEXIS 100 (2010) (regarding attorney’s fees).
85. Roger Flynn & Jeffrey C. Parsons, The Right to Say No: Federal Authority over Hardrock Mining
on Public Lands, 16 J. ENVTL. L. & LITIG. 249, 271-72 (2001); see also Seminole Nation v. United
States, 316 U.S. 286, 296-97 (1942); Pyramid Lake Paiute Tribe of Indians v. United States Dep’t of
the Navy, 898 F.2d 1410, 1420 (9th Cir. 1990).
750
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
making processes.86 To accomplish this, several specific directives to
assist the agencies in meeting trust responsibilities to tribes have been
established.87
For instance, an agency must meet certain standards in approving a
mining operation, overriding any “purely economic consideration” of a
mining applicant.88 Note that in a case involving the Forest Service’s
approval of an open-pit gold mine, “in the absence of a specific duty,
this [trust] responsibility is charged by the agency’s compliance with
general regulations and statues not specifically aimed at protecting
Indian tribes.”89 Cultural and religious sensitivity toward Indian tribes
has been recognized under the Department of the Interior, as dictated
by executive orders. For example, President Clinton’s Executive Order
13007 of May 24, 1996, required all federal agencies to accommodate
access to and use of sacred sites by Native American religious practitioners and to avoid adversely affecting such sites’ physical integrity unless
“clearly inconsistent with essential Agency functions.”90 President
Clinton also issued an Executive Order requiring that all federal
agencies consult tribal governments, to the greatest extent practicable
and legally permitted, prior to taking actions that affect federallyrecognized tribal governments.91 Most recently, President Obama established a White House Council on Native American Affairs, chaired by
the Department of the Interior, to “promote the development of
86. See ENVTL. PROT. AGENCY, OUTREACH: 2012 SUSTAINABLE ENERGY OPPORTUNITIES: BEST
PRACTICES FOR ALASKA TRIBES (2012), available at http://www.epa.gov/region10/pdf/tribal/
Sustainable_Energy_Opportunities_Resource_Guide.pdf. The EPA’s Tribal Trust and Assistance
Unit is identified as a planning/coordination resource for Alaskan tribes interested in designing a
community energy plan. Id. at 4. Weatherization, biomass and waste-to-energy, wind, solar,
geothermal, and hydrokinetic projects are all discussed. Id.
87. See ENVTL. PROT. AGENCY, EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL PROGRAMS ON INDIAN RESERVATIONS (1984); ENVTL. PROT. AGENCY, ACTIONS FOR STRENGTHENING TRIBAL
OPERATIONS (1994); THE WHITE HOUSE, GOVERNMENT-TO-GOVERNMENT RELATIONS WITH NATIVE
AMERICAN TRIBAL GOVERNMENTS (1994); Consultation and Coordination With Indian Tribal
Government, 63 Fed. Reg. 27655-27657 (May 19, 1998).
88. See Flynn & Parsons, supra note 85, at 273; see also Walter E. Stern, Cultural Resources
Management in the United States: Tribal Rights, Roles, Consultation and Other Interests (A Developer’s
Perspective), 59 ROCKY MT. MIN. L. INST. 20A-1 (2013).
89. Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 479 (9th Cir. 2000), cited in
Flynn & Parsons, supra note 85, at 273.
90. Indian Sacred Sites, 61 Fed. Reg. 26,772 (May 24,1996); see also Okanogan Highlands
Alliance, 236 F.3d at 479 (citing Indian Sacred Sites Regulation); Flynn & Parsons, supra note 85, at
275 (citing the same).
91. Counsultation and Coordination with Indian Tribal Governments, 65 Fed Reg. 67249-52
(Nov. 9, 2000).
2015]
751
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
prosperous and resilient tribal communities, including by [fostering]
sustainable economic development, particularly energy.”92
With respect to administrative requirements, federal agencies must
establish regular and meaningful consultation and collaboration with
native tribal governments.93 As evidenced by the Environmental Protection Agency’s (EPA) regulations, “[c]onsultation” is defined as “a
process of meaningful communication and coordination between
EPA and tribal officials prior to EPA taking actions or implementing
decisions that may affect tribes.”94 It involves program and regional
procedures and plans and a “continuing dialogue” between the EPA
and tribal governments. Moreover, on issues relating to tribal selfgovernment, trust resources, or treaty and other rights, Executive
Order 13084 of May 14, 1998 mandates each agency’s office to explore
the use of consensus-based decision-making mechanisms for developing regulations, including negotiated rule-making.95 In the EPA Region 10 Tribal Consultation and Coordination Procedures, dated
October 5, 2012,96 each EPA office “must interact with tribes on a
government-to-government basis consistent with the inherent sovereignty of each tribe.”97
92. Establishing the White House Council on Native American Affairs, 78 Fed. Reg. 39539-42
(June 6, 2013). For example, the U.S. Census Bureau in 2014 noted 28.4 percent of Alaska Natives
and American Indians lived in poverty in 2010, close to double the national averages of 15.9
percent. Paulina Penida and Julianne DeFilippis, After Six Years, Obama Administration gets Good
Marks on Tribal Issues, CRONKITE NEWS (Aug. 12, 2014), http://cronkitenewsonline.com/2014/08/
after-six-years-obama-administration-gets-good-marks-on-tribal-issues.
