The Arctic Council and “Law-Making”

The Arctic Council (AC) is a high-level international intergovernmental forum founded by the Ottawa Declaration of 1996. Its eight member states are Canada, the Kingdom of Denmark (including Greenland and the Faroe Islands), Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. Six organizations representing Arctic Indigenous Peoples have “Permanent Participant” status. The AC is not an international organization based on a legally binding instrument, such as a treaty. It does not have the legal personality of an international organization under international law, which would enable it to develop legislation or conclude treaties with other subjects of international law. However, although the AC is not a legislative body it has been contributing to the development of international law as it relates to the Arctic. In particular, the Arctic Council was engaged in the development and negotiation of three legally binding agreements concluded by the eight Arctic states: the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011); the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013); and the Agreement on Enhancing International Arctic Scientifi c Cooperation (2017). By looking at the “law-making” activities of the AC and, specifi cally, the agreements concluded under its aegis, this article investigates how these agreements have shaped the nature and evolution of this forum. Then the article explores the potential for further legally binding agreements negotiated under the auspices of the Arctic Council. *Natalia Loukacheva, PhD SJD, Associate Professor, Department of Political Science, University of Northern British Columbia, and from 2014 to 2019, Canada Research Chair in Aboriginal Governance and Law The Northern Review 50 (2020): 109–135 https://doi.org/10.22584/nr50.2020.005 110 The Northern Review 50 | 2020 Introduction Th e Arctic Council (AC) is an intergovernmental forum that—despite the growing infl uence of non-state actors and sub-regional entities in Arctic developments and cooperation—is very much based on the premise of sovereignty and stateto-state relations of the eight Arctic states that are the AC’s member states: Canada, the Kingdom of Denmark including Greenland and the Faroe Islands, Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. Nonetheless, the council’s structure also includes six organizations representing Arctic Indigenous Peoples as its founding members (“Permanent Participants”). Th e AC attempts to respect the interests of the permanent participants and empower their participation in its endeavours. For example, the Álgu Fund was endorsed by the AC in 2017 to help Indigenous Peoples’ participation in the AC’s activities.1 Permanent participants are consulted on a variety of issues,2 but they do not have voting rights and decisions are made on a consensus basis by the eight Arctic states.3 Th e Arctic Council has evolved since its inception as a forum and it has arguably been gradually moving towards becoming a full-fl edged international organization under international law.4 For example, its permanent secretariat was established in Tromsø in 2013. Furthermore, the “Host Country Agreement between the Government of the Kingdom of Norway and the Arctic Council Secretariat on the legal status of the Secretariat and the privileges and immunities of the Secretariat and its staff members” was signed in January 2013. It defi nes that the “Secretariat has legal personality and capacity to perform its functions in Norway.”5 Although the signing of such an agreement does not change the legal status of the AC itself, this is arguably another indicator of the AC’s possible evolution towards an international organization under international law.6 Another example of this trend is establishment, although on a trial basis, of a Project Support Instrument, a collective fund to fi nance the AC projects. Despite ongoing evolution, by its legal nature the AC is a high-level international intergovernmental forum rooted in the Ottawa Declaration of 1996. It was enacted this way to ensure that its legal personality would not be separate from the legal personality of the eight Arctic member states.7 Th us, by its legal structure, the AC is not an international organization based on a legally binding instrument such as a treaty. It does not have the legal personality of an international organization under international law, which would enable it to develop legislation or conclude treaties with other subjects of international law.8 Th e Arctic Council has no legislative authority and cannot adopt regulations, nor enforce or implement them. However, according to Oran Young, the lack


Introduction
Th e Arctic Council (AC) is an intergovernmental forum that-despite the growing infl uence of non-state actors and sub-regional entities in Arctic developments and cooperation-is very much based on the premise of sovereignty and stateto-state relations of the eight Arctic states that are the AC's member states: Canada, the Kingdom of Denmark including Greenland and the Faroe Islands, Finland, Iceland, Norway, Russian Federation, Sweden, and the United States. Nonetheless, the council's structure also includes six organizations representing Arctic Indigenous Peoples as its founding members ("Permanent Participants"). Th e AC attempts to respect the interests of the permanent participants and empower their participation in its endeavours. For example, the Álgu Fund was endorsed by the AC in 2017 to help Indigenous Peoples' participation in the AC's activities. 1 Permanent participants are consulted on a variety of issues, 2 but they do not have voting rights and decisions are made on a consensus basis by the eight Arctic states. 3 Th e Arctic Council has evolved since its inception as a forum and it has arguably been gradually moving towards becoming a full-fl edged international organization under international law. 4 For example, its permanent secretariat was established in Tromsø in 2013. Furthermore, the "Host Country Agreement between the Government of the Kingdom of Norway and the Arctic Council Secretariat on the legal status of the Secretariat and the privileges and immunities of the Secretariat and its staff members" was signed in January 2013. It defi nes that the "Secretariat has legal personality and capacity to perform its functions in Norway." 5 Although the signing of such an agreement does not change the legal status of the AC itself, this is arguably another indicator of the AC's possible evolution towards an international organization under international law. 6 Another example of this trend is establishment, although on a trial basis, of a Project Support Instrument, a collective fund to fi nance the AC projects.
