Marine Policy 36 (2012) 832–838

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Marine Policy
journal homepage: www.elsevier.com/locate/marpol

Adoption of the arctic search and rescue agreement: A shift of the arctic
regime toward a hard law basis?
Shih-Ming Kao, Nathaniel S. Pearre, Jeremy Firestone n
University of Delaware, College of Earth, Ocean and Environment, School of Marine Science and Policy, Robinson Hall, Delaware 19716, USA

a r t i c l e i n f o a b s t r a c t

Article history: This paper examines the Arctic Search and Rescue Agreement—the first legally-binding instrument
Received 20 June 2011 negotiated and adopted under the auspices of the Arctic Council—and analyzes its implications for the
Accepted 1 December 2011 current Arctic regime. Led by the Arctic Council, the Arctic regime was established in a soft law format.
Available online 21 December 2011
However, the soft law nature and restricted mandates of the Arctic Council have limited its capacity to
Keywords: respond to new issues emerging from climate change, particularly those related to the exploitation of
Arctic regime oil and gas reserves, commercial shipping through the region, effects on wildlife, and impacts on
Arctic council indigenous peoples’ homelands and culture. The adoption of the Agreement represents a new approach
Search and rescue for the Arctic States to respond to these new challenges. At the same time, it does not imply that a
Climate change
legally-binding instrument is necessarily preferable for every issue, and importantly, the new Arctic
Oil exploration
Agreement does not establish new institutional relationships, suggesting satisfaction among the Arctic
States with the existing arrangements. Thus, although the Arctic regime is undoubtedly changing, this
change should not be treated today as a shift from soft to hard law. What is more certain is that the
Arctic Council will continue to function as a cooperative forum where the Arctic States can address
these challenges, and its importance will only increase in coming years.
& 2011 Elsevier Ltd. All rights reserved.

1. Introduction
On 12 May 2011, Ministers representing the Arctic States1
signed the Agreement on Cooperation on Aeronautical and Mar-
itime Search and Rescue in the Arctic (the Arctic SAR Agreement)
in the Seventh Ministerial Meeting of the Arctic Council convened
in Nuuk, Greenland. The adoption of this Agreement, as indicated
in the Nuuk Declaration, also adopted at the same Meeting, was a
measure to strengthen the Arctic Council’s ability to face the
changing environmental and political conditions in the Arctic.
This Agreement was the first legally-binding instrument nego-
tiated and adopted under the auspices of the Arctic Council. As a
region that is governed by a non legally-binding regime, could the
adoption of this legally-binding Agreement represent the begin-
ning of a shift of the Arctic Regime from soft law to hard law?
The purpose of this article is to aid in the understanding of the
contents of the Arctic SAR Agreement and analyze its implications
n
Corresponding author. Tel.: þ1 302 831 0228; fax: þ1 302 831 6838.
E-mail addresses: kaosm@udel.edu (S.-M. Kao),
npearre@UDel.Edu (N.S. Pearre), jf@udel.edu (J. Firestone).
1
The Arctic is physically surrounded by five coastal States, including Canada,
Norway, Russia, Denmark (through Greenland), and the United States. Finland,
Iceland, and Sweden are counted as well because part of their land territory
locates within the Arctic Circle, notwithstanding they do not have a coast in the
Arctic Ocean. These eight States are thus referred to as the ‘‘Arctic States.’’
for the current Arctic regime. This article is divided into four
sections. It begins with some basic facts about the Arctic and the
Arctic regime. Secondly, it introduces the recent environmental
and political changes in the Arctic, particularly new issues
emerging related to Arctic sea ice melting. Thirdly, the contents
of the Arctic SAR Agreement are analyzed, particularly its con-
nection to other shipping-related conventions within the frame-
work of the International Maritime Organization (IMO). Lastly,
some possible implications of the adoption of the Arctic SAR
Agreement for, and possible future developments of, the current
Arctic regime are provided and discussed.
2. The Arctic and the Arctic regime
The Arctic is characterized by ‘‘a harsh climate with extreme
variation in light and temperature, short summers, extensive
snow and ice cover in winter and large areas of permafrost’’ [1].
However, this region is also a ‘‘sacrifice zone’’ due to its geo-
graphic features, serving as a reservoir for hazardous substances
produced elsewhere in the world, such as radioactive materials,
persistent organic pollutants (POPs), and heavy metals. These
substances can pose a threat not only to Arctic living resources
and the natural environment, but also to the health of indigenous
residents of the Arctic. Many of these hazardous substances can
bio-accumulate in the fatty tissues and blood of animals such as

0308-597X/$ - see front matter & 2011 Elsevier Ltd. All rights reserved.
doi:10.1016/j.marpol.2011.12.001
 S.-M. Kao et al. / Marine Policy 36 (2012) 832–838
marine mammals, fish, and sea birds, on which indigenous
peoples rely in their daily diet [2]. Therefore, a regional govern-
ance regime addressing these threats in the Arctic was urgently
needed.