93. See, e.g., 78 Fed. Reg. 39539-42 (June 26, 2013); 65 Fed. Reg. 67249-52 (Nov. 9, 2000).
94. ENVTL. PROT. AGENCY, EPA POLICY ON CONSULTATION AND COORDINATION WITH INDIAN
TRIBES (2011), available at http://www.epa.gov/tp/pdf/cons-and-coord-with-indian-tribes-policy.
pdf (last visited Nov. 5, 2014).
95. Consultation and Coordination with Indian Tribal Governments, 63 Fed. Reg. 2765527657 (May 19, 1998).
96. The EPA Policy on Consultation and Coordination with Indian Tribes established
national guidelines and institutional controls for tribal consultation across the EPA. ENVTL. PROT.
AGENCY, EPA POLICY ON CONSULTATION AND COORDINATION WITH INDIAN TRIBES (2011), available at
http://www.epa.gov/tp/pdf/cons-and-coord-with-indian-tribes-policy.pdf (last visited Nov. 5, 2014).
97. ENVTL. PROT. AGENCY, EPA REGION 10 TRIBAL CONSULTATION AND COORDINATION PROCEDURES (2012), available at http://nepis.epa.gov/Exe/ZyNET.exe/P100FFEY.TXT?ZyActionD⫽Zy
Document&Client⫽EPA&Index⫽2011⫹Thru⫹2015&Docs⫽&Query⫽&Time⫽&EndTime⫽&S
earchMethod⫽1&TocRestrict⫽n&Toc⫽&TocEntry⫽&QField⫽&QFieldYear⫽&QFieldMonth⫽
&QFieldDay⫽&IntQFieldOp⫽0&ExtQFieldOp⫽0&XmlQuery⫽&File⫽D%3A%5Czyfiles%5CI
ndex%20Data%5C11thru15%5CTxt%5C00000006%5CP100FFEY.txt&User⫽ANONYMOUS&P
assword⫽anonymous&SortMethod⫽h%7C-&MaximumDocuments⫽1&FuzzyDegree⫽0&Image
Quality⫽r75g8/r75g8/x150y150g16/i425&Display⫽p%7Cf&DefSeekPage⫽x&SearchBack⫽ZyA
ctionL&Back⫽ZyActionS&BackDesc⫽Results%20page&MaximumPages⫽1&ZyEntry⫽1&SeekP
752
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
Energy issues play an integral, cross-cutting role in domestic Arctic
law, including energy security. Estimated hydrocarbon reserves are
staggering in scope. For example, a 2010 U.S. Geological Survey report
estimated 896 million barrels of undiscovered oil and 53 trillion cubic
feet of undiscovered gas within the federally-owned National Petroleum Reserve-Alaska and adjacent state waters.98 In addition, 2010
estimates reveal that Alaska possesses significant minerals, including
seventeen percent of global coal, six percent of the world’s copper and
three percent of global gold.99 Industry experts note that the U.S.
Department of Defense uses more than 750,000 tons of minerals
annually.100 Accordingly, there have been increasing calls from diverse
actors for the U.S. government to contemplate stockpiling a “national
strategic reserve” of rare earth elements.101 Multiple federal laws also
demand the involvement of numerous agencies. Contending with
mining issues in the United States requires negotiating a complex legal
age⫽x&ZyPURL (last visited Mar. 18, 2015). Alaska is in EPA Region 10. The procedures provide
guidance (noting the principles of the government-to-government relationship), including
considering each tribal government as a distinct entity exercising sovereign powers (ensuring
communications are directed to tribal leaders and staff) and coordinating/cooperating between
tribal, state, and local governments to resolve environmental issues of mutual concern. The EPA
also outlines several implementation procedures, including the participation of EPA managers in
annual tribal leaders conference and tribal leadership forums, cataloguing programs, providing
financial assistance, and, where the EPA and a tribe agree that an “EPA-approved tribal program is
appropriate, conduct the legal, technical, and policy work needed by a tribe to develop tribal
applications.” See ENVTL. PROT. AGENCY, SUSTAINABLE ENERGY OPPORTUNITIES: BEST PRACTICES FOR
ALASKA TRIBES (2012), http://www.epa.gov/region10/pdf/tribal/Sustainable_Energy_
Opportunities_Resource_Guide.pdf (last visited Nov. 8, 2014).
98. USGS Oil and Gas Resource Estimates Updated for the National Petroleum Reserve in Alaska,
UNITED STATES GEOLOGICAL SURVEY (Oct. 26, 2010), http://www.usgs.gov/newsroom/article.asp?
