Arctic Council Soft Law: An Effectiveness Analysis

Abstract

Increased hydrocarbon exploitation within the Arctic combined with recent oil spill disasters have increased the importance of ensuring the existence of adequate oil and gas regulations. Currently, the only Arctic specific oil and gas regulatory mechanism is the Arctic Offshore Oil and Gas Guidelines (AOOGG) – a soft-law mechanism developed within the Arctic Council. Given the fragileness of the Arctic ecosystem, ensuring that the AOOGG is effective in its goal of protecting the Arctic environment is paramount. Analyzing the effectiveness of the Council can be done by assessing how it develops state concern, promotes a contractual environment, and builds state capacity. As it is currently structured, the Council’s soft-law framework is ineffective. Lacking compliance and review mechanisms, the Council fails to effectively develop state concern or create a contractual environment. The Council, however, has relatively effective capacity building mechanisms. Improving the effectiveness of the Council would not come from developing binding hard--‐law. Rather improvements can be made through the development of review mechanisms. These would serve to increase state concern for oil and gas regulation in the Arctic, as well as improve the AOOGG. Review mechanisms would further develop the AOOGG’s normative niche, promoting attention to norms that the AOOGG advances. Improvements could also be made by developing a clearing-house of information that could improve the capacity of states to implement and promote oil and gas guidelines. This would promote the dissemination of best available technology.