Despite ongoing evolution, by its legal nature the AC is a high-level international intergovernmental forum rooted in the Ottawa Declaration of 1996. It was enacted this way to ensure that its legal personality would not be separate from the legal personality of the eight Arctic member states. 7 Th us, by its legal structure, the AC is not an international organization based on a legally binding instrument such as a treaty. It does not have the legal personality of an international organization under international law, which would enable it to develop legislation or conclude treaties with other subjects of international law. 8 Th e Arctic Council has no legislative authority and cannot adopt regulations, nor enforce or implement them. However, according to Oran Young, the lack of the AC's authority to make legally binding decisions does not serve as an impediment "to the council's performance of the role of the integrator" in the region, 9 as the informal nature of the AC "lowers legal and political barriers to making institutional adjustments." 10 Presently, the AC is able to provide leadership in the processes that lead or may lead to regulatory instruments. Without being a "legislative body," the AC has been a de facto contributor to the advancement of international law as it relates to the Arctic. More specifi cally, the AC has been engaged in the elaboration and negotiation of three legally binding agreements that have been completed Th ere are various aspects and dimensions of the AC's law-making activities, but this article focuses specifi cally on examining the above mentioned agreements, and looks into how they have shaped the nature and evolution of the forum. Th en the article explores whether there is room for further legally-binding agreements under the aegis of the AC. It is argued that despite the AC's mandate and legal personality, it played a key role in bringing these regional agreements to life and has made a valuable contribution to the development of international legal instruments and practices related to the Arctic.
Despite criticism pointed at the Arctic Council and all kinds of structural and organizational limitations, 11 the AC has been very successful in many initiatives. It is, indeed, a prominent actor in Arctic cooperation and policy-making. What role does it have to play, if any, in law-making with respect to the Arctic? Th e next section explores the general aspects of the AC's law-making initiatives.

"Law-Making" under the Auspices of the Arctic Council
Th e Arctic Council deals with international cooperation at several levels. As per its mandate, it works with a broad scope of issues primarily associated with sustainable development and environmental protection. 12 All those levels and issues are subjects of diff erent regulatory frameworks of either international law or domestic legislation of the eight Arctic states, including laws of the Arctic Indigenous Peoples and, in some cases, legislative practices of non-Arctic states relating to specifi c Arctic matters.
Since its inception, the AC has been evolving and broadening the scope of its activities within its mandate in order to address matters of common responsibility and concern in the region. In its evolution, the AC has also engaged with initiatives and activities that contribute to the buildup of international law. Why did it engage in such activities and in what form?
Over the years, the law-making activities of the Arctic Council have taken several dimensions. One such activity has been the development of "soft-law" instruments that are not legally binding but contribute to legal practices in the international sphere. 13 From the outset, the AC has issued declarations at the ministerial meeting held at the end of each member state's two-year chairmanship (except at the May 2019 meeting in Rovaniemi). Th ese declarations have outlined the strategic vision and recommendations for further initiatives and actions, as well as established, where appropriate, additional working bodies for particular projects. Th ose political declarations have contributed to the expansion of soft-law practices in the Arctic. Being non-legally binding documents, they allow fl exibility and are able to address the most topical questions in a timely fashion. In May 2019, for the fi rst time in the history of the AC, a ministerial declaration was not issued and this was mainly for political reasons (the US position on climate change). Instead, the usual declaration was "replaced" with the Rovaniemi Joint Ministerial Statement 2019 and the Chair's statement summarizing all items discussed at the meeting. 14 Th is statement presents yet another form of the AC's soft-law documents.
Th e Arctic Council has also been engaged in working out other regulatory documents that have contributed to the elaboration of legal frameworks. By producing scientifi c assessments and recommendations, and by monitoring through its working groups and other bodies, the AC has facilitated the development of non-legally binding but normative instruments such as the following: •  15 Th ese instruments are intended to help with harmonizing domestic legislation in the Arctic states, but 113 Loukacheva | The Arctic Council they do not always achieve that due to lack of their application in practice. Th ese soft-law activities of the AC infl uence national processes, but there is a question of their implementation. 16 Another important aspect of the AC's work in this fi eld is linked to global infl uence and bringing the Arctic voice to international regulatory negotiations and processes (e.g., the scientifi c assessments of the AC's working groups). Th us, the Arctic Council has been infl uential in several legal developments that led to the negotiation of global treaties.