ID⫽2622#.VMzmP7Ao7IU.
99. National Strategic and Critical Minerals Policy Act and Resource Assessment of Rare Earths Act of
2011: Hearing on H.R. 2011 and H.R. 1314 Before the Subcomm. on Energy and Mineral Res. of the H.
Comm. on Natural Res., 112th Cong. (2011) (statement of Dan Sullivan, Comm’r, Alaska Dep’t of
Natural Res.), available at http://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66731/html/CHRG112hhrg66731.htm.
100. Minerals Statistics, NATIONAL MINING ASS’N, http://nma.org/index.php/mineralsstatistics (last visited Nov. 5, 2014).
101. For a description of long-standing security issues concerning mineral security, see G.
Kevin Jones, United States Dependence on Imports of Four Strategic and Critical Minerals, 15 B.C. ENVTL.
AFF. L. REV. 217 (1988); see also Press Release, U.S. Magnetic Materials Mining Association,
USMMA Calls for Rare Earth Strategic Reserve (Feb. 23, 2011), available at http://www.
usmagneticmaterials.com/press-releases/USMMA-PR-February2011.pdf.
2015]
753
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
framework102 consisting of over three dozen federal environmental
laws,103 a multitude of state regulations,104 and complex common law
damages mechanisms and formulae.105 Industry experts note that
computer chips are composed from up to sixty different minerals or
their constituent elements.106 Given national energy needs and enormous Alaskan resources, domestic energy legal issues are of increasing
importance and play a key role in domestic Arctic law analysis.
Mining issues also illustrate instances where native regional and
village corporations are in conflict. One example is the Alaskan Red
Dog mine located on lands of the NANA regional corporation in the
102. Historically, the U.S. General Mining Law, 30 U.S.C. §§ 21-54, §§ 611-615, provided U.S.
citizens an opportunity to explore and settle uncharted lands, allowing for the mining of any
found valuable minerals. PER VESTERGAARD PEDERSON, MINERALS & MINING: A PRACTICAL GLOBAL
GUIDE 261 (2012).
103. For a description of the mandate of various U.S. agencies contending with mining
issues, see, e.g., U.S. Dep’t of the Interior Information, U.S. DEP’T OF INTERIOR, http://www.doi.gov/
library/internet/doi-info.cfm (referencing relevant agencies with mining interests, including
Bureau of Land Management, Office of Natural Resources Revenue, Bureau of Indian Affairs)
(last visited Mar. 23, 2015). With respect to Alaska, “[t]he nearly 80,000 Tribal members that make
up the 229 Tribes under the Alaska Region jurisdiction stretch from Ketchikan in the Southeast
Panhandle to Barrow on the Arctic Ocean and from Eagle on the Yukon Territory border to Atka
in the Aleutian Chain.” Alaska Region Overview, U.S. DEP’T OF THE INTERIOR, http://www.bia.gov/
WhoWeAre/RegionalOffices/Alaska/index.htm (last visited Nov. 9, 2014).
104. See Federal Environmental Laws that Govern U.S. Mining, NATIONAL MINING ASS’N, http://
www.nma.org/index.php/federal-environmental-laws-that-govern-u-s-mining (last visited June 6,
2014). Such federal laws include the well-known Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA), contending with hazardous release reporting, the
chemical regulations of the Toxic Substance Control Act, the Clean Water Act, the Safe Drinking
Water Act, and the Endangered Species Act. In addition, the Federal Land Policy and Management Act contend with issues associated with federal land degradation. Other laws less familiar to
a broad range of environmental matters— but of crucial importance to mining—include the
Federal Mining Law and the Federal Mine Safety and Health Act.
105. See Kenneth O. Corley & Ann Al-Bahish, Understanding Natural Resource Damages, 59
ROCKY MT. MIN. L. INST. 2-1, 2-3 (2013) (citing to 42 U.S.C. § 9601 (16) and 43 C.F.R. § 11.14(z)).
The authors discuss various damage formulations in the context of natural resource extraction,
including “lost use” damages related to those awarded by federal trustees to the public for loss of
resources existing from the period between when the injury occurred to its restoration. Assessing
natural resources can include a wide array of estimations, including habitat equivalency analyses,
comprehensive damage assessments, cooperative assessments or resource equivalency analyses. See
id. at 2-11. Any such estimates must comport with specific regulatory guidance or estimation
processes, if any, concerning damages. For example, see id. at 2-19 (citing NRD Related Statutory
Information, ENVTL, PROT. AGENCY, http:/www.epa.gov/superfund/programs/nrd/statute.htm (last
visited Nov. 10, 2014)). All of the administrative processes seek to assess the injury’s extent and
estimate proper injury compensation. See id. at 2-19.
