The Legal Status of Oil and Gas Exploitation in the Arctic - The Case of Norway

According to the professors Beate Sjåfjell and Anita Halvorssen, the government must let the oil and the gas in the Arctic stay in the ground, if Norway is to comply with its national and international environmental commitments.

In this article, Sjåfjell and Halvorssen analyse national, European and international law to evaluate what obligations Norway is bound by and how this affects the political and legal room of maneuver of Norwegian politicians.

The scientific reasons for keeping it in the ground

According to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), fossil fuel production will not be able to continue as it is now if we are to stay below the two-degree Celsius increase in temperature relative to pre-industrial levels. A fundamental shift from fossil fuels to renewables is necessary, with the majority of known fossil fuel reserves needing to remain in the ground. The Arctic is especially vulnerable: climate change is already affecting this region with the largest increase in temperature compared to all other areas of the globe. The rates of warming in the Arctic are unprecedented, impacting the atmosphere and the oceans. The melting of polar ice and land ice due to climate change, especially in Greenland, also exacerbates climate change amounting to a positive feedback loop. Oil and gas exploitation in the Arctic has additional environmental impacts affecting the marine environment and the atmosphere in the form of pollution in the oceans and a haze in the air space in the lower atmosphere affecting Arctic populations. The Arctic also has an indigenous population of 400,000, many of whom depend on the land and marine resources to uphold their subsistence livelihoods. The environmental and social impacts for these indigenous groups should be integrated into any energy development project in the Arctic.

Is large-scale exploitation in the Arctic legal?

With this backdrop, the article’s main question is whether new and large-scale oil and gas exploitation in the Arctic is lawful under international law and domestic law. The article focuses especially on the case of Norway as one of the Arctic states. Starting on the level of international law, the article argues that oil and gas exploitation in the Arctic on a large scale, although not expressly prohibited, would defeat the object and purpose of the UN Framework Convention on Climate Change (UNFCCC), general legal principles relating to climate change, UN Convention on the Law of the Sea (UNCLOS), the Biodiversity Convention and international human rights agreements and declarations, including the UN Declaration on the Rights of Indigenous Peoples. It also breaches the spirit of the EU Treaties’ goal of sustainable development. On the national level, Norway’s constitutional provision on environmental rights was amended in May 2014. With this amended provision the people of Norway on their own behalf and for future generations have a stronger possibility for enforcing their right to a liveable environment.

Read the article in full at SSRN.

Published Aug. 29, 2016 12:13 PM - Last modified Oct. 17, 2016 4:40 PM