Introduction
The Arctic regime is known for being coherent and stable, and it has been maintained for decades even amid discrepancies between the key actors (Danish Ministry of Foreign Affairs, 2008; Sergunin, Reference Sergunin, Erokhin, Gao and Zhang2018; Spohr, Hamilton, & Moyer, Reference Spohr, Hamilton and Moyer2020). Today, the situation has changed drastically. The seven Arctic Council members suspended their dialogue as a way to show their disapproval of Russian military actions in Ukraine (Arctic Council, 2022b). With many other regional fora following the same path, the Arctic is witnessing a gap in decision-making with no clear way out (The Barents Euro-Arctic Council, 2022). Today, it is even more unclear how non-regional actors, and in particular China, will adapt to this situation. China is often accused of attempts to undermine the norms of international regimes, including in the Arctic (MacDonald, Reference MacDonald2021), and in light of current events, we wonder to what extent China can really affect the Arctic regime. Furthermore, we ask under which circumstances China might acquire more opportunities in this regard.
Since the early 2000s, when China joined the Arctic affairs, its ability to change the Arctic governance framework has been a matter of discussion. The observations on what instigates such debates are well-known. The remote cause refers to Chinese scholars’ controversial claims made in the early 2000s and China’s disputable behaviour in the South China Sea. Both cases raised speculations on the country’s possible assertiveness in the Arctic (Liu, Reference Liu, Spohr, Hamilton and Moyer2020). The direct reason regards China’s status as the US’s competitor. Because of this, any Chinese initiative in the world is likely to be seen as impinging on power. Even the admission of China as an observer in the Arctic Council did not assuage any fears regarding the state’s intentions in the region. China’s claim for its legal rights in the Arctic, with the intention to launch the Polar Silk Road and participate in Arctic governance, is being discussed as veiled attempts to seize the Arctic regime (The State Council of the People’s Republic of China, 2018; United States Department of State, 2019).
In our view, the evaluation of China’s capacities to affect the regime requires a precise theoretical outlook. For the research, we base our argumentation on regime theory. In this framework, we discuss the issue of regime change in the Arctic and describe China’s place in this change. We hypothesise that China’s opportunities in the Arctic regime depend on the regime’s core principles and values remaining coherent with notions declared by the UN and international law.
This article combines political and legal analysis methods to identify areas for China’s involvement in Arctic regime transformation. We start the paper by describing the problem of regime change and the role of new actors in the regime in this process. In the first part, we define Arctic regime change and discuss the observed changes. The second part is focused on determining China’s place in the current Arctic regime complex. Further, we define spheres where China might expand its role in Arctic affairs as the Arctic legal framework undergoes transformations. In conclusion, we share our vision of whether China is interested in sustaining the current regime.
Regime theory perspective
Regime theory studies the emergence and transformation of regimes defined as “a set of principles, norms, rules, and decision-making procedures” that manage common affairs (Keohane & Nye, Reference Keohane and Nye1987; Krasner, Reference Krasner2009; Magri, Reference Magri and Farazmand2018). Several overlapping regimes that are coherent in key norms and principles, and which address one area of international interaction, are considered regime complexes. In our research, we understand the current regimes focused on circumpolar North affairs to make up an Arctic regime complex (ARC) (Young, Reference Young1980). This understanding agrees with Young’s definition of the ARC as an extensive governance network or “a collection of discrete institutional arrangements dealing with interrelated issues but not organised in the form of a hierarchical structure” (Young, Yang, & Zagorski, Reference Young, Yang and Zagorski2022; Young & Kim, Reference Young and Kim2021). Our clarification above emphasises regimes’ alignment with crucial foundations within one complex, which is necessary to consider when studying the changes taking place there.
A purely legal perspective on regimes focuses on the legal framework that guides all of the regime’s components (Pulkowski, Reference Pulkowski2014). In political analyses, we cannot ignore the will of states that enforce the regime complex (Krasner, Reference Krasner2009). This explains the further approach where we consider both the formal rules and the powers involved in regime change.
According to the chosen theoretical perspective, regimes reflect the interests of their key actors. To a lesser extent regimes represent the interests of others that may want to or have already joined the regime but have less authority there (Keohane, Reference Keohane1982). In our case, the Arctic states by virtue of their geography are in a unique position to address the region’s challenges (Zagorski, Reference Zagorski, Jakobson and Melvin2016). Non-regional countries that contribute to Arctic development do not have rights in the ARC equal to those of the regional states (Spohr et al., Reference Spohr, Hamilton and Moyer2020). China is one of these newcomer states in the ARC, and its engagement raises a principal question of whether a newcomer can affect the regime.
A regime change does not necessarily mean a drastic shift, and it can instead be an accumulation of amendments that develop or improve the legal and political ARC modus (Krasner, Reference Krasner1982). This is a healthy way for any regime to adapt to new circumstances. At the same time, the change can be so substantial that it will signal the regime’s disappearance or replacement by another regime. This happens in cases of a regime’s revision of its crucial norms and principles, for instance, respect for the sovereignty of states (Krasner, Reference Krasner1982). The changing of particular secondary regulations or decision-making procedures is less critical because this regards specific issues and thus has narrow outcomes for the whole regime body (Krasner, Reference Krasner2009).