Th e AC played a key role in generating scientifi c knowledge on the Arctic that has been vital for policy-making and has infl uenced negotiations of environmental treaties. 17 Th e council has contributed to the negotiations of the Stockholm Convention on Persistent Organic Pollutants (2001) and its subsequent implementation. 18 Th e AC's work-especially through its Arctic Monitoring and Assessment Program (AMAP)-contributed to the processes leading to the negotiations of the United Nations Environment Program's (UNEP) Minamata Convention on Mercury (2013). Th e Arctic Monitoring and Assessment Program has served as a science broker on the road towards the adoption of this convention. 19 Th ese are notable examples of the Arctic Council's international infl uence though relevant AMAP assessments. In addition, the AC has cooperated on the implementation of these treaties. 20 Th e Arctic Council also helped to bring Arctic biodiversity to the attention of the United Nations Convention on Biological Diversity (1992), which, with its release in 2013 of the Arctic Biodiversity Assessment, has started to recognize Arctic biodiversity as an emerging issue. 21 Moreover, by sponsoring climate science research and producing Arctic climate change relevant assessments and reports, 22 the AC has been able to infl uence international policy-making in this area and serve as a vehicle for cooperation. 23 In 2015 the AC was engaged in the Conference of the Parties (COP21) to the UN Framework Convention on Climate Change, which led to the Paris Agreement on climate change-the implementation of which the AC also supported although the United States withdrew from the agreement in 2017. 24 Interestingly, starting with the Tromsø Declaration of 2009, the AC has placed special emphasis on active cooperation with the International Maritime Organization (IMO) "on development of relevant measures to reduce the environmental impacts of shipping in Arctic waters"-the future "International Code for Ships Operating in Polar Waters" or Polar Code. 25 Th e IMO's Secretary-General was invited to the meetings of the Senior Arctic Offi cials of the Arctic Council with regards to this cooperation in 2014 and 2016. 26 Th e decision to negotiate the mandatory IMO Polar Code (2017), was substantially shaped by the AC's Arctic Marine Shipping Assessment. 27 More recently, the AC has reaffi rmed the UN's sustainable development goals and the need for their realization by 2030. 28 In 2018 the fi ve Arctic Ocean coastal states (Canada, Norway, Russia, the United States, and Denmark in respect of the Faroe Islands and Greenland)-the Arctic 5-plus Iceland, China, the European Union, Japan, and South Korea, signed an Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. 29 Although the AC chose not to be involved in the negotiations of this legally binding regional fi sheries agreement, it has been supportive of this pivotal development. More cooperation is expected to take place between the AC and the so-called Arctic 5+5 on the implementation of this instrument, which adopts a precautionary approach to fi sheries management and conservation in the central part of the Arctic Ocean. 30 Th ere are diff erent views on the role of the AC in international law-making. For example, Molenaar has suggested the concept of an Arctic Council System (ACS), which in his view helps to explain how the AC gets involved in regulatory activities without having direct competence to do that. Th e Arctic Council System includes the Council's constitutive instrument (i.e., the Ottawa Declaration); other Ministerial Declarations; other instruments adopted by the Arctic Council-for instance, its Arctic Off shore Oil and Gas Guidelines-and the Council's institutional structure. Th e second component consists of instruments negotiated under the council's auspices-but not adopted by it-and their institutional dimension. 31 Accordingly, this "two-tiered approach of negotiating (non-) legally binding international instruments" under the aegis of the council supports the ACS and strengthens the council as such. 32 Th is approach is palatable with the Arctic states.
Another authority has looked at how the AC, although not an international organization in the traditional sense of international law, has served as a vehicle for the development of international law in a number of ways. For example, it has done so through examining the adequacy of existing international agreements, and serving as a forum for treaty negotiations via its task forces. 33 Importantly, the Arctic Council has been an instrumental player in several initiatives and forums related to the Arctic. Such initiatives were endorsed by the AC in its eff orts to address the gaps of knowledge or to enhance diff erent types of cooperation beyond the AC's framework. But both directly and indirectly, these initiatives often serve as an additional vehicle to support the implementation of the agreements negotiated under the auspices of the AC, its guidelines, and even global legal instruments. 115

Loukacheva | The Arctic Council
Notable examples of such forums include the following: • Th e Arctic Economic Council (AEC) was launched in 2014 under the Canadian Chairmanship as a result of the AC's Task Force to Facilitate the Circumpolar Business Forum. Th e AEC is an independent organization that facilitates business-to-business contacts and fi lls in the gap due to the lack of business voice and perspective in the work of the AC (https://arcticeconomiccouncil.org). Further cooperation between the AC and the AEC is facilitated through a 2019 Memorandum of Understanding between these entities. 34 • In 2015 the Arctic Coast Guard Forum (ACGF) came into being as an independent informal organization whose chairmanship rotates every two years in concert with rotation of the AC chairmanship. A part of its mandate is to collaborate with the AC through information sharing. 35 Activities of the ACGF support the implementation of the 2011 Search and Rescue Agreement and the 2013 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic. 36 • Also in 2015, the Arctic Off shore Regulators Forum (AORF) was initiated by the AC to exchange information and share best practices related to development of petroleum resources in the Arctic. One of the AORF's objectives is to further the recommendations of the AC's Task Force on Arctic Marine Oil Pollution Prevention "to enhance the capacity of Arctic off shore petroleum safety regulators to prevent marine oil pollution through regular exchanges of knowledge and experience." 37 Th e forum can cooperate with the AC as appropriate. 38 Composition of its management committee and chairmanship are also linked to the change in the AC chairmanship (Art. 2(a) and Art. V(1)(c)). 39 • In 2017, after entry into force of the IMO's mandatory Polar Code, the Arctic Shipping Best Practices Information Forum was endorsed by the AC. 40 Th e forum's terms of reference were approved by the AC's Protection of Arctic Marine Environment (PAME) Working Group. Th e newly created forum, which also includes an online portal, aims to raise awareness of the Polar Code provisions and to promote its implementation (www.pame.is).
All these forums, although established as independent bodies, have various degrees of integration with the AC's work and, arguably, form the part of Molenaar's Arctic Council System 41 that includes "regulatory" activities under the auspices of the AC.

116
The Northern Review 50 | 2020 Evidently, the most vital dimension of the AC's involvement in law-making deals with the negotiation of legally binding agreements under the aegis of the AC. How did these agreements come into being?

