¹ As of April 1, 1999, Iqaluit became the capital of the new Canadian territory of Nunavut. It is a town of approximately 4,000 inhabitants, mostly Inuit, located on Baffin Island in Northern Canada. By holding the Council’s Ministerial Meeting in Iqaluit, the Canadian Government emphasized the essential linkage between the Council and the indigenous communities of the Arctic.

² On use of the phrase “indigenous peoples,” see infra note 20.

³ Arctic Environmental Protection Strategy, 2 Yb. Int’l Env. L. 585 (1991).

⁴ See id. at 619, 623, 627; See also Declaration on the Protection of the Arctic Environment, 2 Yb. Int’l Env. L. 581 (1991). These working groups operated semi-autonomously, with groups of specialists meeting regularly under the leadership of a chairman proposed by countries taking the lead in the particular working group’s activities. The working groups were, nevertheless, subject to mandates established for them at AEPS ministerial meetings and contained in the declarations released at those meetings, and coordinated through the efforts of designated senior officials.

Small secretariats were established by interested states on a voluntary basis to support the groups’ work. Denmark also established an “Indigenous Peoples’ Secretariat” to assist indigenous groups in their participation in the AEPS.

⁵ Arctic Pollution Issues: A State of the Arctic Environment Report (Arctic Monitoring and Assessment Programme, 1997) (on file at the U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Oceans Affairs [hereinafter Office of Oceans Affairs]).

⁶ Declaration on the Establishment of the Arctic Council, para. 1 (a), 35 ILM 1387 (1996) [hereinafter Ottawa Declaration]. The Declaration also provides that the Council “should not deal with matters related to military security.” Id. at 1388 n. 1.

⁷ The Iqaluit Declaration (Sept. 18, 1998) (on file at the Office of Oceans Affairs) [hereinafter Iqaluit Declaration].

⁸ Report of Senior Arctic Officials to the Arctic Council 6–7 (Sept. 17, 1998) (on file at the Office of Oceans Affairs) [hereinafter Report of Senior Officials].

⁹ See id. at 10.

¹⁰ See id. at 12–14.

¹¹ Ottawa Declaration, supra note 6, para. 1 (c).

¹² Sustainable development has been a major international topic since the first “Earth Summit” in Rio in June 1992—the United Nations Conference on Environment and Development (UNCED). The key documents negotiated by UNCED, the Rio Declaration on Environment and Development, and Agenda 21: Programme of Action for Sustainable Development, do not provide a true definition of the term. See Agenda 21: The United Nations Programme of Action From Rio, UN Doc. DPI/1344, UN Sales No. E.93.I.11 (1993). Discussions on sustainable development are now carried out within the UN system under the auspices of the Commission on Sustainable Development, which was established by the UN General Assembly in Resolution 47/191, UN GAOR, 47th Sess., Supp. No. 49, Vol. 1, at 141, UN Doc. A/47/49 (1992) and by the Economic and Social Council in Decision 1993/207, ESCOR, Supp. No. 1, at 94, UN Doc. E/1993/93 (1993), and which monitors implementation of Agenda 21. The tension between developing states, which emphasize sustained economic growth as a means to reduce poverty, and developed states, which emphasize the need to ensure that economic growth is environmentally sustainable, makes arriving at a satisfactory definition and approach a difficult task.

¹³ See discussion infra, Part III.

¹⁴ The Council also welcomed a new plan to establish a University of the Arctic, a cooperative effort among universities with an interest in Arctic studies. The University of the Arctic was proposed by a working group of the Circumpolar Universities Association, which sought the Council’s support for its endeavor. This is an example of a program or project not under the auspices of the Council but deemed worthy of endorsement. Those outside the Council may find it difficult to appreciate the distinction between the projects of the Council and those simply endorsed by it. Indeed, the press at Iqaluit seemed as interested in the University of the Arctic as in any of the Council-developed programs, however, the legal difference is significant. Unlike the Council’s programs, programs administered by other organizations which are only endorsed by the Council are not subject to direction by the Ministers and SAOs. These programs do not need to follow the Council’s basic procedures, which include careful development and vetting of proposals and acceptance by a consensus of the Arctic states.

