The Legitimacy Of Eu Policies On The Arctic W97

The legitimacy of the Arctic related policies of the European Union Research report (following the research proposal presented in December 2008)

Alejandro Olmos i Marcitllach January 2009

Word count: 3.499

Acknowledgments Many thanks to Cristina Leston-Bandeira and Professor Lord Norton whose support was essential to gain the chance of being placed in the European Parliament. Thanks also to Gary Titley MEP for first encouraging me to focus the research in the very exciting topic of the EU-Arctic relations. To Stewart Arnolds for arranging the interview with Diana Wallis MEP and the presentation with Jaime Reynolds - who contributed to this study by providing the expertise viewpoint. To Hossain Kamrul for organising a fantastic conference and taking into consideration the ideas presented in this paper. Finally, big thanks to Madlen Haupt and John Cummings for their indispensable help with reading, checking and correcting the following text.

January 2009, Alejandro Olmos i Marcitllach

Index I

Contextualization

p.5

II

The importance of the legitimacy question

p.5

Legitimacy in supranational government Legitimacy in global environmental governance Legitimacy of the European governance III

An interested party

p.8

The risks to the safety and security of the European Union in a changing scenario The responsibilities of the European Union as a global polluter The emerging opportunities for the European Union IV

The democratic mandate

p.11

V

Threats to the EU’s policies legitimacy

p.13

VI

Concluding remarks

p.15

List of Abbreviations MEP

Member of the European Parliament

US

United States of America

IPPC

Intergovernmental Panel on Climate Change

ACIA

Arctic Climate Impact Assessment

EU

European Union

EC

European Commission

DG Mare

EC’s Directorate-General for Maritime Affairs and fisheries

UNCLOS

The United Nations Convention on the Law of the Sea

EEZ

Exclusive Economic Zone

UK

United Kingdom

AEPS

Environmental Protection Strategy

DG ENVI

European Commission's Environment Directorate-General

Contextualization In August 2007, Russian successful attempt to plant a flag on the seabed under the North Pole was seen by media and international governments as a claim to the Arctic energy resources. A few days later, Willy De Backer posted an article on one of Europe’s most influential blogs wondering whether if the Arctic would become a new Middle East. More recently, in the last days of his mandate, President George W. Bush signed a new policy paper stating that the US will “project a sovereign United States maritime presence in the Arctic in support of essential United States interests”1. Two months earlier, the European Commission published the Communication 2008/763 aiming to define the role of the European Union in the Arctic region. Following this announcement, Rob Hubert, associate director of the centre for strategic studies at the University of Calgary, said that the Europeans were “using sleight of hand”2. There is little disagreement between scholars that the changing Arctic scenario is becoming increasingly important in terms of geo-politics and geo-economics. Recent events show that no player wants to be ruled out of this ‘new game’ and as such the European Union wants to have its say. In this context, the question of legitimacy gets more relevant as the potential for a clash of interest between the different regional actors grows. Answers to this question will be examined through the following pages. Through a more theoretical approach we will firstly analyse why legitimacy matters in the decision making process, especially within the field of environmental governance and supranational politics. Finally we will review the different sources of legitimacy, and its possible threats, for the development of European Union policies on the Arctic.

The importance of the legitimacy question In political science, legitimacy refers to the acceptability of a policy, and in last term the acceptability of a governing authority, to the public. As in words of Seymour Martin Lipset legitimacy “involves the capacity of a political system to engender and maintain

1 Bob Weber, The Canadian Press, 12 January 2009; quotes the “National Security Presidential Directive 66” and the “Homeland Security Presidential Directive 25 of 9 January 2009. 2 Embassy, The Hill Times, 10 December 2008