Th e Arctic Council and Regional Legally Binding Agreements
Growing scholarship on the structure of the Arctic Council, and the legal and political nature of the negotiated agreements and their implementation, points to the increasing role of the AC in international law-making. 42 Th is scholarship has already highlighted historical and contemporary initiatives of the AC and its working groups. It has touched upon examination of existing international law conventions and agreements relating to the Arctic with respect to issues of environmental protection, sustainable development, Law of the Sea, and the IMO's Polar Code. 43 Before the creation in 2009 of the fi rst task force, which led to the fi rst legally binding agreement on Arctic Search and Rescue (SAR) in 2011, the AC had already been involved in activities that infl uenced international law-making. But why did the AC move to the negotiation of such agreements under its auspices?
Arguably, this development was partially provoked by external events that have aff ected the state of Arctic aff airs. In May 2008 at the ministerial meeting in Ilulissat, Greenland, foreign aff airs ministers of the fi ve Arctic Ocean coastal states signed a landmark declaration. Th e Ilulissat Declaration emphasized that, in their view, the existing international law of the sea (United Nations Convention on the Law of the Sea, UNCLOS) and other international legal frameworks were suffi cient to deal with the state of Arctic aff airs, and that no other legally-binding Arctic treaty or constitution was needed. 44 Th is political declaration provoked mixed reactions from the other Arctic states and especially Iceland, which was not invited to the club of the so-called Arctic 5. 45 But later, the Arctic Council also endorsed the Ilulissat Declaration and particularly the point rejecting any Arctic treaty proposals. 46 However, this declaration also signalled that specifi c issues could be resolved on the basis of current international law or separate legally binding instruments that could be negotiated if needed such as, for example, subsequent agreements concluded under the aegis of the AC.
In light of the rapidly changing geopolitical reality and environmental changes (e.g., more international and Arctic attention was directed to the growing problems of climate change and new threats and challenges), the Arctic Council had to reconsider its capacity as a regional leader. Measures had to be taken to strengthen the AC's role both within and outside the Arctic Rim. One avenue for doing that, coinciding with further reform of the AC, was the work of its task forces, which were formed to conduct specifi c research and report with recommendations for further actions. Th e format of the work of each task force was predetermined by the real need to address certain issues.
After 2009, by creating special task forces that de facto shaped the content and structure of agreements, the AC became engaged in development and negotiations of regional legally binding agreements by the eight Arctic states. Th e Tromsø Declaration (2009) endorsed the launch of the task force and subsequent negotiation of "an international instrument on cooperation on search and rescue operations in the Arctic." 47 Importantly, the impetus to negotiate this agreement is rooted in the AC's Arctic Marine Shipping Assessment 2009 Report, 48 which recommended the development of the Arctic Search and Rescue (SAR) instrument among the eight Arctic states and "if appropriate, with other interested parties in recognition of the remoteness and limited resources in the region." 49 Th is SAR task force was co-chaired by the United States and the Russian Federation. It completed its work with the draft agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (SAR Agreement) in 2010. Th e SAR Agreement was approved and signed at the AC ministerial meeting in Nuuk,Greenland in May 2011, and came into force in January 2013. Th e Government of Canada became the agreement's depository. 50 Th e Task Force on Arctic Marine Oil Pollution Preparedness and Response was also launched at the Nuuk ministerial meeting in 2011, with the mandate to develop an international instrument dealing with these matters. Th is was subsequently converted into the development of a legally binding instrument. Th is task force was co-chaired by the United States, the Russian Federation, and Norway. Th e Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic was signed at the ministerial meeting in Kiruna, Sweden in May 2013. It entered into force in March 2016. Th e Government of Norway is designated as its depository. 51 With conclusion of this agreement, the work of the AC's Emergency Prevention, Preparedness, and Response Working Group (EPPR) was not fi nished, and in 2013 a new task force to develop an Arctic Council plan or other arrangement on oil pollution prevention was established. 52 By the time of its reporting at the ministerial meeting in Iqaluit, Canada, in 2015, the "Framework Plan for Cooperation on Prevention of Oil Pollution from Petroleum and Maritime Activities in the Marine Areas in the Arctic" was welcomed, together with several relevant reports (e.g., the "Guide to Oil Spill Response in Snow and Ice Conditions in the Arctic"; the "Arctic Off shore Oil and Gas Guidelines: Systems Safety Management"; and the Safety Culture report). 53 Th e implementation of this framework plan has been monitored by the EPPR. 54 But these developments did not lead to negotiations of a new agreement on prevention of marine oil spills. After preliminary exploration of the issue of oil spill prevention, the AC decided to refrain from any legally binding arrangements in this area: "As it was much more diffi cult to fi nd a common ground to agree on limitations of oil production policies and technical standards of industrial producers and transport carriers of oil." 55 In other words, the AC decided not to "dwell" on regulatory complexities and other limitations posed by the subject of oil spill prevention, and the idea of any legally binding agreement on that subject was dismissed.
At the same time, the Kiruna Declaration of 2013 heralded the launch of a task force "to work towards an arrangement on improved scientifi c research cooperation among the eight Arctic States." 56 While Canada was Chair of the AC this work was extended and the task force was further mandated to "work towards a legally-binding agreement on scientifi c cooperation." 57 Th e task force was co-chaired by the Russian Federation and the United States with Sweden as a co-chair at the beginning. 58 Th e Agreement on Enhancing International Arctic Scientifi c Cooperation was signed in Fairbanks, United States, in May 2017, and came into force in May 2018. Th e Government of Denmark is the depository for this agreement (Arctic Science Agreement).