¹⁵ Ottawa Declaration, supra note 6, para. 2.

¹⁶ The Ottawa Declaration provides for admission of new Permanent Participants, but requires that at any time the number of Permanent Participants must be less than the number of Arctic states. Id. Capping the number at seven prevents the number of overall participants—states and indigenous groups—from becoming unmanageable. However, it also raises difficult issues of how the Council can and should choose among groups to fill the remaining three slots.

In the period between the Ottawa and Iqaluit meetings, the Russian Permanent Participant changed its name to the Russian Association of Indigenous Peoples of the North, and that name is reflected in die Iqaluit Declaration.

¹⁷ See Arctic Council Rules of Procedure Rule 4 (Sept. 18, 1998) (on file at the Office of Oceans Affairs) [hereinafter Rules of Procedure]. See also Rules of Procedure, id. Rule 5, and the Ottawa Declaration, para. 2, supra note 6, 35 ILM at 1388–89, which both provide that the “category of Permanent Participation is created to provide for active participation and full consultation with the Arctic indigenous representatives within the Arctic Council.” In essence, the Permanent Participants have the same rights as states members, with the exception of decisionmaking (which is by a consensus of the states) and the right established in the Rules of Procedure for the “Heads of Delegation of the Arctic States [to] meet privately at their discretion.” Rules of the Procedure, supra Rule 6. The latter rules reflect the potential need for states to discuss matters, such as funding or sensitive political issues, or admission of new Permanent Participants, alone. In practice, Heads of Delegation meetings have not excluded Permanent Participants.

¹⁸ See Rules of Procedure, supra note 17, Rule 26.

¹⁹ See Iqaluit Declaration, supra note 7, paras. 7–9.

²⁰ An issue of significant disagreement within the Council has been whether Council documents can use the word “peoples” to describe the indigenous groups. In the international context the United States has viewed the “s” as inappropriate because it may imply sovereign rights under international law. Thus, the United States has opposed inclusion of the word “peoples.” A dispute over this issue was resolved for the Ottawa Declaration by use of the term once, with a footnote stating that “[t] he use of the term ‘peoples’ in this Declaration shall not be construed as having any implications as regard the rights which may attach to the term under international law.” Ottawa Declaration, supra note 6, para. 2 n. 2, 35 ILM at 1388. This footnote compromise follows a precedent from the International Labour Organisation Convention No. 169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, Art. 1 (3), 28 ILM 1382 (1989), and has been employed in a number of other AEPS and Council documents. However, the Iqaluit Declaration, supra note 7, and the related Report of Senior Officials, supra note 8, used neither the footnote nor the “s” (other than in proper names and quotations).

²¹ The Arctic Council Secretariat is located in the U.S. Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Office of Oceans Affairs, Washington, D.C. 20520. Further information on the Council is available at the Council’s web site, http://arctic-council.usgs.gov.

²² Rules of Procedure, supra note 17, and Arctic Council Terms of Reference for a Sustainable Development Program (Sept. 18, 1998) (on file at the Office of Oceans Affairs) [hereinafter Terms of Reference].

²³ The United States originally presented draft rules modeled on those used by the Antarctic Treaty System for Antarctic Treaty Consultative Meetings. See Revised Rules of Procedure (1997), Antarctic Treaty Consultative Meeting XXI, Decision 1, Final Report of the Twenty-first Antarctic Treaty Consultative Meeting 121 (May 19–30, 1997). Other delegations held that a short list of essential rules was all that was needed. The final rules number some forty-seven paragraphs and two annexes.

²⁴ Ottawa Declaration, supra note 6, para. 7, 35 ILM at 1389. See also Rules of Procedure, supra note 17, Rule 7.