the belief that existing political institutions are the most appropriate and proper ones for the society”3. Legitimacy is therefore linked to the concept of consent4. Something becomes legitimate only when it is carried out with approval. This approval, according to the classic analysis by Max Webber5, can be of two kinds: substantive or procedural. This means that the acts of a government can be legitimated either for what they achieve (substantive) or for how they are achieved (procedural). Even if only an abstract concept, political legitimacy, matters to the policy makers. Professor Christopher Lord from the University of Leeds explains: “without widely agreed views of who has a right to make publicly-binding decisions, when and how, governing bodies find it difficult to achieve the unforced cooperation of citizens.6” From Aristotle to Thomas Hobbes, most of the classic theories of social organization until the XVII century did not consider democracy as being necessary for legitimacy. However, in contemporary western politics the most frequent source of legitimacy is the perception that a government is run by the will of the people. Thus, as David Held maintains, democracy is the central principle that justifies authority in modern politics7. Legitimacy in supranational governance With the superseding of the national state, the question of legitimacy has become even more important in the last century. The apparition of cross-national and supranational governing bodies has radically challenged the notions of sovereignty and legitimacy. Regardless of the definitions, the continuing discussion on the restructuring of global authority always has to serve as the crucial context for any new legitimacy concern that arises8. Traditional approach denies the debate on international legitimacy given that the International Relations discipline has always considered that there is no domination, but anarchy, in the international system9.

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Political Man: The Social Bases of Politics; Lipset, Seymour Martin “the government is not legitimate unless it is carried on with the consent of the governed”, ‘John Locke: Critical Assessments’; Richard Ashcraft 5 ‘Rulership and legitimacy, Basic concepts of sociology’; Max Weber 6 ‘Legitimacy, democracy and the EU: When abstract questions become practical policy problems’; Christopher Lord 7 ‘Democracy and the Global Order: From the Modern State to Cosmopolitan Governance’; David Held 8 Cfr. ‘Governance in a Global Economy: Political Authority in Transition’; Miles Kahler & David Lake or ‘Complex Sovereignty and the Foundations of Global Governance’; Edgar Grande & Louis W. 9 ‘As reflected for first time in The international anarchy 1904-19’; Goldsworthy Lowes Dickinson 4

But even if it is still true that there is nothing such as a world government able to announce and enforce every norm, transnational governance structures nowadays are very advanced. Since today's 'global governance' has widened its scope and reach significantly during recent years, it appears more obvious than ever before that without legitimacy this system would barely be working, whether legitimacy was actually the key to international stability and patterned behaviour in the past or not. As Jens Steffek states, “this debate lies on the problem of democratic legitimating: how can democratic legitimacy be transferred from the single citizen to a remote decisionmaking body on the international level?”10 Legitimacy in global environmental governance Marck C. Suchman (1995) argues that from a sociological perspective, legitimacy is rooted in the belief that “the actions of an entity are desirable” in a social system with shared values11. Hence the civil society not only expects these governing institutions to fulfil their functional tasks like maintaining financial stability but to provide general societal values such as social justice, equity or environmental sustainability.12 Many scholars criticise the fact that lawyers within the international law field tend to simplify legitimacy into legality. However legality indeed is a key factor in global governance and in the case of environmental management Daniel Bodansky anticipated that the question of legitimacy would “emerge from the shadows and become a central issue”.13 One of the reasons why legitimacy concerns regarding the environmental policies have increased is the common belief that global environmental governance lacks enforcement capacity and remains unable to solve the problems for which agreements and institutions have been established.14 Legitimacy of European Union governance The case of the European integration is especially complex and many authors have discussed its legitimacy. During his 1863 Gettysburg Address, Abraham Lincoln defined American democracy as the “government of the people, by the people and for the people”. Following this thinking Fritz Scharpf (2000) distinguishes two forms of legitimacy for the European

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‘The power of rational discourse and the legitimacy of international governance’; Jens Steffek. ‘Managing Legitimacy: Strategic and Institutional Approaches’; Marck C. Suchman. 12 ‘Justice Unbound: Globalization, States, and the Transfer of the Social Bond’; Richard Devetak & Richard Higgott 13 ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’; Daniel Bodansky 14 ‘The Global Environmental Agenda: Origins and Prospects’; James Gustave Speth or A World Environment Organization: Solution or Threat for Effective International Environmental Governance; Frank Biermann & Steffen Bauer 11