106. See generally, Federal Environmental Laws that Govern U.S. Mining, supra note 104.
754
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
Northwest Arctic Borough. The Red Dog mine, one of the world’s
largest zinc producers and holder of one of the world’s largest zinc
reserves, accounts for ten percent of global zinc production.107 More
than eighty-five percent of the region’s approximately 7,300 residents
and NANA’s 12,000 shareholders are from the Iñupiat tribe.108 Under
the terms of ANSCA, NANA must share approximately half of its profits
from natural resources with the other eleven land-based regional native
corporations. This could result in a distribution of several hundred
million dollars annually: the NANA corporation’s twenty-five percent
profit share totaled $212 million in 2009 (and the other native corporations shared $112 million of that).109 While many Borough residents
benefit from the mine and associated economic activities (about sixty
percent of the 569 jobs at the mine in 2008, with a total $51 million
payroll, were held by NANA shareholders),110 nearly all Borough
residents still rely upon subsistence activities. Over the years, there have
been environmental suits against the mine by native villagers, evidencing this intersection of law, economics, and policy. Five native residents
near Red Dog were recently awarded $8 million over planned wastewater discharges into Red Dog Creek.111 The alternative to such discharge
would involve building a pipeline above or below ground from the
mine, some fifty-two miles to the Chukchi Sea, costing an estimated
$261 million.112
Administrative, environmental, energy, and property law converge
again in the context of a mining project, the proposed Pebble Project.113 This project demonstrates the complex legal overlay associated
with initiating large-scale mining projects in Alaska. We also see the
voter initiative process in action, which is effectively direct legislation,
where voters themselves enact legislation.114 The mine is projected to
107. Zinc and Lead, RED DOG MINE OPERATIONS, http://www.reddogalaska.com/Generic.aspx?
PAGE⫽Red⫹Dog⫹Site%2fZinc⫹and⫹Lead&portalName⫽tc (last visited Nov. 10, 2014).
108. UNITED STATES CENSUS BUREAU, http://factfinder2.census.gov/faces/nav/jsf/pages/
index.xhtml (last visited Nov. 10, 2014).
109. See Our View: Red Dog, Take Two, ALASKA DISPATCH NEWS (Nov. 14, 2009), http://www.adn.
com/article/20091114/our-view-red-dog-take-two.
110. See id.
111. See Adam Pinsker, Red Dog Mine Agrees to Pay $8M Fine in Discharge Lawsuit, KTUU-TV
(June 9, 2014), http://www.ktuu.com/news/news/red-dog-mine-agrees-to-pay-8m-fine-indischarge-lawsuit/26413002.
112. See id.
113. For a technical description of the mining project, see ALASKA DEP’T OF NATURAL RES.,
LAND OWNERSHIP IN ALASKA (2000), available at http://dnr.alaska.gov/mlw/factsht/land_own.pdf.
114. ALASKA CONST. art. XI, § 6.
2015]
755
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
hold more than $300 billion in precious metal deposits, including
copper and gold.115 Should Pebble become fully operational, the mine
would boost overall U.S. copper production by twenty percent.116 But
there is a long legal road to be travelled before this project becomes a
reality. The submission of development applications will require an
Environmental Impact Statement in accordance with the National
Environmental Policy Act.117 The Act sets up procedural requirements
for all federal government agencies to prepare environmental assessments and environmental impact statements, creating multiple opportunities for formal public comment and agency review. In the case of
Pebble, the minerals are located at the headwaters of rivers flowing into
one of the world’s most productive salmon fisheries.118 Through 2013,
numerous public ballot initiatives were proposed (and challenged) in
Alaska, in addition to collateral litigation and election finance enforcement proceedings.119 In 2007, a voter proposal that regulated the
release of toxic chemicals passed legal challenges and was placed on a
ballot, but was defeated.120 In 2011, a “Save our Salmon” (SOS)
initiative took place, as the relevant Borough Code was amended to
hold that development permits would not be issued where topsoil of
more than 640 acres of land would be disturbed and where there would
be “significant adverse impact” on existing waters.121 The SOS initiative
passed, 280 votes to 246, and the multi-billion dollar project was halted
in 2011.122 In March of 2014, the Alaska Superior Court invalidated the
SOS initiative, holding that if enacted the initiative would “effectively
mandate co-equal Borough and State permitting authority as to mining
activities potentially adverse to salmon streams.”123 The court held that
115. Matthew DiLallo, Pebble Mine: A $300 Billion Precious Metal Motherlode Nobody Wants to Dig
Up, DAILY FIN. (Oct. 2, 2013), http://www.dailyfinance.com/2013/10/02/pebble-mine-gold-coppermotherlode-nobody-wants.
116. Id.
117. 42 U.S.C. § 4321 et seq. (2012).
118. Michael Allan McCrae, Pebble Mine May be Blocked by “Sparingly Used” Regulation, MINING.
COM (July 20, 2014), http://www.mining.com/pebble-mine-may-be-blocked-by-sparingly-usedregulation-76746.