Th e preparatory work, meeting documents, and all other relevant documents that led to the development of those agreements are available on the Arctic Council's website (https://arctic-council.org). As mentioned, there is a growing number of commentators explaining those developments and agreements from diff erent legal, political, and international standpoints. Th erefore, this article is focused on investigating how these agreements have shaped the nature and evolution of the AC.

Agreements and the Arctic Council's "Law-Making"
All three agreements referred to above-the Agreement on Cooperation In that sense, the marine oil pollution agreement reaffi rmed commitments of the Arctic states to global treaties with a special focus on the Arctic. Notably, prior to this, the AC produced several assessments and reports that tackled Arctic oil and gas exploration, risk management, safety, and environmental concerns, but these documents "did not have any practical consequences in policy implementation terms," which led to the initiative to do something concrete. 61 Compared to the 2011 search and rescue and the 2013 marine oil pollution agreements, the Arctic Science Agreement did not have a broad base of international law instruments dealing with science, which it could refer to. Th e agreement aims to enhance scientifi c cooperation in the Arctic (Art. 2) by reaffi rming it through legally binding measures. Furthermore, the agreement takes into full account the provisions of UNCLOS in "Part XIII on marine scientifi c research as they relate to promoting and facilitating the development and conduct of marine scientifi c research for peaceful purposes" (the Preamble). Th e agreement pays special credit to existing scientifi c cooperation and the organizations dealing with global, polar, and specifi c Arctic issues.
All three agreements have a legal structure similar to a treaty and similar procedural provisions (e.g., settlement of disputes and amendments procedures). 62 Similar to the Search and Rescue (SAR) and Arctic Marine Oil Pollution agreements, parties to the Arctic Science Agreement are the eight Arctic states (the Preamble). However, recognizing that scientifi c cooperation may include non-Arctic actors, cooperation with non-parties with regard to Arctic science is elaborated in Article 17. Similarly, the SAR agreement has a clause on cooperation with non-parties in which other than Arctic states can be invited "to contribute to the conduct of search and rescue operations, consistent with existing international agreements" (Art. 18).
Th e topic of non-Arctic state participation in the development of the Arctic Science Agreement received a lot of discussion; especially due to the fact that the agreement does not have an accession clause. 63 Nevertheless, despite their lack of decision-making power, non-Arctic states and other relevant organizations, such as the International Arctic Science Committee (IASC), were involved in the discussions of the Task Force for Enhancing Scientifi c Cooperation in the Arctic. Furthermore, the benefi ts of the Arctic Science Agreement to non-Arctic states can be extended to activities held by non-Arctic states and their scientists, or by bilateral science and technology cooperation agreements concluded by non-Arctic states with the Arctic states. 64 Similarly, the question of participation of non-Arctic states in the negotiations of the SAR Agreement and the Agreement on Arctic Marine Oil Pollution was rather diffi cult. Th e Arctic states did not regard negotiations on those agreements as meetings of the AC-thus, Nuuk observer rules, which were incorporated into the AC's rules of procedure, did not apply. 65 Th is suggests that there was no obligation to invite observers to the negotiation table. Compared to the 2011 and 2013 agreements, all categories of observers and several non-Arctic states took an active part in the negotiations of the 2017 Arctic Science Agreement. Th is "broader" participation can partially be explained by greater inclusiveness and transparency within the AC itself 66 and recognition of the fact that Arctic science can be conducted outside the region by non-Arctic actors. 67 Similar questions were raised with regard to Permanent Participants' involvement in the negotiations of all three agreements. PPs are not parties to those agreements as traditionally, under the international law of treaties, they cannot be parties to treaties. 68 Th e PPs were invited to take part in all rounds of the SAR Task Force talks but were not able to attend. 69 Some have suggested that they did not participate in the negotiations of the SAR agreement because of "the lack of expertise and resources." 70 Th e PPs were invited and took an active part in the negotiations of the marine oil pollution agreement. 71 Th ey also took an active part in the negotiations of the Arctic science agreement.
In terms of structure, the SAR Agreement's annex forms its integral part (Art. 13) but it can be amended according to the special rules (Art. 15). Th e Agreement on Arctic Marine Oil Pollution contains several appendices that are not legally binding and that can be modifi ed at meetings of the parties (Art. 20, except special rules for appendices in Art. 5). Notably, Appendix IV, Operational Guidelines of the agreement, was designed for practitioners as a "living document" and are intended to help with the implementation of the agreement. 72 Annex 1 of the Arctic Science Agreement, which deals with "Identifi ed Geographic Areas," forms an integral part of the agreement and is legally binding; Annex 2, which deals with authorities and contact points, is not and can be modifi ed. Additional non-binding annexes can be developed by the parties in the future (Art. 14, with ref. to Arts. 1, 13, and 12). Similar to the marine oil pollution agreement, the Arctic Science Agreement combined both approaches: mandatory and nonlegally binding appendices.
One specifi c feature of the Arctic Science Agreement, compared to the two previous agreements, is that its Article 9 includes provisions on traditional and local knowledge in the conduct of Arctic scientifi c activities. Th e idea is that Indigenous knowledge should be appropriately respected and, under this agreement, its holders are invited to communicate with participants of scientifi c activities and take part in those activities.