Before discussing this topic, it will be useful to have a common
understanding of the meaning of the three concepts: ‘‘regime,’’ ‘‘hard
law,’’ and ‘‘soft law.’’ Although the notion of a regime may have as
many definitions as it does proponents, it has been most broadly
conceptualized by Krasner as ‘‘a set of implicit or explicit principles,
norms, rules, and decision-making procedures around which actors’
expectations converge in a given area of international relations’’
where principles are ‘‘beliefs of fact, causation, and rectitude,’’ norms
are ‘‘standards of behavior defined in terms of rights and obliga-
tions,’’ rules are ‘‘specific prescriptions or proscriptions for action,’’
and decision-making procedures are ‘‘prevailing practices for mak-
ing and implementing collective choice’’ [3]. In addition, a ‘‘hard
law’’ regime means that the regime is established and regulated by a
legally-binding instrument, usually a ‘‘Treaty,’’ ‘‘Convention,’’ or an
‘‘Agreement.’’ A State Party is compelled to comply with the
requirements set forth in a hard law instrument and is also subject
to compliance and enforcement mechanisms set forth therein (to
the extent any exist in its articles) if it does not fulfill its legal
obligations. On the other hand, a ‘‘soft law’’ regime refers to a regime
that is based on a non legally-binding instrument. It relies on
‘‘international norms that are deliberately non-binding in character
but still have legal relevance, located in the twilight between law
and politics’’ [4]. Such instruments are variously titled, and include
declarations, memoranda of understanding, code of conduct, pro-
grammes, and plan of action or implementation. Obligation pledges
in these instruments are not strictly compulsory. Participation of
States is voluntary, and all participants address the subjects called
upon in the instrument based on their goodwill.
The history of the Arctic regime can be traced back to the late
1980s. In response to the threats described above, Finland convened
a conference in Rovaniemi in 1989 to bring all Arctic States together
to discuss the protection of the Arctic environment. This conference
was inspired by the famous speech of the former Soviet Union’s
General Secretary Mikhail Gorbachev in Murmansk (known as the
Murmansk speech) in 1987, in which he called for greater coopera-
tion among the Arctic States to turn the Arctic into a ‘‘zone of peace.’’
Environmental protection was one of the cooperative issues enun-
ciated in that speech [5]. This was a significant step in the Arctic
because the region had not previously been perceived as a place for
intergovernmental cooperation; rather it had been a military hot
spot during the cold war. The Arctic used to be controlled by the two
superpowers, the Soviet Union and the United States, along with
their allies, primarily because the shortest route between the
Capitals of these two superpowers was across the Arctic. Domina-
tion of this region was thus strategically important [6].
In 1991, the Arctic States met in Rovaniemi again, and signed the
Declaration on the Protection of the Arctic Environment (the
Rovaniemi Declaration), in which they adopted the Arctic Environ-
mental Protection Strategy (AEPS) [7]. To fulfill its objective, the
AEPS established four working groups to address four different
areas, namely the Arctic Monitoring and Assessment Programme
(AMAP), the Conservation of Arctic Flora and Fauna (CAFF), the
Emergency Prevention, Preparedness and Response (EPPR), and the
Working Group on Protection of the Arctic Marine Environment
(PAME) [8]. Both the Rovaniemi Declaration and the AEPS are ‘‘soft
laws’’ by their nature. Therefore, they impose no compulsory legal
obligations on the Arctic States; but rather rely upon the political
goodwill on the part of these States to protect the Arctic
environment.
In the Second Meeting of the AEPS held in 1996, the Arctic
States ‘‘fully committed to the earliest possible establishment of
the Arctic Council’’ as a high-level intergovernmental forum to
833
provide a means for promoting cooperation, coordination and
interaction among them [9]. Six months later, the Arctic States
met in Ottawa, Canada again, and signed the Declaration on the
Establishment of the Arctic Council (the Ottawa Declaration)
to establish the Arctic Council as a cooperative forum, particularly
to address issues of sustainable development and environmental
protection in the Arctic. However, matters related to military
security were explicitly excluded from its mandate [10].