119. James D. Linxwiler, Voter Initiatives: Mineral Development and the Will of the People, 59 ROCKY
MTN. MIN. L. INST. 15-1, 15-13 (2013).
120. See id. at 15-1, 15-14.
121. See id. at 15-17.
122. See id.
123. Craig Medred, Judge sides with Pebble Partnership, State on “Save Our Salmon” Initiative,
ALASKA DISPATCH (Mar. 19, 2014), http://www.adn.com/article/20140319/judge-sides-pebblepartnership-state-save-our-salmon-initiative.
756
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
Alaska granted the authority to permit mines to Alaska’s Department of
Natural Resources (DNR), and the initiative would allow local governments the power to “ignore DNR’s rulings,” a power not held by any
state agency.124 The Superior Court Justice noted that Alaska’s Constitution allowed the state (and its empowered DNR), not local government, to decide whether the Pebble Project posed unacceptable risks; if
upheld, the SOS initiative would “Balkanize” Alaska’s natural resources
policies.125
V. THE FOURTH PILLAR: THE CONFLUENCE OF PRIVATE AND
TRANSBOUNDARY LAW
Increasing Arctic commercial interests, between and among Arctic
state commercial actors, warrant an exposition of transboundary private law. The U.S. Restatement of Foreign Relations Law defines
private international law as that “directed to resolving controversies
between private persons, natural as well as juridical, primarily in
domestic litigation, arising out of situations having a significant
relationship to more than one state.”126 Private law concepts and
considerations also guide the development of some areas of public
international law, notably the principles limiting the jurisdiction of
states to prescribe, adjudicate, and enforce law.127 As the increasing
worldwide reach of business in the Arctic occurs, most particularly
involving natural resource extraction, the relevance of the international private Arctic law pillar increases.128 Series of contracts between
a drilling company from Houston and a subcontractor in Tromsø are
not uncommon. In terms of the agreements themselves, we see the
ever-increasing use of standardized or “boilerplate” contracts to facilitate transboundary commerce: namely, the export of contractual provisions, or legal transplants, from one jurisdiction to another.129
124. See id.
125. See id.
126. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW § 101.
127. Id.
128. The sheer number of recently developed transnational business organizations evidences the growing import of commercial potentials. See, e.g., ARCTIC BUSINESS FORUM, http://
arcticbusinessforum.com/ (last visited Oct. 30, 2014); ARCTIC BUSINESS COUNCIL, www.arcticbusiness.com/conference/arctic-business-council (last visited Oct. 30, 2014); Arctic Economic
Council, ARCTIC COUNCIL, www.arctic-council.org/index.php/en/arctic-economic-council (last visited Oct. 30, 2014).
129. Note that boilerplate contracts may limit transaction costs associated with negotiating
an agreement and thus “speed up” the overall transaction process. See E. ALLAN FARNSWORTH,
2015]
757
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
Systemic and cultural differences between and among the legal
traditions of Arctic states will influence and affect commercial transaction outcomes and contractual interpretations. The civil and common
law traditions diverge in several areas, including the role of judges.130
The civil law tradition places a law-giving role in the hands of the
legislator, who crafts a code that motivates the judiciary’s acts.131 Civil
law judges must identify the proper existing rule and apply it to the
facts of the subject case.132 Alternately, the common law family is
organic in scope, as judges rely upon precedents.133 Common law thus
focuses upon cases, with judicial decisions modifying or adapting
rules.134 Any Arctic transboundary commercial endeavor will involve a
contract that may exist over divergent legal families. This may cause
unforeseen consequences. The civil law systems allow a judicial role in
interpreting the parties’ bargain; this judicial stance has been identified as “good faith” interpretation, whereby courts fill perceived gaps in
the bargained relationship of contractual parties.135 Under the civil law
tradition, individuals are bound by certain conduct, even if such
conduct is not specifically included within a contract. Speaking broadly,
civil law courts may reform a contract should new circumstances
emerge, rewriting the agreement to reflect what is interpreted as the
parties’ interests and intentions; if that fails, the entire contract will be
voided.136
FARNSWORTH ON CONTRACTS, vol. i, § 4.26, at 533 (1998); Arrowhead School Dist. No. 75, Park
County v. Klyap, 79 P.3d 250 (Minn. 2003).
130. Jeffrey Freisen, When Common Law Courts Interpret Civil Codes, 15 WIS. INT’L. L.J. 1, 7
(1996); Edward T. Canuel, Comparative Commercial Law: Methodologies, Black Letter Law and
Law-in-Action, 1 NORDIC J. INT’L L. 1, 3 (2012).
131. Joseph Dainow, The Civil Law and the Common Law: Some Points of Comparison, 15 AM.
J. COMP. L. 419, 424 (1967).
132. Id.
133. Robert B. Cappalli, Open Forum: At the Point of Decision: The Common Law’s Advantage over
the Civil Law, 12 TEMP. INT’L & COMP. L.J. 87, 92-94 (1998).