Union: one based on the policy-making process (government of the people) and one that focuses on the policy outcome (government for the people).15 Paul Magnette finds five vectors providing structural governance to the Union: international legitimacy (derivates of the legitimacy of its member states), parliamentary legitimacy, technocratic legitimacy, procedural legitimacy and corporate legitimacy. On the other hand Helen Drake argues that “legitimacy in the EU derives not only from formal, democratic representation, but from norms of rationality such as efficiency”16 while Scharpf says that “policy choices that can be justified in terms of consensual notions of the public interest.”17

The following pages will study the particular case of the legitimacy of the Arctic-related policies of the European Union. Despite the claims made by other stakeholders, we will proof the legitimacy of these policies by firstly seeing the European Union as an interested party (substantial legitimacy based on the policy outcome) and then examining the democratic mandate of the European Union to develop policies in this field (procedural legitimacy based on the policy-making process).

An interested party According to the US Geological Survey report18 the Arctic conceals over 20 % of the world’s undiscovered gas and oil resources. Over the past 50 years, its air temperature has increased by twice the global average19, with 2007 as the warmest year on record for the Arctic20 and the lowest level of sea ice in modern history21. On 15 September 2007, the Arctic ice cap was 22% below the last record set in 2005. According to Douglas Bancroft, director of the Canadian Ice Service, the 2007 record exceeded the computer model predictions utilised to prepare the Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report (AR4) in 200722. Perhaps even more important than ice-coverage as such, is the increasing percentage of first-year sea-ice. Indeed In 2004 the (ACIA) Arctic Climate Impact Assessment study23 did forecast a 7 Celsius degrees temperature rise by the end of the present century and other studies

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Governing in Europe: Effective and Democratic? Fritz Scharpf Legitimising European integration: Perspectives and discourses of legitimacy in the European Union; Helen Dake 17 Cfr. Supra note 15 18 U.S. Geological Survey Fact Sheet 2008-3049, Kenneth J. Bird, Ronald R. Charpentier, Donald L. Gautier (CARA Project Chief), David W. Houseknecht, Timothy R. Klett, Janet K. Pitman, Thomas E. Moore, Christopher J. Schenk, Marilyn E. Tennyson, and Craig J. Wandrey; Edited by Peter H. Stauffer. 19 Arctic Report Card 2008, J. Richter-Menge, J. Overland, M. Svoboda, J. Box, M.J.J.E. Loonen, A. Proshutinsky, V. Romanovsky, D. Russell, C.D. Sawatzky, M. Simpkins, R. Armstrong, I. Ashik, L.-S. Bai, D. Bromwich, J. Cappelen, E. Carmack, J. Comiso, B. Ebbinge, I. Frolov, J.C. Gascard, M. Itoh, G.J. Jia, R. Krishfield, F. McLaughlin, W. Meier, N. Mikkelsen, J. Morison, T. Mote, S. Nghiem, D. Perovich, I. Polyakov, J.D. Reist, B. Rudels,U. Schauer, A. Shiklomanov, K . Shimada, V. Sokolov, M. Steele, M.-L. Timmermans, J. Toole, B. Veenhuis, D. Walker, J. Walsh, M. Wang, A. Weidick, C. Zöckler. 20 Cfr. Supra note 19 21 Sea ice index. Boulder, CO: National Snow and Ice; F Fetterer and K. Knowles. Digital media. 22 October 2007 News release of the International Ice Charting Working Group http://nsidc.org/noaa/iicwg/IICWG8_2007/IICWG_NEWS_RELEASE.pdf 23 Arctic Climate Impact Assessment - Scientific Report. Jim Berner, Terry V. Callaghan & Shari Fox 16