Inside the regime, actors have different authority that allows them to impact the regime. The key actors can affect the core principles, while newcomers do not have such a privilege. They aspire to join the regime, and thus, they need to obtain legitimate status first. Even if they succeed, they still depend on the key actors’ goodwill and acceptance. In this regard, newcomers can only count on making moderate achievements in changing the regime because they do not want to discredit their legitimacy (Konyshev, Reference Konyshev2010; Solon, Reference Solon2013). The only available options for them are making amendments to specific rules and improving their representativeness in key platforms (Goddard, Reference Goddard2018; Larson, Paul, & Wohlforth, Reference Larson, Paul, Wohlforth, Welch Larson, Paul and Wohlforth2014; Miller, Reference Miller2021).
In principle, such changes can have a cumulative effect and can affect crucial norms. However, the latter effect fully depends on the position of the key actors. They must adopt and approve the initiatives to make them viable, and they should share the need to amend the regime’s norms. Thus, regime theory concludes that a newcomer can only have a peripheral role in the regime. Further research will investigate this assumption.
The Arctic regime complex
The established Arctic regime complex (ARC) has a long history starting from the 19th century when the first international acts outlined fundamentals of interaction in the desolate and severe area. The Svalbard Treaty of 1920 established the motive for further approaches to Arctic development. The ARC went through major political convulsions during the last century, but was solidified by launching the Arctic Council in 1996 as a key forum for the eight Arctic states and the region’s indigenous peoples. For the current research, we define the ARC in a broad sense in order to outline the framework for China’s opportunities in the region.
The ARC is a comprehensive combination of national, subregional, and regional regimes nested into global regimes under the auspices of the UN (Young, Reference Young2016). The formal description of these components considers international law as well as decision-making platforms.
The global level implies documents adopted by the UN. The most important of these is the UN Convention on the Law of the Sea (UNCLOS) and its two Implementation Agreements adopted in 1994 and 1995 that regulate a wide range of human activities in the maritime domain. Additionally, a sizable number of universal treaties applicable to the Arctic include the 1974 International Convention for Safety of Life at Sea (SOLAS), the 1973/1978 International Convention for the Prevention of Pollution from Ships (MARPOL), and the 2015 Paris Agreement, etc. (Vylegzhanin, Reference Vylegzhanin, Spohr and Hamilton2020). This level also includes documents applied to the Arctic and adopted within global institutions, for instance, the International Code of Safety for Ships Operating in Polar Waters (the Polar Code), elaborated by the IMO.
At this level, decision-making unfolds in fora and organisations under the auspices of the UN and associated bodies. The three organisations are the International Maritime Organization (IMO) with a mandate to regulate shipping globally, the Commission on the Limits of the Continental Shelf (CLCS), and the International Seabed Authority (ISA). These regulate current and future ocean and seabed activities in the Arctic, including in the “Area” that lays beyond national jurisdiction (Todorov, Reference Todorov2019).
The listed documents and bodies prevail over other international treaties relevant to the Arctic and guide the nested regional level of the ARC. The regional level addresses the specific needs of the High North by downscaling global instruments and filling the gaps that are left uncovered. The regional framework of the ARC encompasses both legally binding rules (multilateral and bilateral agreements) and non-binding political incentives (like the 2008 Ilulissat Declaration or the Arctic Council’s realm). Some regional instruments were negotiated on the regional platforms, such as the three legally binding Arctic agreements (Arctic Council, 2022a). Others were adopted within global institutions, for instance, the 1920 Spitsbergen Treaty negotiated at the Paris Peace Conference.
The key regional decision-making platform is certainly the Arctic Council, which focuses on sustainable development. It determines the balance of the regional and global components of the regime complex and sets the rules for participation and for the behaviour of non-regional actors. The Arctic Council plays a key role as the control centre for the region. Other bodies include regional fishery management organisations, like the Joint Norwegian–Russian Fisheries Commission and the North East Atlantic Fisheries Commission, and scientific institutions, such as the International Arctic Science Committee (IASC), the International Council for the Exploration of the Sea (ICES), the North Pacific Marine Science Organization (PICES), etc.
The nested subregional level is an aggregate of multilateral, bilateral, and cross-border regulating initiatives tackling specific areas in the High North. The bright examples are Barents Euro-Arctic Council, the cooperative mechanisms in the Bering Sea, etc. The non-Arctic nations are legitimate contributors; however, their role in the decision-making is limited, the same as at the regional level.
National component covers the land areas and respective marine Arctic areas that are subject to the sovereignty of the eight Arctic states and their national regimes. These regimes are established independently but, in most cases, are oriented toward norms and regulations of the upper levels of the Arctic regime.
All of these regimes do not present as an organic whole but are consistent with key norms and principles. This, along with an area of applicability, allows them to be considered as components of a single regime complex.