134. Freisen, supra note 130, at 4.
135. Pierre Garello, The Breach of Contract in French Law: Between Safety of Expectations and
Efficiency, 22 INT’L REV. L. & ECON. 407, 412 (2003); Giuditta Cordero Moss, International Contracts
between the Common Law and Civil Law: Is Non-State Law to be Preferred?, 7 GLOBAL JURIST (ADVANCES) 1,
19 (2007); Canuel, supra note 130, at 7.
136. For a description of such tendencies in the French and German civil law systems, in
addition to the “hybrid” Scandinavian system of civil and common law, see Larry A. DiMatteo, An
International Contract Law Formula: The Informality of International Business Transactions Plus the
Internationalization of Contract Law Equals Unexpected Contractual Liability, 23 SYRACUSE J. INT’L L. &
COM. 67, 86 (1997).
758
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
Under the common law approach, good faith is limitedly applied
within the commercial context.137 Unlike the civil law, common law
jurisdictions focus on remedies rather than rights and duties.138
Common law courts historically avoid judicial intervention into the
contracting parties’ relationship.139 The rationale is that the contracting parties, except in limited instances where public policy would
otherwise be contravened, should have contractual freedom to dictate
their own agreements.140
As such, contract provisions, forged under one legal tradition’s
requirements and exported to another jurisdiction, may lead to unexpected consequences. Extrinsic contracting circumstances, such as
conduct during, before, or after contract execution, are generally not
considered by the common law judge. This parol evidence rule disallows parties from producing evidence that may vary, add, or contradict
a contract’s wording.141 That rule does not exist in most civil law systems
where judges are allowed to consider such conduct.142 Another thorny
area relates to liquidated damages clauses, which act as specified
amounts intended as fair compensation for the non-breaching contractual party to be paid in lieu of contractual performance.143 Consider
the difference between that provision and a penalty clause, or an
attempt to secure performance with a purpose of deterring contractual
137. Tory Weigand, The Duty of Good Faith and Fair Dealing in Commercial Contracts in
Massachusetts, 88 MASS. L. REV. 174 (2004); DiMatteo, supra note 136, at 86.
138. Judge Richard Posner has asserted that U.S. contract law compensates for breach, and
“doesn’t really care about intentions.” RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL
THEORY 208 (1999).
139. Lucinda Miller, Penalty Clauses in England and France: A Comparative Study, 53 INT’L &
COMP. L.Q. 79, 97 (2004).
140. U.S. Supreme Court Justice Owen Roberts noted that “[f]reedom of contract is the
general rule and restraint the exception.” Morehead v. New York, 298 U.S. 587, 610-11 (1936); see
also Beacon Hill Civic Ass’n v. Ristorante Toscano, Inc., 662 N.E.2d 1015, 1017 (Mass. 1996)
(“[T]he public interest [is] to accord individuals broad powers to order their affairs through
legally enforceable agreements” (quoting ALLAN E. FARNSWORTH, CONTRACTS, § 5.1 at 345 (1990)).
141. Moss, supra note 135, at 5 n.7; but see Mark K. Glasser & Keith A. Rowley, On Parol: The
Construction and Interpretation of Written Agreements and the Role of Extrinsic Evidence in Contract
Litigation, 49 BAYLOR L. REV. 657, 705-11 (1997) (noting limited exceptions to the parol evidence
rule).
142. Moss, supra note 135, at 5.
143. See ROBERT A. HILLMAN, PRINCIPLES OF CONTRACT LAW 133 (2004) (“An amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the
other party breaches” (citing BLACK’S LAW DICTIONARY 395 (1999))).
2015]
759
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
breach through threat of punishment.144 Penalty contractual clauses,
otherwise unenforceable under the U.S. system, are allowed under the
Scandinavian civil law systems—with a Scandinavian judge empowered
to either void or reform a penalty.145 Additionally, efficient breach is
allowed under the common law tradition: if it is more efficient for a
party to breach a contract and pay expectancy damages in order to
enter a superior contract, courts will not intervene by requiring that the
breaching party pay more than was due under its contract.146 That is
not necessarily the case in the civil law context.147
Distinguishing legal traditions across Arctic states demonstrates that
certain contractual provisions may have unintended meanings when
transplanted. As such, a review should occur as to whether in Arctic
transboundary commercial contracts comparative commercial law issues derived from black letter law (or so-called “settled” textbook law
found in statutes and cases) and the application of such law (known as
“law in action”) result in differences throughout all phases of a commercial contract, from creation to enforcement. Such information is
crucial, as it would guide practitioners, academics, dealmakers, and
jurists that seek to structure optimal transactions and reach some
semblance of commercial certainty across the Arctic states.