After its establishment, the four working groups previously
created under the auspices of the AEPS were integrated as part of
the Arctic Council. A new working group, the Sustainable Develop-
ment Working Group (SDWG), was established by Arctic Ministers
at the first Arctic Council Ministerial Meeting in September 1998 to
‘‘protect and enhance the economies, culture and health of the
inhabitants of the Arctic, in an environmentally sustainable manner’’
[11] In 2000, the Arctic Council adopted the Action Plan to Eliminate
Pollution in the Arctic (ACAP) as a separate program to address the
prevention and remediation of pollution such as POPs, heavy metals,
radioactive substances, as well as the depletion of the ozone layer
[7, pp. 151–152]. The ACAP was later upgraded to working group
status and had its name changed to the Arctic Contaminants Action
Program [12], which made the total number of Arctic Council’s
working groups six.
Overall, the Arctic regime, led by the Arctic Council was
established in a soft law format. Although other international
conventions also apply in the Arctic, such as the United Nations
Convention on the Law of the Sea (UNCLOS), the Convention on
Biological Diversity (CBD), the United Nations Framework Con-
vention on Climate Change (UNFCCC), and the US–Russia Bilateral
Agreement for Polar Bears of the Chukchi Sea Population, the
cooperation for the protection of the Arctic environmental is
primarily undertaken within the framework of the Arctic Council
[13]. With the creation of the Arctic Council, there was no
significant change to the mandate established in the AEPS, as both
it and the Arctic Council primarily address environmental protec-
tion and sustainable development through non legally-binding
regional mechanisms. Similarly, the institutional arrangement did
not change much during the transition from the AEPS to the Arctic
Council [6, p. 147]. The most significant change associated with
the transition was that the membership status of the organizations
representing indigenous peoples was upgraded from observers in
the AEPS to ‘‘Permanent Participants’’ in the Arctic Council, in
order to ‘‘provide for the active participation and full consultation
with the Arctic indigenous representatives with the Arctic Coun-
cil’’ [10]. Currently, there are six Permanent Participants [14].
Although the Arctic Council regime has, to a certain degree,
successfully fulfilled its mandate to protect the Arctic environment,
it is not without limitations and weaknesses, particularly in the age
of climate change, and its ice-free implications for shipping, offshore
oil and gas exploration and development, wildlife, and indigenous
peoples. The Arctic Council has no authority to adopt legally-binding
resolutions for shipping in the region. This competency rests
primarily with IMO. It does not address fishing, a serious threat to
marine environment and biodiversity; and it has neither compliance
nor enforcement mechanisms [13, p. 561]. Furthermore, the Arctic
Council has no mandate to address sovereignty issues related to the
extended continental shelf claims recently raised for the oil and gas
reserves underlying the region. Therefore, whether the capacity of
the Arctic Council is sufficient to address the huge pressures being
raised by climate change is worthy of consideration.
3. New concerns emerging from climate change in the Arctic
Climate change has affected the Arctic more dramatically
than any other regions in the northern hemisphere. In particular,
834 S.-M. Kao et al. / Marine Policy 36 (2012) 832–838
the melting of sea ice in the Arctic Ocean and of the glaciers on
the Greenland land-mass are taking place at an unprecedented
rate [13, p. 534]. The summer of 2007 marked record-breaking
shrinkage of the Arctic sea ice extent, and it was estimated that
‘‘the Arctic Ocean could become ice free in summer between 2030
and 2100’’ [15]. These drastic environmental changes could not
only endanger the sensitive ecosystems in the Arctic, with
catastrophic environmental consequences such as the survival
of polar bears, but also could profoundly impact the lives of
human beings through mechanisms such as sea-level rise led by
the melting of Greenland glaciers [16].
Although much of the world considers these environmental
changes as social and ecological threats, the Arctic States also
have realized that the consequences of climate change in the
Arctic represent economic and political opportunities [16]. The
melting of the Arctic sea ice has increased the possibility of
human activities in the region, such as the exploration and
exploitation of the oil and gas reserves lying underneath the ice,
as well as commercial shipping through the Arctic. All of these
activities could cause the Arctic to become a region of coopera-
tion, competition, and/or conflict in coming years [17].
3.1. Sovereignty claims over the extended continental shelf in the
Arctic
In 2007, a Russian submarine planted a Russian flag on the
Arctic seabed below the North Pole. Provoked by Russia’s action,
sovereignty disputes of the Arctic seemingly have begun to
resurface. However, there are in fact no disputes concerning land
territory among the Arctic States in the region, with the single
exception of the Hans Island dispute between Canada and Den-
mark [18]. Offshore, there are only handful of maritime boundary
disputes existing in the Arctic, such as the disputes between the
United States and Canada in the Beaufort Sea, between the United
States and Russia in the Bering Sea; and until its settlement on 15
September 2010, between Norway and Russia in the Barents Sea
[17, p. 4]. Although there is a possibility that previously unknown
tiny islands could be discovered under the ice, and could result in
territorial disputes similar to the Hans Island, it is fair to say that
territorial and maritime delimitation disputes are not a core issue
in the Arctic today.