The ARC’s crucial norms reflect the UN foundations including the rule of international law, the UN Charter and other UN documents, a commitment to the peaceful settlement of disputes, respect for sovereignty, and the principle of non-intervention “in matters which are essentially within the domestic jurisdiction” (United Nations, 1945; Vylegzhanin, Reference Vylegzhanin, Spohr and Hamilton2020). All the nations have equal status for contributing to rulemaking and decision-making for the Arctic at this level. However, it is the Arctic Council with the veil of regional and subregional regimes that creates gravity for the ARC’s decision-making. Thus, eight sovereign Arctic countries share the equal and leading role in the Arctic governance (Zagorski, Reference Zagorski, Jakobson and Melvin2016). They also established the norms that shape the ARC’s backbone.
The region-specific norms imply the self-sufficiency of the Arctic regime. Along these lines, in the 2008 Ilulissat Declaration the five coastal states (Canada, Denmark via Greenland, Norway, Russia, and the United States) agreed that the Law of the Sea “provides a solid foundation for responsible management by the five coastal States and other users of this [Arctic] Ocean” and that the coastal states see no need to develop a new comprehensive international legal regime to govern the Arctic Ocean (Danish Ministry of Foreign Affairs, 2008).
Another crucial norm declares the Arctic as a zone of peaceful cooperation. This notion draws on the absence of issues within a region that implies military solutions at any point. Cherishing this fact, the circumpolar nations decided to maintain cooperation in areas of shared concern like the environment and climate disregarding the conflicts in other regions. Institutionally, this was manifested by excluding any security dialogues on the platform of the Arctic Council, leaving these for marginal or bilateral fora. The latter was considered by some experts to be a potentially troublesome decision because it does not provide a mechanism to tackle relations amid controversies (Young & Cherkasov, Reference Young, Cherkasov and Griffiths1992).
Finally, the eight Arctic countries decided to open the Arctic to the world and maintain inclusive cooperation in the region. The foundations for this move were laid within the UN system, as well as through treaties that define the rights and powers of non-regional actors in certain areas. However, ultimately, this issue was formalised by approvals of permanent observer status for non-regional states in the Arctic Council and other regional platforms. China was one of those countries given such status.
Transition of the ARC
As with any regime, the Arctic regime is meant to change due to the new environmental, technological, and political challenges that outline regulatory gaps. The transformations are driven by regional factors such as the growing impact of human activities on local ecosystems and communities, the retreat of sea ice, regional security dynamics, etc., and by global trends such as climate change, global commitment to protect marine biodiversity, global power competition, etc. Regime theory allows the verification of whether those factors have induced any significant alterations. As explained above, the main criteria are shifts in crucial norms and principles.
Most of the observed changes in the ARC present only those amendments that do not result in the core component falling apart. These are agreements and rules that build on and complement the crucial norms and principles of the ARC without changing their substance. In this way, the ARC is efficiently tackling challenges because it holds instruments for decision-making and rulemaking.
For example, the green shift and the decision to apply the precautionary approach on environmental impacts boosted the development of the 2018 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean. This document filled the gap that existed with regard to fisheries in the Central Arctic Ocean, and several non-Arctic countries are parties to the Agreement. Another example is the Polar Code, which represents amendments to SOLAS, MARPOL, and other global instruments. Arctic Council permanent observers, including China, participated in this process, and the adoption of these instruments complied with the ARC’s crucial norms and principles. This fact proved that the ARC was sufficient and viable. The ARC maintains the balance between global and regional legal authority regarding such changes and prescribes clear rules for non-regional actors’ involvement in such amendments. The ARC also actively involves science for keeping up with the most recent knowledge about the Arctic.
Recent political challenges might lead to substantial shifts for the ARC; for example, the decision of the Arctic Seven to suspend all contact with Russia in the High North brings the ARC to a watershed moment (Arctic Council, 2022b). Formally, the impediment to the work of the Arctic Council could be considered a technical one because it complicates operational decision-making but has not had a decisive role in the regime. However, from a regime theory perspective, this is a perilous moment for the ARC. The risk arises first because the key norm of the Arctic as a zone of peaceful cooperation is challenged. Second, the suspension of dialogue between the ARC’s key actors will undermine the core principle of their priority and equal role in decision-making. With no mitigating solution made by the eight Arctic states, the resilience of the entire ARC will be undermined. In the case of aggravated conflict, the ARC’s other core principles and norms, including respect for and compliance with the rule of law set within the UN, could be challenged. This will become a dead-end for the current Arctic regime, and the scenario will play out as a new Cold War in the Arctic where cooperation will be based on ideological blocking (Bertelsen, Reference Bertelsen, Finger and Rekvig2022).
Alternatively, if in the foreseeable future the limited cooperation resumes by the will of the Arctic states, this might slow down the disintegration of the ARC. In this case, the regime complex holds an opportunity for its survival. Regime theory explains the likelihood of such a scenario. In most cases, maintenance of the regime, even if it shows reduced effectiveness, is usually more beneficial than establishing a new regime (Gilpin, Reference Gilpin1981). The actors’ interests, normative continuity, and bureaucratic inertia usually work to allow the regime to maintain its buoyancy, and the amendments tend to appeal to the former templates (Sylvan & Majeski, Reference Sylvan and Majeski2009). In this regard, despite the scepticism about the viability of rule of law in world affairs, we suggest that the Arctic regime has a chance to remain a cornerstone for further international interaction in the region. Such an assumption is also supported by the observation of the continuing emergence of new regimes in the ARC even amid the political rivalry (Young et al., Reference Young, Yang and Zagorski2022).