One methodology, objective pluralism, allows such a comparative
study of Arctic law. This approach recognizes that complex legal
systems contend with complex legal problems—and should be viewed
from multiple vantage points. Objective pluralism considers three
factors. The first is economic, dealing with efficiency—namely, acting
with minimal waste, expense, and effort.148 This economic factor also
contends with transaction costs, or efficiency-draining costs that ema-
144. Penalty clauses provide for damages that do not have a reasonable relation to an actual
damages forecast. Roberty Hillman, The Limits of Behavioral Decision Theory in Legal Analysis: The
Case of Liquidated Damages, 85 CORNELL L. REV. 717, 726 (2000).
145. VIGGO HAGSTRØM, OBLIGASJONRETT 651 (2003).
146. Under efficient breach, contractual parties consider contractual breach and apply
resources towards more lucrative opportunities when the breach’s expected gains exceed assumed costs. Craig S. Warkol, Resolving the Paradox Between Legal Theory and Legal Fact: The Judicial
Rejection of the Theory of Efficient Breach, 20 CARDOZO L. REV. 321, 321-22 (1998).
147. For a discussion outlining comparative contractual analysis under a U.S. and Norwegian
framework that explores efficiency under the civil law context, see Edward T. Canuel, Objective
Pluralism: The Comparative Law Tool, 6 INT’L J. PRIV. L. 150, 154-57 (2013).
148. See, e.g., Ugo Mattei, Efficiency in Legal Transplants: an Essay in Comparative Law and
Economics, 14 INT’L REV. L. & ECON. 3 (1994); Richard C. Bishop, Economic Efficiency, Sustainability,
and Biodiversity, in 22 AMBIO 69-73 (May, 1993) (describing efficiency under environmental
context).
760
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
nate from contractual provisions, from ex ante to ex post.149 The next
factor is social150 and involves a modeling that determines how individuals react to divergent legal rules and regimes, with the expectation that
the results of such reactions lead to predicting “certain” individual
responses. The final factor pertains to relational contracting law perspectives, involving contracts that may “relate” in duration or degrees.151
The totality of this review allows a balanced perspective offering
valuable, unique insights. Objective pluralism forestalls the tempting
default inclination to automatically apply identical meanings to specific
transplanted contractual terms.
One scholarly way to explore the application of black letter comparative law through law in action involves a survey.152 A well-structured
survey with a proper sampling may yield important insights. Comparative law surveys must also use a variety of sampling techniques, respecting and considering cultural differences, linguistic preferences, and
sociological factors. Handled properly, objective pluralism allows a
fulsome commercial comparative law review, providing the comparativist with a deeper understanding of select legal systems. This methodology, weighing economic, social, and cultural considerations, provides a
toolkit from which to review a legal problem. The survey, the optimum
method of conducting an objective pluralism review, may reveal subtleties and perceptions that defy preconceived viewpoints or assumptions.
149. See generally, Oliver E. Williamson, Transaction Cost Economics: The Governance of Contractual Relations, 22 J.L. & ECON. 233 (1979); NICHOLAS L. GEORGAKOPOULOS, PRINCIPLES AND METHODS
OF LAW AND ECONOMICS: BASIC TOOLS FOR NORMATIVE REASONING 246 (2005).
150. Tanina Rostain, Educating Homo Economicus: Cautionary Notes on the New Behavior and
Law and Economics Movement, 34 LAW & SOC’Y REV. 973, 983 (2000).
151. Dori Kimel, The Choice of Paradigm for Theory of Contract: Reflections on The Relational Model,
27 OXFORD J. LEGAL STUD. 233, 235 (2007); Robert B. Thompson, Value Creation By Lawyers Within
Relational Contracts and in Noisy Environments, 74 OR. L. REV. 315, 317 (1995); Stephen Carson et al.,
Uncertainty, Opportunism, and Governance: The Effects of Volatility and Ambiguity on Formal and
Relational Contracting, 49 ACAD. MGMT. J. 1058, 1058-77 (2006).
152. For a description analyzing the methodologies necessary in completing a survey across
legal systems, see Canuel, supra note 147, at 154-57. See also José B. Ashford, Comparing the Effects of
Judicial Versus Child Protective Service Relationships on Parental Attitudes in the Juvenile Dependency
Process, 16 RES. ON SOC. WORK PRAC. 582, 584 (2006); Hung-En Liu, Custody Decisions in Social and
Cultural Contexts: In-Depth and Focus Group Interviews with Nineteen Judges in Taiwan, 17 COLUM. J.
ASIAN L. 225, 229 (2004).
2015]
761
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
VI. CONCLUSION: EVER FORWARD? THE UNANSWERED QUESTIONS
OF ARCTIC LAW
‘Would you tell me, please, which way I ought to go from here?’
‘That depends a good deal on where you want to get to,’ said the Cat.
‘I don’t much care where—’ said Alice.
‘Then it doesn’t matter which way you go,’ said the Cat.
‘—so long as I get SOMEWHERE,’ Alice added as an explanation.