Interestingly, the Inuit Circumpolar Council-a major non-governmental organization representing the Inuit of the Russian Federation (Chukotka); Denmark (Greenland); the United States (Alaska); and Canada (Inuvialuit, Nunatsiavut, Nunavik, and Nunavut)-has called for "an Inuit review of the consultation process of the Arctic Council Arctic Science Cooperation Agreement." 73 Th ey want to ensure that this legal instrument adheres to the human rights affi rmed in the United Nations Declaration on the Rights of Indigenous Peoples. 74 Indeed, the question of protecting Indigenous Peoples' rights in the conduct of scientifi c research, intellectual property rights, cultural rights, and knowledge holders' involvement in any sort of research activities, is of the utmost sensitivity to Arctic Indigenous Peoples. Th us, the implementation of the Arctic Science Agreement requires full consideration of those rights.
All three agreements have political and practical signifi cance. Th e SAR agreement was the fi rst-ever pan-regional legally binding agreement concluded by all eight Arctic states. (Th e 1973 Agreement on the Conservation of Polar Bears and their Habitat was concluded by fi ve Arctic nations that had polar bear populations.) 75 In that sense, conclusion of the SAR agreement was of historical value. It has shown the ability of all Arctic states to combine their eff orts in dealing with the most pressing challenges, such as the need for better search and rescue capacity in the region in light of new realities posed by environmental issues such as climate change; increased human activities (tourism, shipping); and growing exploration of resources in the area. Th e SAR also indicated the high level of trust and collaboration within the AC, which was able to serve as a platform for its development. Furthermore, the Arctic SAR Agreement was a clear indicator of the willingness of the Arctic states to develop a legally binding instrument for topical areas of concern in the Arctic rather than one common Arctic treaty. Th is confi rmed the ongoing trend to address the most pressing Arctic matters with an issue-based approach, and to develop relevant legally binding measures. 76 Some argue that the SAR Agreement is "primarily a political document" and can serve as a platform for the exercise of "defence diplomacy" by the AC member states. 77 Th e agreement provides a political framework to cooperate in what was already possible legally (e.g., an opportunity for collaboration between the militaries and coast guards of the Arctic states and a recognition of the fact that Arctic states share similar threats posed by the particularities of the region). 78 According to the co-chair of the AC's task force on SAR, Dr. Anton Vasiliev, "the main political value of the Agreement comes from the fact that it is the fi rst ever legally binding document elaborated under the aegis of the Arctic Council." 79 And "it is the manifestation of the new level of trust and cooperation in the Arctic" 80 as it improves coordination and collaboration eff orts among defence and civilian authorities engaged in search and rescue. Th e agreement laid down "the ground-breaking precedent of a legally-binding decision taken by the Arctic Council," 81 as previously all "products" of the AC were limited to non-mandatory recommendations, declarations, and so on. It has also become an intellectual and political foundation for further agreements of this kind. 82 Th e practical and political value of the Agreement on Arctic Marine Oil Pollution is in providing a safety net for further development of off shore oil production and maritime transportation in the Arctic 83 and development of eff ective responsive measures, and bi-national and multinational contingency plans, training, and exercises. 84 Both agreements of 2011 and 2013 have signifi ed a new chapter for legal developments in the Arctic. Th ey have shown that the AC has evolved from its advisory mandate into a more infl uential body that is able to react to the most pressing issues in the region both in political and practical terms. While "remaining a 'soft-law' body, the council has 'moved' to the use of 'hard-law' instruments on issues of relevance to both the circumpolar region and to the international community more generally." 85 Although rooted in global treaties, to which the Arctic states were already parties, these agreements have enabled Arctic-specifi c implementation measures and thus advanced the Arctic governance framework through responsible approaches (i.e., legally binding agreements "that clearly added value to the region"). 86 Both agreements signifi ed progress in the institution building process of the AC, served as a bridge between science and policy, and improved the position of the AC in the regional governance framework. 87 Th e Arctic Science Agreement is also of political and practical value. In the words of the US co-chair of the Scientifi c Cooperation Task Force, Evan T. Bloom, the conclusion of this agreement signifi es another step in the direction of the AC's "involvement in the establishment of legal norms and activities of the regulatory character." 88 Some commentators have explored how the Arctic Science Agreement may improve the legal environment for Arctic scientifi c research beyond existing international law instruments and they have looked at the structure of this agreement from an international law perspective. 89 Shibata concludes that the agreement "sets a new model for Arctic international law-making within the Arctic Council" since for the fi rst time the AC was dealing with a treaty-making exercise that had to include interests of non-Arctic states and their scientists involved in the conduct of Arctic scientifi c research. 90 Furthermore, compared to the other two agreements where a strictly limited geographical scope was prescribed, this agreement addresses a matter of universal signifi cance-"the development of scientifi c knowledge about the Arctic" (Art. 2). 91 Compared to the previous two agreements, the Arctic Science Agreement is arguably the least concrete. It is a sort of "declaration of intent" in which the Arctic states agree to enhance cooperation in the area of scientifi c activities, but they can do so only if relevant resources are available. 92 At the same time, being a legally binding document in a broad sense, this agreement does not off er any new norms for decision making concerning scientifi c cooperation. In a sense, it is just a commitment of the Arctic states to expand collaboration in this fi eld. Th is document symbolizes the good will of Arctic states and particularly the consensus between the United States and the Russian Federation on this subject.