The above suggests two possible settings for China’s further participation. The first implies the ARC’s survival amid increasing rivalry. This scenario provides opportunities for China to behave within the ARC. The present analysis elaborates on this perspective. The second option is the disintegration of the ARC, which would set principally different terms for China as an Arctic actor. Because this area remains the most speculative, in the conclusion we will draw on a few general lines regarding it basing our arguments on the regime theory approach.
China’s role in the ARC
China was a part of the ARC from the very beginning. This is due to its engagement in the UN system and other global instruments pertinent to the Arctic, as well as a few region-specific international agreements like the 1920 Spitsbergen Treaty. However, only permanent observer status in the Arctic Council granted China full-fledged engagement and desirable legitimate status in the ARC.
Since 2013, China has elaborated on its Arctic policy and rhetoric, and it has declared a willingness to participate in decision-making and in the further framing of the ARC – all in line with what regime theory implies (Liu, Reference Liu, Spohr, Hamilton and Moyer2020). As China subscribed to the existing legal and institutional framework, like other non-regional states, it acquired rights and responsibilities. Further, we provide an overview of China’s place in the ARC as determined at the UN, regional, and subregional levels. It is worth emphasising that the rights and duties that China has in the ARC are not an exception and pertain equally to all countries, while the Arctic states enjoy the wider spectrum of rights, which confers their status in the ARC.
China’s place at the ARC’s global level
The baseline document that sets provisions for China’s involvement in the Arctic is the UNCLOS. It creates the core legal framework for defining the extent of Arctic coastal states’ sovereignty, sovereign rights, and jurisdiction as well as the freedoms and rights of other states, including China (Rainwater, Reference Rainwater2015). The UNCLOS sets the balance of littoral and non-littoral states’ rights and freedoms depending on the maritime zone and the specific types of marine activities, including shipping, fisheries, and the development of the seabed.
Shipping
In terms of freedoms, shipping can be considered the most favourable sector of marine use for China. In the territorial sea (not extending 12 nm from the baseline, normally the low-water line along the coast) China is obliged to abide by the coastal state’s sovereignty, but has the right of innocent passage as long as it does not disturb the peace and security of the coastal state (Art. 17). Beyond the 12-mile limit of the territorial sea as a general rule Chinese vessels or those flying Chinese flags enjoy the freedom of navigation regardless of whether they are in the contiguous zone (Art. 33), the exclusive economic zone (EEZ, Art. 58), or the high seas (Art. 87) (Jiang & Zhou, Reference Jiang, Zhou, Koivurova, Tin, Nykänen and Duyck2017). In addition to this, the regime of transit passage applies to international straits, meaning that China can exercise freedom of navigation and overflight solely for continuous and expeditious transit through the strait in normal modes of operation (Art. 38).
At the same time, China’s shipping rights here are less extensive than in other regions. The unique hazards of polar navigation and the vulnerability of the Arctic environment require exceptions to the general rule. Under Art. 234 of UNCLOS, coastal states are allowed to adopt and enforce specific measures for the prevention, reduction, and control of marine pollution from vessels in “ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of the ice covering such areas for most of the year create obstructions or exceptional hazards to navigation.” Among the Arctic states, Russia and Canada took full advantage of this and adopted national legislation providing special requirements for shipping through the Northern Sea Route and the Northwest Passage, respectively (Byers, Reference Byers2013; Klyuev, Reference Klyuev2013; Onarheim & Årthun, Reference Onarheim and Årthun2017). In particular, they require other states to seek permission before entering these waters, including the straits (Ministry of Transport of the Russian Federation, 2013). China is one of the most active users of the Northern Sea Route among non-Russian flag states, and so far Chinese ships have adhered to these rules, thus setting aside possible discussions on China’s interpretations of UNCLOS in contrast to Russia’s interpretation (Zagorskii, Reference Zagorskii2016). However, the retreat of sea ice in the Arctic will challenge the applicability of Art. 234 (Young, Reference Young2016) and will raise new questions about Russia and China’s further approaches to these regulations.
Fisheries
Within 200 nautical miles from shore, i.e. in internal waters, the territorial sea (Art. 21), and the EEZ (Art. 56), China is obliged to respect coastal states’ exclusive rights and jurisdiction to regulate fishing. A coastal state may adopt and enforce rules for the exploitation and conservation of living resources, including determining allowable catches and the distribution of quotas. At the same time, China enjoys the freedom of fisheries (Art. 87) in large areas of the high seas in the Arctic Ocean. This includes the Arctic ocean’s central part beyond the coastal states’ EEZs and the two areas between the EEZs of adjacent states – namely the “Loophole” between Russia’s and Norway’s EEZs in the Barents Sea and the “Donut hole” in the Bering Sea between the EEZs of the US and Russia. However, almost all these parts are subject to special regional management regimes, providing for conservation measures aimed at ensuring that the stocks are not overexploited (Byers, Reference Byers2013).