Claims over continental shelves beyond 200 nm, motivated by
easier access to potential offshore oil and gas reserves are perhaps
the main sovereignty issues in the Arctic. According to a 2008
estimate by the United States Geological Survey (USGS), there are
huge reserves of undiscovered oil and gas lying underneath the
Arctic, including approximately 90 billion barrels of oil, 1669
trillion cubic feet of natural gas, and 44 billion barrels of natural
gas liquids [19]. Shrinking Arctic sea ice extent has resulted in
increasing areas of ice-free ocean during the summer, which
affords States bordering the Arctic greater opportunities to con-
duct seismic surveys, potentially followed by offshore drilling, in
previously inaccessible regions. These reserves become more
valuable to these States as the price of oil increases, other
domestic reserves are diminished, and States seek to reduce their
dependence on foreign sources of oil and natural gas. Therefore,
there is little doubt that States bordering the Arctic will maneuver
for the exploration and exploitation of these oil and gas reserves
once access becomes practicable [20].
Since the Arctic is mainly composed of water (the Arctic
Ocean), the United Nations Convention on the Law of the Sea
(UNCLOS), ‘‘a constitution for the oceans’’ [21], applies to the
region. Under UNCLOS, the only way that an Arctic State can have
sovereign rights to these oil and gas reserves is to claim them
within its continental shelf. The Convention provides that a
coastal State’s continental shelf extends from the outer edge of
its territorial sea to 200 nautical miles (nm) from its baselines
(inner continental shelf), and further provides the possibility to
claim the outer limits of its continental shelf up to 350 nm. If a
State wishes to claim that its continental shelf extends beyond
200 nm, it is required to make a submission, along with support-
ing scientific and technical data, to the Commission on the Limits
of the Continental Shelf (CLCS) ‘‘within 10 years of the entry into
force of this Convention for that State’’ [22]. The 10-year deadline
for States that were party to UNCLOS prior 13 May 1999,2 based
on a CLCS Decision in 2001 [23], was 12 May 2009.
To date, two States bordering the Arctic have sent submissions
to CLCS. Russia was the first State to summit its extended
continental shelf claim in the Arctic in 2001, which included four
different areas covering almost half of the Arctic Ocean [24].
Following that submission, all other bordering States3 and Japan
filed their respective responses to the Secretariat General of the
United Nations to preserve their rights in the regions claimed by
Russia [25]. After examining Russia’s submission and the
responses from other Arctic States, CLCS decided that Russia
needed to provide additional scientific data before it could make
a final recommendation on the outer limits of Russia’s continental
shelf [26].
On 27 November 2006, Norway became the second bordering
State to submit an extended continental shelf claim to CLCS, which
included three different areas in the Arctic: the Banana Hole in the
Norwegian and Greenland Seas, the Western Nansen Basin in the
Arctic Ocean, and the Loop Hole in the Barents Sea [27]. The first
two areas encountered no challenges from other States, but Russia
protested that the region claimed by Norway in the Barents Sea
was subject to a ‘‘maritime dispute’’ for the purpose of the Rules of
Procedure of the Commission, in that the delimitation of the
continental shelf between Russia and Norway had not yet been
settled [28]. On 27 March 2009, CLCS announced its agreement
with Norway’s submission, in which the Commission agreed with
Norway’s claims in the first two areas; however, in the last area, it
recommended that ‘‘only a bilateral delimitation between Norway
and the Russian Federation remains to be carried out to delineate
the extent of each coastal State’s continental shelf in the Loop
Hole’’ [29].
Other than these two States, Canada and Denmark (for Greenland)
have not yet submitted their extended continental shelf claims to
CLCS. Canada and Denmark ratified UNCLOS in 2003 and in 2004 [30],
respectively, thus the deadlines to file their submissions with CLCS,
based on the aforementioned 10-year rule, are 2013 and 2014,
respectively, meaning that each State still has time to complete its
submission. As evidenced by the fact that Canada and Denmark have
greatly funded their ocean mapping projects in the Arctic recently
[20, p. 362], it is reasonable to anticipate that both States will timely
summit their respective extended continental shelves claims to the
CLCS. The United States is the only bordering State that is not able to
submit its extended continental shelf claim to CLCS because it has not
yet ratified UNCLOS. Although the issue of accession to UNCLOS has
been discussed by the United States Senate since 2007 [13, p. 539], it
is too early to tell whether the United States will ratify UNCLOS in the
near-term.
2
This is the date that the Scientific and Technical Guidelines were adopted by
CLCS, which gave clear and detailed guidance to States to prepare their submis-
sions to CLCS.