do work with the hypothesis that by 2040 the Arctic Ocean will be ice-free during the summer months.24 The European Union is a direct neighbour of the Arctic and as such its evolution has been deeply related to the one of the Arctic. The Finish and Swedish accession to the EU in 1991 substantially increased the Northern presence of the Union and since then concrete Arctic-orientated policies (such as the Arctic window of Northern Dimension) have been developed. Additionally, six of its member states currently hold a seat in the Arctic Council, an intergovernmental body that brings together representatives of Arctic indigenous communities and fourteen nations. Hence, the European Union is asked to have a fundamental role in the future development of the region. Moreover the above mentioned major changes in the area open new opportunities and threats for the neighbourhood. Opportunities and threats that eventually provide a substantial legitimacy for the Union to develop new Arcticrelated policies. The risks to the safety and security of the European Union in a changing scenario During the 2008 Spring Summit of the European Union, the European Council endorsed a paper25 on the security threats posed by the impact of the climate change. The report, authorised by the EU’s High Representative and the European Commission, identified five main threats for the international security. Accordingly to this report, the effects of climate change will considerably increase the intensity and frequency of natural disasters. The report also points out how the rapid retreat of snow cover, sea ice and permafrost were helping to accelerate global warming. This will especially affect the coastal cities – home of about one fifth of world population. Overall it has been estimated that even the best scenario would still cost the world economy up to 20% of the global GDP. Equally alarming is the prediction that the sea-level rise will lead to the disappearance of entire countries. Analysts say that border disputes are likely increase as a result of submergence of large areas and receding coastlines. The immediate consequences of these happenings would be a large number of environmentally induced migration movements and disputes over territorial rights. The document also emphasises the possibility of future conflicts due to a wide shortage of water and a massive diminution of food. More importantly, particularly in the Arctic, the melting of the polar ice caps will increase the accessibility of enormous resources as a consequence of global warming. Thus the report warns of a potential conflict as a result of the competition for energy resources. 24

Paragraph adapted from the research proposal submited in December 2008 Climate change and international security, Paper from the High Representative and the European Commission to theEuropean Council S113/08 14 March 2008 25

The paper calls for an improvement of the EU’s own capacities in the prevention and early responses to disasters and conflicts. Finally the report urges for a reform of the global governance. Moreover, the European Commission has more recently published a communication26 aiming to define the role that the EU wants to play in the future of the region. In the same manner as the paper authorised by Javier Solana did, the communication calls for the setting of a new regulatory framework. The responsibilities of the European Union as global polluter The European Environmental Agency reported27 a total CO2 production of 4.201 Mt. for all the member states. However, a 2008 WWF report28 finds significantly higher numbers. According to the latter the consumption of goods within the EU caused 4,700 Mt. of CO2 emissions in 2001. Nevertheless the obligations that the EU assumed under the Kyoto Protocol were based on a figure of 4.200 Mt. Most scholars agree that the changes in the Arctic are driven by warming gases in the atmosphere. It is therefore European’s ethical and self-interested duty to accept a share of responsibility for the CO2 emissions produced as a result of European consumption. The emerging opportunities for the European Union On the other hand the melting of the arctic will present new opportunities. Last September, speaking to the Nordic Council on behalf of the European Union, Commissioner Joe Borg said that these changes “would translate into shorter transportation routes and greater trading possibilities, and will provide a better opportunity to draw upon the wealth of untapped natural resources in the Arctic."29 Recent scientific studies show evidence that the Arctic house the 25 percent of world’s unexploited oil reserves. Despite of several attempts by American oil companies, the drilling has not been possible until now due to the high costs. But, according to many observers30, the rapid recess of the Arctic ice and the increasing oil prices could “make the process a lot more cost-effective and accessible.”31 Recognising the fact that most of these resources are contained in the exclusive economic zones of Russia and the United States, Commissioner Benita Ferrero-

26 Communication, COM(2008) 763, The European Union and the Arctic Region, from the Commission to the European Parliament and the Council. December 2008, Brussels. 27 Environmental signals 2001; European Environment Agency 28 ‘EU Consumption, Global Pollution’; Industrial Ecology Programme, WWF International. 29 The Arctic: a matter of concern to us all. Speech by Commissioner Joe Borg at the Conference: "Common Concern for the Arctic", Ilulissat, Greenland, 9 September 2008 30 Ie. Jackie Grebmeier speaking to Lindsay Patterson http://blogs.earthsky.org/lindsaypatterson/human-world/080856/meltingice-equals-arctic-opportunities/ 31 Cfr. Supra note 30

Waldner recently said that it was “all the more important today to develop single international norms for developing these resources and defending the environments.”32 Additionally, last summer, for the first time in history, both the Northwest and the Northeast passages were reported to be free of ice33. The opening of a shipping route through the Northern Sea Route would potentially be translated into a radical reduction of the trip between the Atlantic and the Pacific oceans. There are, according to the statistics, no more than 30 days per year in which the Northeast shortcut is not 50 percent covered by an ice cap34. However, such days are estimated to become increasingly frequent in the Northeast route and indeed shipping companies are already planning to send expeditions through it.35 Finally it is commonly agreed36 that EU member states currently have some of the highest environmental standards in the world. Some scholars fear that, if not avoided, in order to preserve competitiveness, the new scenario could generate a ‘race-to-thebottom’37 competition between environmental laggards and EU member states.