²⁵ See id., supra note 17, Rule 28. Subsidiary bodies of the Council may establish operating guidelines which are consistent with the Rules of Procedure. Id. Rule 31. Such guidelines must be approved by the SAOs, and are intended to be supplementary in nature. They should facilitate the work of the groups, but may not conflict with the rules being followed by the Council as a whole.

²⁶ See id., supra note 17, Rule 26.

²⁷ See id., supra note 17, Rule 23. SAOs can guide the Council’s work through “written communications, including telefax communications” as well as at meetings. Id., Rule 14.

²⁸ Annex I to the Rules of Procedure, supra note 17, lists elements for inclusion of proposals for cooperative activities “as a guide.” Elements listed in the Terms of Reference, however, must be included in proposals which fall within the Sustainable Development Program. Thus, a major distinction between sustainable development and other proposals is that the former must address a mandatory list of elements. The rationale for the distinction is that the Council has no experience with sustainable development projects as such. It is important to have information available in some key areas so that SAOs and Ministers can make appropriate determinations.

²⁹ Terms of Reference, supra note 22, para. 2.

³⁰ U.S. Government marine mammal policies are required to be consistent with the Marine Mammal Protection Act of 1972, 16 U.S.C. §§1361–1407 (1994 & Supp. 1997). The Act establishes a moratorium on taking and importation into the United States of marine mammals and marine mammal products, with certain exceptions. Marine mammals and marine mammal products can be imported if certain conditions are met, for example, the affected animal was not pregnant, nursing or less than eight months old at the time of the taking, and the affected population has not been designated as depleted. In addition, Alaska natives are exempted from the moratorium on taking provided the taking is for subsistence purposes or is done for handicraft purposes and is not accomplished in a wasteful manner.

³¹ See letter from Michael Kantor, Secretary of Commerce, to the President (Dec. 12, 1996) (on file at the Office of Oceans Affairs).

³² The President acted in connection with a report to the Congress under the Pelly Amendment to the Fisherman’s Protective Act of 1967, as amended, §8(a), 22 U.S.C. §1978 (1994). President’s Message to Congress on Canadian Whaling Activities, in I Pub. Papers 143 (Feb. 10, 1997). The President’s message noted the certification by the Secretary of Commerce to the effect that Canada had “conducted whaling activities that diminish the effectiveness of a conservation program of the [IWC].” Id. The President concluded that “Canadian whaling on endangered whales warrants action at this time. Accordingly, I have instructed the Department of State to oppose Canadian efforts to address takings of marine mammals within the newly formed Arctic Council. I have further instructed the Department of State to oppose Canadian efforts to address trade in marine mammal products within the Arctic Council.” Id. at 144.

³³ “Observer status … is open to [such states and organizations] that the Council determines can contribute to its work.” Ottawa Declaration, supra note 6, para. 3, 35 ILM at 1389.

³⁴ Rules of Procedure, supra note 17, Rule 37

³⁵ Rules of Procedure, supra note 17, Annex 2. Germany, the Netherlands, Poland, the United Kingdom, the Nordic Council, the Northern Forum, the United Nations Economic Commission for Europe, the United Nations Environmental Program and the International Arctic Science Committee obtained Observer status.

³⁶ At Iqaluit, the Arctic states accorded Observer status to three such organizations: the Standing Committee of Parliamentarians of the Arctic Region, the World Wide Fund for Nature, and the International Union for Circumpolar Health.

³⁷ The “G7” becomes the “G8” when the Russian Federation participates.

³⁸ The United States has bilateral commissions with Mexico, South Africa, and Ukraine, among others. With the resignation of Victor Chernomyrdin as Russian Prime Minister, the informal name of the U.S.-Russian body has changed to the Gore-Stepashin Commission.

³⁹ To the extent that cooperation by the United States involves participation in particular programs or activities, there must be a proper legal basis for that participation. Thus, if the Department of Energy wishes to provide personnel or other in-kind resources to advance an Arctic Council EPPR project in the Arctic, its activities and provision of resources must be consistent with relevant legislation.