Exploitation of seabed natural resources
As far as the continental shelf (CS) is concerned, China is limited in its ability to develop mineral resources. As in the case of fisheries, a coastal state retains absolute rights over seabed resources located within 200 nautical miles from shore. Farther out the institution of the CS embedded in the UNCLOS in some cases grants coastal states sovereign rights and jurisdiction over exploration and exploitation of the seabed natural resources beyond the limit of 200 nautical miles (Art. 76). It is the coastal state that decides whether or not to grant access to a particular foreign state, regulates the licensing process, sets out the conditions for the development of natural resources, etc. Canada, Denmark/Greenland, Norway, and Russia have made submissions to the CLCS (with a Chinese national being a current member, although acting in a personal capacity) (Commission on the Limits of the Continental Shelf, 2022) to claim extensions of the CS in the Arctic. Should they receive positive recommendations from the CLCS, most of the Arctic Ocean seabed would be under the coastal states’ jurisdiction (Lodge, Reference Lodge, Wasum-Rainer, Winkelmann and Tiroch2012).
China will obtain equal rights to develop resources in the so-called Area in the Arctic after the coastal states establish their extended CS (which will not happen in the short term due to the CLCS’ work overload). The Area is “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (Art. 1 (1) of UNCLOS)(International Seabed Authority, 2010; United Nations, 1982). UNCLOS declares that the Area and its resources are the common heritage of mankind, equally open to exploration and exploitation by non-littoral and coastal nations alike. At the same time, states and entities may explore and exploit mineral resources in the Area only through the International Seabed Authority (ISA) and the mechanisms adopted by the ISA. Notably, China is one of the most active stakeholders in the ISA. The China Ocean Mineral Resource R&D Association has joined the list of the few companies permitted to explore minerals in the Area, and the company has exclusive rights for mining in the Area parts of the Atlantic, Pacific, and Indian oceans (China Ocean Mineral Resource R&D Association, 2013). Being interested in development, China takes part in the process of setting preliminary rules and coordinating mining and exploration (International Seabed Authority, 2022).
China’s place at the ARC’s regional and subregional levels
Although at the highest political level China has only recently demonstrated interest in enhanced involvement in Arctic affairs, the country has been a party to some of the regional instruments for a long time. Specifically, China signed the Spitsbergen Treaty on July 1, 1925, to become one of its first contracting parties (Qin, Reference Qin2015). For Beijing, the Treaty plays a central role in the justification of its presence in the Arctic, and China has attached great importance to non-discriminatory rights under the Treaty (Molenaar, Reference Molenaar2014). Under the Treaty, China recognises the full and absolute sovereignty of Norway over the archipelago but acquires certain equal liberties and rights. According to the document, China has the right to fish and hunt on the land and in the territorial waters of Svalbard, the right to mine and conduct other commercial activities, as well as equal liberty of access and entry to the waters for any reason or object subject to local laws and regulations (Art. 2, 3) (Government of the French Republic, 1920). Chinese citizens have the right to live in the archipelago and conduct scientific activities. The latter was realised with the launching of the research station “Yellow River” in 2004 (Jiang & Zhou, Reference Jiang, Zhou, Koivurova, Tin, Nykänen and Duyck2017).
Since its adoption, the Spitsbergen Treaty has faced serious challenges. While Norwegian sovereignty over the territory and territorial waters of Spitsbergen is widely recognised, since the late 1970s a dispute between the parties has arisen as to the Treaty’s applicability to the maritime areas beyond Spitsbergen’s territorial waters. Norway has been insisting that the provisions of the Treaty do not apply to the maritime areas beyond the territorial waters (Churchill & Ulfstein, Reference Churchill and Ulfstein2010) and that in these maritime areas it is entitled to the normal rights of a coastal state under contemporary international law (Anderson, Reference Anderson2009). Many signatories expressed their disagreement with the Norwegian approach (Pedersen, Reference Pedersen2008).
China has not been explicit in this regard (Pedersen, Reference Pedersen2008; Qin, Reference Qin2015). However, China has not avoided some open disagreements with Norway on yet another issue – the regime of scientific activities on the archipelago. In 2016 Norway introduced a research strategy for Ny-Ålesund – the settlement where permanent research stations from ten countries are located. Among other things, the Norwegian strategy implied that the research would be limited to natural sciences and be published in English. These plans triggered protests in China. The Chinese Polar Institute pointed out that the country will continue to exercise its rights under the Treaty and conduct scientific research in whatever field it wishes, including social sciences. The Chinese representative also claimed that the language requirement related to research was “discriminatory” (Voskresenskiy, Reference Voskresenskiy2019).
In addition to this, while not being a party to other legally binding regional agreements, China enjoys the right to stand in as a third party involved by one of the signatory states. Namely, China can be a non-party able to contribute to interactions regulated by agreements on Cooperation on Search and Rescue in the Arctic, Marine Oil Pollution Preparedness and Response in the Arctic, and Enhancing International Arctic Scientific Cooperation (Arctic Council, 2011, 2013a, 2017).