The democratic mandate We have already seen arguments that would justify an intervention of the European Union institutions in the Arctic region. But, as mentioned in the first pages of this essay, democracy remains as the main source of procedural legitimacy in modern politics. This study acknowledges the abundant literature on the so-called European democratic-deficit debate. Moreover, the author shares the common impression that accountability and democracy could improve within the supranational and national institutions of the European Union. However this study will ignore the presumed gaps in democracy characterizing the works of the European Union and will therefore consider the existence of a democratic mandate in all the actions of the institutions of the Union. This assertion is based in a threefold argument: 1. There is a free, pluralist and democratically elected European Parliament with codecision powers.

32 http://www.bellona.org/news/news_2008/twenty_five_percent 33 http://www.independent.co.uk/environment/climate-change/for-the-first-time-in-human-history-the-north-pole-can-becircumnavigated-913924.html 34 35 36 37

http://www.spiegel.de/international/world/0,1518,574815,00.html http://p103262.typo3server.info/uploads/media/2008_09_08_TradeWinds_Trailblazer.pdf Globalizing EU Environmental Regulation; R. Daniel Kelemen, Rutgers University See Stewart 1993 and Drezner 2000 for critiques of such race-to-the-bottom arguments.

2. The other institutions (European Commission and European Council) involved in the co-decision process gain their mandate from the member states (democratically elected) national governments. 3. The indicators show an overall confidence in the European Union institutions for 26 out of 27 member states38 4. The European Union is not a nation-state; therefore the EU should not be held to the same democratic standards39 For the concrete purpose of this essay we will take into consideration the above argument and will understand that European Parliament resolutions do imply a direct mandate from the European citizens. Thus we shall recall the European Parliament written declaration on Arctic governance adopted in October 2008. Among other things the resolution: 5. Welcomes the fact that the 'High North' forms part of the EU's Northern Dimension policy, but is convinced that awareness of the Arctic's importance in a global context needs to be raised further by delivering a standalone EU Arctic policy; 6. Underlines the significance of the Arctic for the global climate in this respect and hopes that the present support for research activities in that region will be continued beyond the International Polar Year; 7. […] calls on the Commission to address, at least, the following issues in its communication: c) the need to cooperate with our Arctic neighbours on cross-border issues, in particular maritime safety; and d) options for a future cross-border political or legal structure that could provide for the environmental protection and sustainable orderly development of the region or mediate political disagreement over resources and navigable waterways in the High North; 10. Is of the view that the maritime traffic in the region (both tourist- and offshore drilling-related) does not enjoy anywhere near the level of minimum international safety rules that prevail in other international waters [..] and urges the Commission to ensure, as soon as possible, that appropriate amendments are made to the International Maritime Organisation (IMO) regulations;

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Data from the The Eurostat 2008 yearbook Globalizing EU Environmental Regulation; Sophie Meunier, Princeton University

13. Remains particularly concerned over the ongoing race for natural resources in the Arctic, which may lead to security threats for the EU and overall international instability; 14. Urges the Commission to take a proactive role in the Arctic by at least, as a first step, taking up 'observer status' on the Arctic Council, and considers that the Commission should set up a dedicated Arctic desk; 15. Suggests that the Commission should be prepared to pursue the opening of international negotiations designed to lead to the adoption of an international treaty for the protection of the Arctic, having as its inspiration the Antarctic Treaty, as supplemented by the Madrid Protocol signed in 1991, but respecting the fundamental difference represented by the populated nature of the Arctic and the consequent rights and needs of the peoples and nations of the Arctic region; believes, however, that as a minimum starting-point such a treaty could at least cover the unpopulated and unclaimed area at the centre of the Arctic Ocean; [...]