3
Based on Rule 50 of the Rules of Procedure of the CLCS, the Secretary-
General ‘‘shall, through the appropriate channels, promptly notify the Commission
and all States Members of the United Nations, including States Parties to the
Convention, of the receipt of the submission.’’ In other words, States that are not
Contracting Parties such as the United States cannot make submissions to CLCS,
but they can submit their responses to the Secretary General of the United Nations
to preserve their rights.
 S.-M. Kao et al. / Marine Policy 36 (2012) 832–838
It is worth noting that CLCS has no authority to make
recommendations on bilateral maritime boundary delimitation
[31], thus it is not a forum for settling maritime claims and
boundary delimitation in disputed waters. The CLCS process,
nevertheless, can be a useful policy tool to ‘‘highlight, accentuate,
or assert a State’s maritime claims’’ [32]. Therefore, it is expected
that States bordering the Arctic will continue to assert their
sovereignty over the continental shelves beyond 200 nm, through
the CLCS, in the future.
3.2. Commercial shipping in the Arctic
Searching for a shorter route from the Atlantic to Asia has been
a goal of maritime powers since the 16th century. Attempts to
locate and successfully navigate a passage through the Arctic
continued until the completion of the Panama Canal in the early
20th century, given the considerations of hostile weather condi-
tions in the Arctic and fewer costs through the canal [18, p. 337].
However, rapid Arctic sea ice melting could make navigation
through the Arctic a reality in the future. This route could save
several thousands of miles and several days of sailing between
major trading cities on the North Atlantic and in Northeast Asia,
and significantly reduce shipping costs between these two areas
[17, p. 13].
Two routes could potentially open in the Arctic if Arctic sea ice
melting continues. The Northern Sea Route (also known as the
Northeast Passage, NEP) connects Northeast Asia and Northern
Europe, and was opened up by Russia to all countries as a
shipping route in 1991. However, this route is almost not used
by non-Russian ships today, particularly due to the increase of
costs and the need for special vessel designs [13, p. 545]. The
other is the Northwest Passage (NWP) running through the
Canadian Arctic Islands, potentially connecting Northeast Asia
and the east coast of North America.
Unlike the NEP, the NWP has been associated with political
and legal maneuvering. Canada asserts that the waters between
its Arctic Islands are ‘‘internal waters’’ on historical grounds [13,
p. 544]. To further consolidate its claim, Canada drew straight
baselines around its Arctic islands in 1985, and formally declared
that the waters landward of these baselines were internal waters
[33]. Canada’s sovereignty over the NWP would imply that
Canada has the right to exclude foreign ships, and also that
Canada can charge foreign vessels a fee for passage [20, p. 354].
This claim, however, was protested by other maritime States.
These States, led by the United States and the European Union,
asserted that the NWP, like the NEP, is ‘‘an international strait’’
open to use by all. That designation would give other States a
right of ‘‘transit passage,’’ imposing fewer restrictions on transit-
ing ships under UNCLOS, than they would have transiting in a
coastal State’s territorial sea.
However, this disagreement was to a certain degree settled
when Canada and the United States signed a bilateral agreement
on Arctic cooperation in 1988 [34]. Although that agreement did
not explicitly resolve the legal status of the NWP, it does lend
strength to Canada’s claim because the United States agreed that
‘‘all navigation by US icebreakers within waters claimed by
Canada to be internal will be undertaken with the consent of
the Government of Canada’’ [34, para. 3]. This sentence implied
that the United States recognized Canada’s sovereignty over these
waters. It is believed by some scholars that the United States
prefers to have the NWP completely under the Canadian jurisdiction
rather than open for all States due to security concerns [13, p. 565].
Regardless of its legal status, since navigation through the Arctic has
tremendous business benefits, there is no doubt that commercial
shipping though the Arctic will be more and more frequent as the
ice retreats.
835
4. The agreement on cooperation on aeronautical and
maritime search and rescue in the Arctic
In response to the increasing aeronautical and maritime
transportation opportunities and human activities related to the
exploitation of resources, the member States of the Arctic Council
officially signed the Arctic SAR Agreement in the Seventh Minis-
terial Meeting on 12 May 2011, with the participation of the
International Civil Aviation Organization (ICAO). This Agreement
will ‘‘enter into force 30 days after the date of receipt by the
depositary of the last written notification through diplomatic
channels’’ [35].
4.1. Search and rescue in international law
The duty of States to provide assistance for persons and vessels
in distress at sea is enunciated in numerous international con-
ventions including UNCLOS, and several international conven-
tions within the framework of IMO, including the International
Convention for the Safety of Life at Sea (SOLAS) and its amend-
ments, the International Convention on Maritime Search and
Rescue (SAR Convention), and the International Convention on
Salvage (Salvage Convention). No international arrangement con-
cerning SAR operations, however, was established until the
adoption of the SAR Convention on 27 April 1979.