In the ARC’s regional decision-making, China’s role primarily stems from its permanent observer status in the Arctic Council. In 2013, China became one of the thirteen other permanent observers. With that, China recognised the Arctic regime, i.e. the status-quo of the Arctic states and the sufficiency of the legal regime applied to the Arctic (Arctic Council, 2002).
The long record of China’s engagement in the Arctic Council is thoroughly investigated in the literature (Kobzeva, Reference Kobzeva2019, Reference Kobzeva2020). What makes this case special is by no means the fact of the involvement of a country from outside the region. China also does not play any special role in the forum because it has no legitimate options to do so. According to the Arctic Council’s rules, China may make statements only at the discretion of the chair, and only after the Arctic States and Permanent Participants have made their statements. As an observer, China’s representatives sit at a separate table and contribute only to working and expert groups. Observers are not entitled to participate in the decision-making process or to propose projects independently, and total financial contributions from all observers to any given project may not exceed the financing from Arctic States (Arctic Council, 2013b).
China was not active in this stringent framework (Jiang & Zhou, Reference Jiang, Zhou, Koivurova, Tin, Nykänen and Duyck2017). The value of the Arctic Council for China is that it did provide the state with a recognised status as a legitimate stakeholder and the opportunity to observe the decision-making process. To compensate for the lack of voice there, China actively used alternatives such as Arctic Frontiers, “The Arctic: Territory of Dialogue Forum,” and the Arctic Circle. In recent years, China has had a salient presence on these platforms with its high officials and major companies like COSCO and CNPC being invited to speak. These venues gave China a chance to declare new concepts like a “Near-Arctic State” or the Polar Silk Road (Government of China, 2018). China also entered into or launched international initiatives able to affect Arctic science cooperation. This includes several laboratories in Nordic countries, joint scientific forums with Nordic states like CNARC, and collaboration with Japan and South Korea in the Asian Forum for Polar Sciences (Tonami, Reference Tonami2016). The latter became a part of many international organisations in the Arctic.
In addition to its Arctic Council work, China is engaged in global and regional instruments designed to regulate specific Arctic activities. Being a major shipbuilding state and shipowner, China is an important stakeholder in Arctic shipping and rulemaking within the IMO (Eiterjord, Reference Eiterjord2020). China’s support for the Polar Code is emphasised in a white paper saying that China “abides by the [Polar Code] and supports the [IMO] in playing an active role in formulating navigational rules for the Arctic” (The State Council of the People’s Republic of China, 2018). As an IMO member, China can significantly contribute to the broader goal of keeping vessels that violate the Polar Code away from the region. For instance, this could be done by exercising control over its own ships and also by taking part in the Port State Control (PSC) cooperation. The positive effect of the PSC is based on coordination between regional states. Coastal countries conduct inspections aimed at identifying substandard ships in their ports. As the number of ships coming to the Arctic from the Pacific region is growing, China’s involvement with the regional PSC scheme – the Tokyo Memorandum of Understanding – is crucial (Todorov, Reference Todorov2020).
In addition, as a non-coastal state China has a chance to contribute to subregional fisheries mechanisms, and China is present in a number of regional and subregional fisheries instruments. In particular, China is an observer of the 1994 Convention on the Conservation and Management of the Pollock Resources in the Central Bering Sea, which manages fisheries in the Donut hole. Moreover, taking into account that China is an important distant-water fishing state with a “real interest” in potential fishing in the Central Arctic Ocean (Liu, Reference Liu, Spohr, Hamilton and Moyer2020), it was invited, alongside the EU, Iceland, Japan, and South Korea, to negotiate the 2018 Fisheries Agreement and eventually became its equal party. This instrument imposes a ban on unregulated commercial fishing and sets out a scientific programme for improving the understanding of whether fish stocks might exist in this area that could be harvested on a sustainable basis. The Agreement envisions the possibility that a regional fisheries management organisation may be established for this area in the future (Government of Canada, 2018).
Opportunities for China’s further engagement in the Arctic regime complex
The ARC is a favourable environment for Chinese politics, and due to the regime complex’s clear rules, China managed to develop its presence in the region and establish relations with all Arctic states (Kobzeva, Reference Kobzeva2019). As the analysis above shows, China does not have the capacity to induce changes in crucial norms and principles in the ARC. At the same time, as an important legitimate Arctic stakeholder, China is eligible to strengthen its role by addressing specific regulatory gaps that still have flexible legal regulations. There are several unaddressed gaps in the ARC due to technological and environmental challenges. There is also a pressing need for new approaches to these challenges. This implies extensive cooperation between the Arctic actors, with sharing of expertise and knowledge for rules and for improvements in procedures. We outline several areas and approaches where China’s contribution can be salient. We also assume that such an engagement may induce positive amendments for the ARC.
Increased involvement in ecosystem-based management policies in the Arctic
In our view, the most suitable opportunities for China in this regard are linked to the current global trend of reframing ocean management. China is interested in Central Arctic Ocean development in the future, including shipping, fishing, and other activities because this will be a marker for its independent Arctic competence. But even if turning into a capable polar power that can manage activities in the Central Arctic Ocean, China will still depend on the Arctic states’ good relations, sharing of data, and coordination of efforts due to their adjacent geography and the severe conditions of the High North (Kobzeva, Reference Kobzeva, Finger and Rekvig2022).
