Climate change is fundamentally transforming both the Arctic and Antarctic polar regions. Yet these regions differ dramatically in their governing legal regimes. For the past sixty years the Antarctic Treaty System, a traditional “hard law” international law treaty system, effectively de-militarized the Antarctic region and halted competing sovereignty claims. In contrast, the Arctic region lacks a unifying Arctic treaty and is governed by the newer “soft law” global environmental law model embodied in the Arctic Council’s collaborative work. Now climate change is challenging this model. It is transforming the geography of both polar regions, breaking away massive ice sheets in Antarctica, melting the polar ice cap in the Arctic, opening maritime trade routes, and renewing the possibility for natural resource extraction. Will the Arctic experience a peaceful future similar to its sister polar region, or will it emerge as a polar “wild west” with increasing geopolitical tension between the Arctic states? Will a new polar Cold War emerge between Russia and the other four North Atlantic Treaty Organization Arctic coastal nations? This Article addresses these questions—and others—while making three new contributions to legal scholarship. First, we closely examine the different legal models in both the Arctic and Antarctica, discerning what lessons the ATS—one of the most successful international agreements in history—can be applied to the Arctic. Second, we analyze the unique significance played by global environmental law in the context of the polar regions, best embodied by the collaborative work of the Arctic Council. Third, in light of the uncertainty posed by climate change and the potential for rising geopolitical tensions, we provide a new framework to analyze future Arctic governance to include the five key factors that will determine the Arctic’s future.
Mark P. Nevitt & Robert V. Percival, Polar Opposites: Assessing the State of Environmental Law in the World's Polar Regions, 59 B.C. L. Rev. 1655 (2018), https://lawdigitalcommons.bc.edu/bclr/vol59/iss5/4