Despite its mandatory nature, this agreement is of a "soft" character as it does not create any new norms and is based on the existing scientifi c cooperation. Th us, of the three agreements concluded under the auspices of the AC, the science agreement is the most vulnerable to changing geopolitical contexts. Th e implementation of this agreement will depend on the willingness of all parties and non-parties to "increase eff ectiveness and effi ciency in the development of scientifi c knowledge about the Arctic." 93 Nevertheless, the agreement's political value can be seen in the fact that it propels science diplomacy in the Arctic. 94 Th e implementation and dispute settlement of the 2011 and 2013 agreements are arranged mainly through the meetings of the parties, which are held either on a regular basis (SAR Agreement, Art. 10) or in the case of the Arctic Marine Oil Pollution agreement, by decision of the parties-notably, "Parties may elect to convene such meetings in conjunction with meetings of the Arctic Council," 95 plus the parties communicate with their competent national authorities regarding operational issues related to the implementation of the agreement. 96 In practice, implementation of both agreements has been realized mostly via table-top exercises. Th e fi rst table-top exercise on the SAR Agreement was among search and rescue agencies of the AC members and was organized by Canada and held in Whitehorse, Yukon in 2011. 97 Th e Emergency Prevention Preparedness and Response Working Group (EPPR) of the AC-led exercises for the marine oil pollution agreement took place in 2014, 2016, and 2018. 98 Th e planning of the 2018 exercise "was shared between the country with Arctic Council chairmanship and the MER EG" 99 (MER EG is the Marine Environmental Response Experts Group created by the EPPR in 2016 to promote the implementation of the EPPR's activities related to the marine oil pollution agreement).
In the case of the Arctic Science Agreement, there are certain constraints to its implementation since "each Party shall bear its own costs deriving from its implementation of this Agreement" and "Implementation of this Agreement shall be subject to the availability of relevant resources" (Art. 11). Th e parties were convened by Denmark (the depository) in May 2019-one year after the agreement's entry into force; and from then on, as decided by the parties, they may have such meetings in conjunction with the meetings of the AC, and invite Permanent Participants and "Arctic Council Observers to observe and provide information" (Art. 12). At such meetings, the parties consider the implementation of this agreement and improve its eff ectiveness and implementation by taking into account all obstacles and successes (Art. 12 (2)). Th us, the fact that meetings of the parties for the implementation of both the Arctic marine oil pollution and Arctic Science agreements can be synchronized with the meetings of the AC, points again to the institutional link with AC.
It can be concluded that the Arctic Council played the key role in bringing regional agreements to life and to their subsequent implementation. It did so in a number of ways, such as: • serving as an initiator of these documents; • providing a platform for their negotiations by creating special task forces, inviting proper experts, exercising control and monitoring, and reporting on progress to the ministers of the Arctic states; • and being a driving force in the de facto drafting of these agreements, which were adopted by the Arctic member states based on the work conducted by the AC's structures; the AC served as a legislator without de jure (by right) having this capacity.

Future "Law-Making"?
Given the broad scope of the AC's involvement in the processes that led to regulatory instruments, it is logical to consider whether there is room for further legally binding instruments under the auspices of the AC? Th is section outlines some ideas and leaves room for further research that is beyond the scope of this article.
Th e Finnish Chairmanship of the AC 2017-2019 did not instigate projects that led to the negotiation of such instruments. 100 Th e Icelandic Chairmanship program of 2019-2021 has also not indicated an intent for new agreements of that kind. 101 But this may change in light of shifting Arctic realities and spectacular changes at all levels in the North.

Is Th ere a Necessity for New Agreements?
Politically, new agreements may emerge as a result of the will of Arctic states to show their important positions in the region vis-à-vis the growing number of other global actors and interests. Th us, political will and practical necessity for a new agreement may initiate such developments in areas where a legally binding agreement can be the best and most eff ective solution for a problem. Arguably, in light of current geopolitical realities, this kind of initiative shall imply a US-Russian mutual understanding or agreement before any negotiations could take place; a lot will depend on the interest and political will of these and other Arctic states to consider new agreements relating to the Arctic.

Which Topics Might Have Practical Interest?
Growing shipping and usage of both the Northern Sea Route and the Northwest Passage may invite further discussions on ecological safety and environmental protection. In May 2019 the International Maritime Organization was granted observer status in the Arctic Council. 102 Th is suggests further collaboration between the AC and the IMO but does not mean that the AC would deal with the regulation of shipping. Any further initiatives of the AC in this area will depend on the political will of its member states.
One more area is further cooperation on the elimination of oil spills-such as the work that was initiated by the AC in 2013 but which has not yet led to any legally binding measures. And another area is business safety-for example, arrangements with the Russian Federation on the use of icebreaker fees.
Should the AC be involved with or serve as a guarantor for the continental shelf arrangement-a formal Canada-Russia-Denmark agreement on the delineation of the shelf in the overlapping claims zone in the Central Arctic Ocean-with other Arctic states respecting the deal? For example, in the future, if needed, those three countries could initiate the AC's body to deal with transborder use of the Central Arctic Ocean fl oor and underground resources.

Potential Topics for New Agreements
Depending on the priorities of the Arctic Council Chair, there could be room for the initiation of negotiations on new agreements in the future. Th ere are several areas where the AC could take leadership over time, and move towards engagement in or development of some mandatory regulatory frameworks. One possible area for a legally binding instrument is an agreement that would deal with marine litter and plastic. Th e AC's PAME working group has already been working on the project and a regional action plan to deal with marine litter pollution including microplastics. According to some surveys, billions of plastic items are fl oating in the Arctic waters. 103 Off shore resource exploration and exploitation are also a source of plastic pollution that have impacts on human health and ecosystems.