The threats to the EU’s policies legitimacy After a careful examination, this study couldn’t find any major threats to the legitimacy of the Arctic-related policies of the European Union. Nonetheless, Sophie Meunier (2002) argues that “the belief in legitimacy is more important than actual legitimacy, or lack thereof.”40 In this manner we can identify several concerns that, at least, would potentially threat further involvement of the European Union in the Arctic region. External threats Last December, a Canadian newspaper reported that the European Commission wanted to promote "binding international standards"41 for the offshore oil extraction process, in a move that “could pose diplomatic challenges for Canada”42. Additionally, only a few days before, Canadian Prime Minister, Stephen Harper, announced to the House of Commons that the Conservative government will do efforts to "expand our [Canadian] jurisdiction"43 over the Arctic waters. This may respond to

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Cfr. Supra note 39 http://www.canada.com/ottawacitizen/news/story.html?id=380040ad-ed7b-4890-ab31dcef9ea9e2d2 42 Cfr. Supra note 41 41

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Cfr. Supra note 42.

some of the Canadian authorised policy papers which call to “prepare for a new Arctic age”44 or “respond the coming storm”.45 More recently, in January this year, senior government officials of the Russian government announced a new national security strategy. According to the Interfax news agency 46, the policy paper will focus on the energy production potentials of the Arctic. According to the same sources the paper will present the United States as Russia’s main competitor. The paper would also call to “protect its national interests [...] with a pragmatic foreign policy [and] without engaging in expensive confrontation.” However the Russian expedition to the North Pole through the Lomonosov Ridge, which has been already commented in the research proposal and also in contextualization of the present essay, would justify suspicions within the international community. Also in early 2009, George W. Bush, signed a National Security Presidential Directive which aims to "project a sovereign United States maritime presence in the Arctic in support of essential United States interests."47 This follows a previous call for the ratification of the United Nations Convention on the Law of the Sea treaty48 as previous step to a formal claim for the extension of its EEZ. Internal threats EU’s involvement in the Arctic region is often questioned by the fact that none of its member states is indeed an Arctic coastal state. 49 This could become even truer after a non-binding referendum on Greenland’s (current Europe’s border with the Arctic) self-government was passed last November. Finally, some concerns over the legitimacy of the EU acts can be found from the perspective of the trade policy. Thus, some authors argue that the policy making process can be easily manipulated and “captured by protectionist interests”.50

44 Canada must prepare for new Arctic age: Huge changes pose challenge for government; Rob Huebert, Monday’s Edmonton Journal 45 Canadian Arctic Security: Understanding and Responding to the Coming Storm; Rob Huebert for the Canadian International Council 46 Nikolay Patrushev speaking to the Russian news agency Interfax http://www.barentsobserver.com/new-national-securitystrategy-highlights-arctic.4540802-28235.html 47 Cfr. Supra note 1 48 http://www.msnbc.msn.com/id/21131181/ Acceded December 2008

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The five Arctic coastal states are: Canada, Iceland, Norway, Russia &USA. Cfr. Supra note 39

Concluding remarks Legitimacy is always a complex and multisided question and equally complex was our initial dilemma - whether the European Union is legitimate to carry on new Arcticrelated policies, or not. In order to give response this question we have followed the dual approach to the legitimacy question traced by Max Webber (Substantial legitimacy versus procedural legitimacy), Abraham Lincoln (government for the people versus government of the people) and more recently Fritz Scharpf (legitimacy based on the policy outcome versus legitimacy based on the policy-making process). As a result of this we have identified enough natural (such as the self-protection) and positive (or the democratic will) arguments to defend that indeed the institutions of the European Union are legitimated to develop a proactive approach towards the Arctic region. But, given that these policies would potentially affect other population than the governed by the institutions of the European Union, we have identified as well a potential clash with the interests and/or legitimacies of other stakeholders. This study will conclude that insofar “the belief in legitimacy is more important than actual legitimacy or lack thereof”51, the more collaboration there is with third parties, the more the policy-making of the European Union will be legitimate.

Alejandro Olmos i Marcitllach

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Cfr. Supra note 39