Although the ARC is comprehensive and stable enough, it is challenged by jurisdictional and sectoral fragmentation inherited from the traditional global legal framework (Young, Reference Young2016). As anthropogenic pressure and threats stemming from climate change increase, traditional marine management is widely considered insufficient and ineffective (Long, Charles, & Stephenson, Reference Long, Charles and Stephenson2015).
The amendments may be made separately, addressing each particular issue, like shipping or fishing, or they can blend into a framework approach. In the case of ocean management, a promising conception has emerged that prescribes the replacement of conventional sectoral regulation of different maritime activities with a holistic approach known as Ecosystem-Based Marine Management (EBM)(Elliott, Reference Elliott2014; Long et al., Reference Long, Charles and Stephenson2015). EBM is an area-based approach focusing on a specific ecosystem and the range of human activities affecting it, rather than considering single industries or species in isolation. This entails cross-boundary and cross-sectoral regulation of all types of economic activity in certain sea areas where such activities might result in negative impacts on the marine environment (Katsanevakis et al., Reference Katsanevakis, Stelzenmüller, South, Sørensen, Jones, Kerr, Badalamenti, Anagnostou, Breen, Chust, D’Anna, Duijn, Filatova, Fiorentino, Hulsman, Johnson, Karageorgis, Kröncke, Mirto and Hofstede2011).
Although the Arctic Council has tried to integrate EBM in its work (Arctic Council, 2013c), the most recent and significant effort to set out a comprehensive legal framework for EBM came from the global level. The UN launched negotiations on a possible new UNCLOS-implementing agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (the BBNJ Agreement). The BBNJ negotiating process seems to be leaning towards the so-called “hybrid” model for the agreement, and this implies that a global institution to be established by the BBNJ (Conference of Parties) will be empowered with substantial functions. At the same time, relevant regional and global sectoral bodies would maintain their important role in ocean management in areas beyond national jurisdiction (ABNJ). Moreover, regional bodies will be required to increase cooperation with regard to implementing EBM, with such instruments as a designation of marine protected areas, etc. (Papastavridis, Reference Papastavridis2020).
This will be also relevant for the Arctic Ocean, which spans across various marine areas with different legal regimes, including vast ABNJ. Given that China, as well as any other non-Arctic state, enjoys certain freedoms and rights in ABNJ described in the previous section, any EBM-related measures in the Arctic Ocean will involve China. Perhaps one of the key legal questions in this regard will be how to secure the implementation of regional EBM by China and other third countries, given that this could entail significant restrictions on their freedoms and rights in ABNJ. The most viable solution is a higher level of engagement of non-regional states in Arctic affairs (Balton & Zagorski, Reference Balton and Zagorski2020). For the Arctic states, this means the need to find new ways to enhance the coordination of regional policies related to EBM in close collaboration with non-regional actors. Along these lines, Arctic states will benefit from inviting China as one of the main non-regional stakeholders to regional initiatives.
This enhanced engagement of China could take different forms. The Arctic states could involve China along with other countries in elaborating joint proposals with regard to the designation of marine protected areas and implementing EBM tools that subsequently require coordination with global sectoral organisations (such as ISA or IMO). This will facilitate gaining the necessary level of approval in the latter. Another option would be to further engage China in regional incentives directly, where they do not need approval by global organisations, as has been the case with the 2018 Fisheries Agreement.
Enhanced scientific contribution
The sphere of scientific research cooperation management presents several urgent gaps. One area regards the knowledge of the Arctic Ocean, which is in many ways still rudimentary and largely uncoordinated (Balton & Zagorski, Reference Balton and Zagorski2020). Other areas include rules of conduct for research connected with issues of a dual-use potential, as well as ethical standards for data sharing and science cooperation. These issues seem even more pressing amid the escalated discord between Russia and other Arctic states (Rentetzi, Reference Rentetzi2022). Although some of these problems are closely related to EBM, there is no unified approach to these problems. This suggests the need to elaborate on the new regulations by involving all the Arctic actors. In the long view, such amendments may include important notions that are able to supplement the ARC’s crucial principles, so long as they are approved by the key actors.
China has several instruments to contribute to the ARC amendments in science regulations. China is eligible to build on its legal argumentation on the Spitsbergen Treaty provisions and the 2017 Agreement on Enhancing International Arctic Scientific Cooperation, which facilitates access to scientists and equipment and recognises the importance of continuing engagement by non-Parties (Shibata, Reference Shibata, Shibata, Zou, Sellheim and Scopelliti2019). As a member of different international fora, China can be active in the Ny-Ålesund Science Managers Committee, the North Pacific Marine Science Organization (PICES), the non-governmental International Arctic Science Committee, and the Arctic Science Ministerial. All of the above provide the chance for China to negotiate and be heard.