After the SAR Convention entered into force on 22 June 1985,
the Maritime Safety Committee (MSC) of IMO divided the world’s
oceans into 13 SAR areas, and those States in the same area were
charged with delimiting the SAR regions for which they are
responsible [36]. For instance, Morocco and Spain [37] delimited
their respective SAR regions bilaterally, as did Malta and Libya
[38]. The SAR Convention also requires that States establish
rescue coordination centers (RCCs) and rescue sub-centers (RCSs)
from which to conduct SAR operations [39]. In general, under the
framework of the SAR Convention, SAR operations are conducted
by each State in its SAR region, but the boundaries of that region
first must be agreed upon with adjacent States. In other words,
although the SAR Convention is a global approach to bring all
coastal States together to address SAR operations, its implemen-
tation is in fact unilateral.
The IMO also intended to coordinate its maritime SAR opera-
tions with aeronautical SAR operations, which are primarily
addressed in the 1944 Convention on International Civil Aviation
(the Chicago Convention) under the authority of ICAO. The SAR
Convention requires that ‘‘Parties shall ensure the closest practic-
able coordination between maritime and aeronautical services so
as to provide for the most effective and efficient search and rescue
services in and over their search and rescue regions’’ [39,
Chapter 3.2] Further, IMO and ICAO jointly developed the Inter-
national Aeronautical and Maritime Search and Rescue (IAMSAR)
Manual, which was aligned as closely as possible with the ICAO
Search and Rescue Manual to ‘‘ensure a common policy and to
facilitate consultation of the two manuals for administrative or
operational reasons’’ [40]. These texts indicate that the maritime
and aeronautical SAR operations that were implemented sepa-
rately in the past are now intended to be closely connected. Thus,
it is not surprising that the Arctic SAR Agreement addresses both
maritime and aeronautical SAR operations in the Arctic.
4.2. Analysis of the Arctic SAR convention
The Arctic SAR Agreement contains 20 Articles, an Annex
delimiting the area of each State’s SAR jurisdiction and three
Appendices, which define competent authorities, SAR agencies,
and RCCs of each Party. The SAR Agreement does not have its own
terms and definitions (other than the term ‘‘territory of a Party’’);
836 S.-M. Kao et al. / Marine Policy 36 (2012) 832–838
rather Article 1 provides that ‘‘the terms and definitions con-
tained in Chapter 1 of the Annex to the SAR Convention and in
Chapter 1 of Annex 12 to the Chicago Convention shall apply’’ to
the Agreement. The objective of the Arctic SAR Agreement, as
states in Article 2, is ‘‘to strengthen aeronautical and maritime
search and rescue cooperation and coordination in the Arctic.’’
Articles 3 through 6 regulate the scope of application of the
Agreement, competent authorities of the Parties, agencies respon-
sible for aeronautical and maritime SAR, and the establishment of
the RCCs, respectively, further details of which are provided in the
Annex and three Appendices. However, the delimitation of SAR
regions and the exercise of SAR operations have raised some
sovereignty concerns over maritime areas as they did in the
Mediterranean [41]. To avoid these concerns, the Agreement
explicitly states that ‘‘the delimitation of search and rescue
regions is not related to and shall not prejudice the delimitation
of any boundary between States or their sovereignty, sovereign
rights or jurisdiction’’ [35, Article 3(2)].
As Article 1 refers to the preexisting terms and definitions,
Article 7 refers to the SAR Convention, the Chicago Convention,
and the IAMSAR Manual as the basis of conduct of SAR operations,
and provides detail procedures when the Parties conduct aero-
nautical and maritime SAR operations in the Arctic. Article
8 stipulates that a Party shall request permission to enter the
territory of another Party or Parties (including the land areas,
internal water and territorial seas) for SAR purposes, which
reaffirms that the exercise of SAR operations shall not prejudice
the sovereignty of a coastal State, but also implies that the Arctic
SAR Agreement does not grant coastal States authority to regulate
SAR operations in their Exclusive Economic Zones (EEZs), because
no permissions are required in an EEZ. Article 9 emphasizes that
the Parties shall enhance cooperation among themselves in
matters relevant to the Agreement, such as information exchange
and promotion of mutual SAR cooperation.