‘Oh, you’re sure to do that,’ said the Cat, ‘if you only walk long
enough.’153
As we embark on defining a burgeoning legal field, we must be aware
that providing an analytical framework for comparativists is essential.
Arctic law, as a composite of hard, soft, domestic, and transboundary
law, offers opportunities for practitioners, policymakers, and scholars
to investigate and help shape a multi-disciplinary field. This is no small
task and challenges abound.
Comparativists confront a series of hurdles when analyzing, explaining, and understanding Arctic law. All comparativists, whether or not
focusing on the Arctic, must discover new legal patterns or trends and
understand the domestic and international systemic components of a
legal problem or process, all while accounting for the cultural, social,
and economic features specific to an individual state.154 This is never
an easy task, but is perhaps even more complex within the Arctic
context. For example, while understanding and recognizing the diverging legal systems of the Arctic states,155 there remain a series of cultural
issues concerning substate actors, including the indigenous peoples of
the Arctic and the increasing number of regional, domestic, and
international organizations and institutions with an interest in the
region. The influential force of public law in the Arctic on private
actors through hard and soft law also cannot be discounted. By
discovering legal patterns “in action” across, within, and outside spe-
153. LEWIS CARROLL, ALICE’S ADVENTURES IN WONDERLAND 89-90 (MacMillan & Co. 1920)
(1865).
154. See generally, Daniel A. Farber, Book Review: The Hermeneutic Tourist: Statutory Interpretation
in Comparative Perspective, 81 CORNELL L. REV. 513, 515 (1996); Lara M. Pair, Cross-Cultural
Arbitration: Do the Differences between Cultures still Influence International Commercial Arbitration Despite
Harmonization?, 9 ILSA J. INT’L & COMP L. 57 (2002); John D. Jackson, Playing the Culture Card in
Resisting Cross-Jurisdictional Transplants: A Comment on Legal Processes and National Culture, 5
CARDOZO J. INT’L & COMP. L. 51, 60 (1997).
155. Schadbach, supra note 7, at 333 (providing an overview of general comparative law
analytical frameworks).
762
[Vol. 46
THE FOUR ARCTIC LAW PILLARS
cific legal systems, new alternatives to previously understood “black
letter law” can be gleaned, perhaps revealing otherwise obscured
domestic commonalities.156
And there are many questions which should be tackled. For example,
can we discover deeper meanings in Arctic hard and soft law? Future
lines of inquiry may include the increasing commonality of hard law,
binding Arctic Council agreements, the possible “softening” of hard
law, and the means by which individual Arctic states traverse their
domestic legislative mechanisms to create domestic (and perhaps
international) Arctic public law. An additional avenue for consideration is the extent to which today’s soft law might be incorporated into
tomorrow’s hard law. Factors to consider whether soft law may so
“evolve” include the source and origin of the soft law text, how it was
adopted, and how states react to it.157 If the goal of policymakers is to
create an expedient legal process that can earn the support of a wide
array of stakeholders, then perhaps soft law may be the way point
toward a fully developed Arctic law— easier to achieve than hard law,
while still facilitating compromise and mutually beneficial cooperation.
As Arctic commercial development, domestically and regionally,
becomes an increasing reality, the careful interplay of domestic and
transboundary commercial law must not be disregarded. Do we see
commonalities in how, for example, indigenous Arctic law is being
developed in the United States as compared to other Arctic states,
across legal traditions? Are there ways to more effectively undertake
multi-jurisdictional transactions across legal systems, all the while being
cognizant of the different perspectives of different stakeholders? What
are the legal, policy, economic, and social concerns affecting decisionmakers, citizens of the North, and investors when contemplating an
Arctic cross-border commercial deal? How can commercial certainty
(to the extent that such certainty may ever exist) facilitate policymaker
goals of sustainable Arctic business development? To that end, can we
achieve common legal understandings as to what sustainable development means in the Arctic? Additionally, can a review of multiple legal
questions utilizing the tool of objective pluralism yield important
insights into contractual undertakings?
The questions are many, and an emerging set of Arctic research
centers may lead the way. By gathering researchers, private sector
representatives, and interested domestic parties (including indigenous
156. Farber, supra note 154, at 515.
157. Dupuy, supra note 39, at 431.
2015]
763
GEORGETOWN JOURNAL OF INTERNATIONAL LAW
peoples, government actors, non-governmental representatives, and
experts in various legal disciplines across Arctic states), a small circle of
experts can help mold the comparativist Arctic law framework for
future generations. This is no small task, and the stakes are high.
Possible commercial development in “the world’s last frontier,” without
an understanding of how law can capture the various social, cultural,
political, and economic forces at play, may lead to unsustainable Arctic
development. Through such fora dedicated to fostering expertise
across states and recognizing the challenges ahead (particularly for
aspiring comparativists), we can, from a small seed, grow a mighty tree,
even in the Arctic.
764
[Vol. 46