From the outset, the AC has been involved in issues dealing with marine litter (e.g., the Regional Program of Action for the Protection of the Arctic Marine Environment from Land-Based Activities, 1998; the Arctic Marine Strategic Plan was adopted in 2004; and the 1998 program was revised in 2009).
Concerned by the growing accumulation of marine litter in the Arctic and impacts on Arctic communities and the environment, in 2017 the AC decided "to assess the scope of the problem and contribute to its prevention and reduction, and also to continue eff orts to address the growing concerns relating to the increasing levels of microplastics in the Arctic and potential eff ects on ecosystems and human health." 104 Existing legal instruments provide a fragmented approach that does not address marine litter and microplastics. 105 Today, there is no single legally binding agreement or governing body to deal with plastic or microplastics.
Global instruments exist to protect biodiversity, manage hazardous chemicals and waste, and prevent pollution of the marine environment from ocean sources and, to a lesser degree, land based sources of pollution. Some applicable measures are weakly distributed amongst these global instruments, but the reduction of marine plastic litter and microplastics is not a primary objective of any. 106 To tackle this gap, an Arctic agreement on this issue could be considered and the AC would be the right venue to initiate this type of work.
Furthermore, there are ongoing discussions on the need for regulation of the Marine Protected Areas (MPAs) in the High Arctic-namely, areas beyond national jurisdiction (ABNJ), i.e., beyond the Exclusive Economic Zones of any state. In 2015 the AC initiated a Framework for a Pan-Arctic Network of Marine Protected Areas 107 but this applies only to the sovereign borders of the Arctic nations. Although existing international law (e.g., UNCLOS and the UN's Convention on Biological Diversity) allow for the creation of the High Arctic marine protected area, some commentators suggest a regional agreement on MPAs in the ABNJ would be the most effi cient legal instrument in dealing with this matter, and the Arctic Council could play a leading role in this. 108 Accordingly, "though no regional sea management organization exists within the Arctic, the Arctic Council might serve as a venue for the creation of similar regional organizations to facilitate MPA creation within an ABNJ." 109 But this instrument would be mandatory for all Arctic states and other parties that decide to accede to this treaty, plus a regional legal instrument of that kind could be "more politically expedient compared to a UNCBD [United Nations Convention on Biological Diversity] additional protocol or an UNCLOS [Law of the Sea] implementing agreement." 110 One more topical area for a potential legally-binding regional agreement, is the prevention and elimination of natural forest fi res across the Circumpolar North. Th is subject seems to be an area of growing concern in the Arctic, especially among some Indigenous groups (i.e., Saami reindeer herders).

Conclusion
Th e negotiations, under the auspices of the Arctic Council, of the legally binding agreements point to the AC's ability to respond to current and emerging challenges. Th is practice also shows that all Arctic states are able to consolidate their eff orts on the AC's platform in addressing the most pressing issues. Decisions of the Arctic Council are subject to consensus of all eight Arctic states. 111 Th us, any of the eight members could block unacceptable proposals (e.g., the United States blocked the AC's declaration at the ministerial meeting in Rovaniemi because of the US position on climate change). 112 During negotiations of those documents, all disagreements were clarifi ed in the course of preparations. At the end, all three agreements were endorsed by the AC, which by virtue of its task forces performed "a regulatory task" without being a legislative body or having a mandate to adopt legally binding instruments. Agreements were signed by the eight Arctic states but they can rightly be considered as the AC's product. Although not being an international organization in the traditional sense of international law, the AC has been involved in "lawmaking" activities as if it is such an organization. Arguably, the practice of these agreements has changed the nature of the AC and sped up its evolution towards becoming a fully-fl edged international organization under international law.
Th e AC has been successful so far in producing non-legally binding instruments that have direct implications for development and implementation of "hard law" instruments. Using the AC as a platform for negotiations of legally binding instruments is subject to several pre-conditions. For example, the experience with a possible legal instrument to deal with prevention of marine oil spills has revealed not only the complexity of issues at stake but also a question of capacity within the AC to tackle such matters. Prevention of contamination at sea and prevention of oil spills are hard to codify, thus those issues were partially moved to the Polar Code and the AC's work has shifted towards creation of nonlegally binding guidelines. It is no accident, for example, that the AC chose not to become a platform in dealing with negotiations on unregulated commercial fi sheries in the Central Arctic Ocean but is interested in further cooperation with relevant regional organizations.
To sum up, the Arctic Council is not a law-making body, but it has already contributed to the development of international law as it applies to the Arctic. Any further law-making activities of the AC, such as the negotiation of new legally binding instruments under its auspices, are quite possible but will depend on the will of member states to compromise their national interests.
It remains to be seen whether Arctic governance will be strengthened if AC formally opens its "law-making" process to relevant non-Arctic actors. 113 A lot will depend on the particular subject matter of any further agreements.
Finally, the Arctic Council may continue its contribution to law-making by serving as a platform and initiator for negotiations; infl uencing global and regional legal instruments by means of involvement in their negotiation and implementation; and by bringing the Arctic voice to those endeavours through scientifi c assessments and reports. Also, the AC's practice of producing "soft-law" documents will continue to infl uence the development of regulatory frameworks.