Article 10 creates the Meeting of the Parties, stating that the
Parties shall meet on a regular basis to consider and resolve issues
concerning practical cooperation, such as reciprocal visits, joint
SAR exercises and training, and planning, development and use of
communication systems. Article 12 requires that each Party bear
the costs deriving from its implementation of this Agreement
unless otherwise agreed. This requirement is consistent with the
fact that SAR operations are conducted on an individual State
basis (see Section 4.1). In addition, Article 11 also encourages
Parties to conduct joint SAR operations. This multilateral aspect
again exists in Article 9, which requires the Parties to enhance
cooperation among themselves in matters relevant to this Agree-
ment, such as information exchange and mutual SAR cooperation.
The Agreement also contains a dispute settlement provision, in
which the Parties agree to ‘‘resolve any disputes concerning the
application or interpretation of this Agreement through direct
negotiations’’ [35, Article 17].
Unlike many international agreements, the Arctic SAR Agree-
ment does not establish its own institutional arrangements (e.g., a
Secretariat, Committees, or Working Groups) except for the
Meetings of the Parties. It contains no provisions regarding
decision making procedures. Last, SAR operations seem to mean
different things to different Parties, as suggested by the compe-
tent Authorities of the respective Parties listed in the Appendix I.
For instance, some Parties designate their transportation or
maritime agencies as the Competent Authority while others
designate agencies with competency over national or civil defense
or policing, and Iceland and Finland (jointly with transport safety)
designate Ministries of the Interior.
Overall, the Arctic SAR Agreement is greatly influenced by the
SAR Convention and the Chicago Convention. This is particularly
the case in its reliance on these Conventions for terms and
definitions, the establishment of the RCCs and RCSs, and as the
basis for SAR operations. The scope of the Agreement and the
measures enunciated in its provisions are very similar to the
provisions in those two Conventions and in the IAMSAR Manual.
This similarity, along with the weaknesses listed above, leads to
the conclusion that the Arctic SAR Agreement, although a new
adopted legally-binding instrument, primarily reaffirms the com-
mitments of the Arctic States to both conventions to which they
are Parties rather than imposing new legal obligations on the
Arctic States.
5. Discussion
Since the early 1990s, regional governance in the Arctic has
existed in the form of a non legally-binding regime. When the
AEPS was adopted in 1991, the impact of climate change to the
Arctic was not as dramatic as it is now in 2011. As a consequence,
the APES was not specifically designed to address this issue, nor
was the Arctic Council, as the mandate and institutional format
did not significantly change during the transformation. As climate
change brings new challenges to the Arctic, the question of
whether the present Arctic regime is adequate to confront them
is worth considering, particularly whether governance and out-
comes would benefit from the replacement of the present soft law
with a hard law regime.
Arguments for and against the existing soft law regime primarily
focus on its respective benefits and weaknesses. Suggested benefits
of a hard law regime, inter alia, include: encouraging greater political
and bureaucratic commitments; establishing firmer institutional
and financial foundations; giving legal ‘‘teeth’’ to compliance and
enforcement; and establishing dispute settlement mechanisms [7,
pp. 178–179]. In contrast, although soft law has been widely
criticized by international lawyers, it is frequently favored by
international actors because it offers many advantages over hard
law. These advantages include that soft laws can be designed with
greater flexibility; are more readily agreed to by state parties, so
more easily brought to final agreements; can be implemented more
quickly to address urgent issues; are more effective at treating
uncertainty; and are better able to bring together actors with
different interests and degrees of power [42].
5.1. The implication of the Arctic SAR agreement: a shift of the Arctic
regime to hard law basis?
In light of the aforementioned considerations, the adoption of
the Arctic SAR Agreement, a legally-binding regional instrument
among all Arctic States, is a significant outcome. Rather than
adopt a declaration, as the Arctic States had twice before, they
took a different approach to address SAR operations in response
to the increase of shipping and fly-over activities in the region.
Thus, a legally-binding instrument accepted by all Arctic States is
possible. In addition, recognizing the weaknesses of the institu-
tional arrangements of the Arctic Council, Norway, Denmark, and
Sweden have adopted common objectives and priorities for their
Arctic Council chairmanships (2006–2012), and established a
joint Secretariat in Tromsø for the period 2006–2012 [43]. These
events indicate that the current Arctic regime is changing,
potentially due to new issues that are arising as the climate
changes.
Although some will argue the Arctic SAR Agreement is not a
‘‘treaty’’ but merely a ‘‘legally-binding instrument,’’ it is undeni-
able that the Agreement does impose legal obligations on the
Arctic States no matter what its technical legal format is. As a
result, conducting SAR operations no long relies upon Arctic
States’ goodwill like other environmental issues, but becomes
 S.-M. Kao et al. / Marine Policy 36 (2012) 832–838
their compulsory obligations under the Agreement as they are
imposed under the SAR Convention and the Chicago Convention.
Therefore, the adoption of the Agreement constitutes a significant
divergence from the current soft law regime in the Arctic. It
proves that the Arctic States are willing at least on an issue-by-
issue basis to accept a legally-binding instrument, rather than
stick to non legally-binding Declarations as they have in the past,
to address new challenges in the Arctic.
Nevertheless, this conclusion does not necessarily mean that
the Arctic regime will be replaced by a legally-binding regime in
the future. As mentioned above, the Arctic Council already has
had some successes in protecting the Arctic environment that
might not have been politically possible under a hard law regime.
Nor would a hard law regime guarantee greater efficacy. In
addition, the Arctic SAR Agreement by no means replaces the
current Arctic regime because it only addresses SAR operations
and its adoption may only have been possible because all the
Arctic States were already parties to the SAR Convention and the
Chicago Convention. Making a legally-binding Agreement to
reaffirm and implement their preexisting treaty obligations in
the Arctic, without bringing any new obligations to any of the
Parties, was thus reasonable.
Interestingly, in debates related to the Arctic regime, most
scholars, such as Stokke [44], Koivurova and Vanderzwaag [7],
and Young [45], are of the opinion that a legally-binding regime is
neither necessarily needed nor suitable for the Arctic. In addition,
the Arctic Council itself has rejected all treaty proposals that have
come before it, and all changes to its institutional structure have
been firmly built on its fundamental soft law format [6, p. 153].
All of these factors suggest that a legally-binding regime is not
likely in the Arctic in the foreseeable future.
6. Conclusions
The Arctic regime, led by the AEPS and the Arctic Council and
using a soft law format, has achieved a certain degree of success
in the protection of the Arctic environment, both through scien-
tific studies of transboundary pollution and in accommodation of
indigenous peoples’ livelihood in the Arctic. However, the soft law
nature and restricted mandates of the Arctic Council have limited
its capacity to respond to new issues emerging from climate
change.
Looking forward, challenges from climate change will increase
in the Arctic due to warming and sea ice melting, particularly
those related to the exploitation of oil and gas reserves, commer-
cial shipping through the region, effects on wildlife (e.g., whales
through exposure to ship strikes and polar bears due to decrease
sea ice), and impacts on indigenous peoples’ homelands and
culture (e.g., industrialization and in-migration). Furthermore,
territorial disputes over tiny islands in the Arctic could cause
additional conflicts in the future because the possession of such
islands might have disproportionate implications for access to
resources under UNCLOS. All of these issues are beyond the
current competency of the Arctic Council. Therefore, it is reason-
able to say that some adjustment to the current Arctic regime,
particularly to its structure and mandate, will be necessary to face
these new challenges.
The adoption of the Arctic SAR Agreement represents a new
approach for the Arctic States to respond to these new challenges in
the Arctic. Based on this development, it is reasonable to expect that
consideration of additional legally-binding instruments addressing
other new issues may arise in the future. However, it does not mean
that a legally-binding instrument is necessarily preferable for every
issue; for example, the Arctic Council could consider addressing
shipping issues through the constitution of a new working group.
837
It also is still too early to tell whether the current soft law
Arctic regime will eventually be replaced by a legally-binding one.
Indeed, importantly, the Arctic SAR Agreement does not establish
new institutional relationships, suggesting satisfaction among the
Arctic States with the existing arrangements as embodied in the
Arctic Council. Thus, what is more certain, at least in the near-
term, is that the Arctic Council will continue to function as a
cooperative forum for the Arctic States to address these chal-
lenges, and its importance will only increase in coming years.
In conclusion, the Arctic regime like the global climate is at a
crossroads. The Arctic regime is undoubtedly changing, but this
change should not be treated today as a shift from soft to hard
law. How the Arctic regime will evolve to respond to new
challenges derived from climate change and retreating ice will
rely upon the political will of the Arctic States, and is worthy of
sustained attention.
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Glossary
Regime: a set of implicit or explicit principles, norms, rules, and decision-making
procedures around which actors’ expectations converge in a given area of
international relations. Principles are beliefs of fact, causation, and rectitude.
Norms are standards of behavior defined in terms of rights and obligations.
Rules are specific prescriptions or proscriptions for action. Decision-making
procedures are prevailing practices for making and implementing collective
choice. (Krasner, 1983);
Hard law: instruments with legally-binding force to its Contracting Parties,
usually a ‘‘Treaty,’’ ‘‘Convention,’’ or ‘‘Agreement.’’;
Soft law: instruments without legally-binding force, which rely on ‘‘international
norms that are deliberately non-binding in character but still have legal
relevance, located in the twilight between law and politics’’ (Skjærseth et al.,
2006), and are variously titled including declarations, memoranda of under-
standing, code of conduct, programmes, and plan of action or implementation.