In addition to the above, some experts believe that the existing research institutions do not fill the gap in the regulation of scientific activities in the Arctic. In this regard, they advocate the establishment of a new body specifically for the Arctic Ocean. China could acquire membership in such a body by demonstrating transparency and openness to cooperation – the behaviour patterns that are relevant for further ARC development. One of the options here could be China’s substantial scientific research in the Central Arctic Ocean relating to EBM and managing its results in line with desired regulations for the Arctic (Balton & Zagorski, Reference Balton and Zagorski2020).
Raising china’s role as an Arctic council observer
China’s contribution to the above developments for the ARC will consolidate its position as a responsible Arctic stakeholder. This would necessarily affect the issue of China’s restricted capacities in the Arctic Council, which is the ARC’s crucial platform. As we noted above, China is dissatisfied with its current limited role as an Arctic Council observer. The Arctic Council has a sizable pool of observers much exceeding the number of its members and Permanent Participants. However, the Arctic states’ fear of surrendering too much influence over Arctic Council activities to non-members narrows the Arctic Council’s potential to adapt to a new global environment (Balton & Ulmer, Reference Balton and Ulmer2019). The lack of an approach or framework to use the observers’ potential for strengthening the ARC undermines the regime complex’s congruence. In the case of the Arctic Council stumbling as it is today, the observers have no legitimacy to help find the way out. With no mitigating solution among the Arctic states, all the observers’ achievements in the Arctic Council remain irrelevant. For non-Arctic states, this negates the Arctic Council’s value as a crucial regional platform.
The measures that could comply with the existing Arctic Council rules and be relevant for better involvement of observer states may include their contributions in discussions to frame joint positions on the key issues in the ARC global and regional components (i.e. observers’ increased participation in decision-making). Another possibility includes financial, scientific, and technological contributions to Arctic collaboration for the purposes of EBM. A complementary instrument for improved transparency may include a regular review of observers’ activities and conducting Arctic Council workshops in observer states. China’s potential in all of these areas could be a valuable asset to Arctic actors and might strengthen the country’s position in the ARC (Balton & Ulmer, Reference Balton and Ulmer2019).
The ARC’s perilous moment
So far, Chinese officials have abstained from comments regarding the Arctic Council’s pause. Against the backdrop of the strategic partnership with Russia and escalation with Washington, China maintains its neutral approach towards any problematic situations in the High North (Ministry of Foreign Affairs of the People’s Republic of China, 2022). At the same time, Chinese Arctic affairs are being notably obstructed by the COVID-19 pandemic and the continuing zero-tolerance politics toward the virus spread. Most of the worthwhile international Arctic events are cancelled within China or run with no substantial Chinese participation abroad (China-Nordic Arctic Research Center, 2022).
The wait-and-see juncture does not eliminate Chinese Arctic activities and research (Polar Research Institute of China, 2022). The interest in future participation in Arctic development remains high in the Chinese expert discussion, yet with no certainty on the ways for this to be done. So far, scholars tend to follow the forbearance line. The observations of the ARC’s possible split suggest the emergence of new regimes and structures, likely supplementing the Arctic Council (Xiao, Reference Xiao2022). In this light, the experts mention new opportunities for China to show its consistency in the Arctic. This implies cooperation with the partners in Europe, the US, and Russia while promoting a constructive approach to the Arctic issues, including in the Arctic Council and in the security sphere (Xu, Reference Xu2022).
Conclusion
The regime theory clarifies that within the current ARC, China has no opportunity to make a critical change in the regime’s norms and principles, and thus, the country is not a threatening factor to it. This explains China’s compromising and low-key behaviour in the Arctic in the long term. The Arctic regime established a predictable environment for China. Within the ARC’s framework, China obtained a legitimate status that allows participation in regional rulemaking, both through global and regional institutions. Promising fields for China’s rulemaking for the Arctic are management of the shipping and fishing in high seas areas, and potentially the development of deep-seabed mineral resources in the Area. The implementation of EBM tools in the Arctic and the related need for enhanced scientific knowledge about the Arctic Ocean could be another notable chance for China to increase its role in Arctic affairs. Nevertheless, to come into force these amendments should be shared by the eight Arctic countries and thus may only have a secondary effect on the ARC’s development.
In the current circumstances, the authors discern a disturbing trend in the pause of the work of the Arctic Council, a key regional organisation. As this article explains, further escalation of the conflict between the Scandinavian and North American Arctic states on the one side and Russia on the other side is fraught with the risk of undermining the fundamental norms and principles of the ARC. This may lead to a true shift of the ARC.
China may remain interested in keeping its place in the Arctic regime in order to secure its recognised legitimate status in the Arctic Council even in the case of the partial fade out of the ARC. However, if the political rivalry leads to the expulsion of China or de facto obstructs the cooperation with China in the ARC, this will have negative reputational and political effects in Beijing. The overall decay of regimes composing the ARC will decrease motivations for China to contribute to their development and will raise the issue of initiating alternative regimes that may be based on norms and principles different from the ARC’s. Such regimes should be able not only to tackle pressing issues of Arctic development but also to reconfirm China’s legitimate status as an Arctic actor. The opportunities for that can unfold in China’s bilateral relations with Arctic nations, including Russia, and non-regional actors. In this framework, China may obtain new opportunities for promoting its rights and interests in the Arctic.
Financial support
This research received no specific grant from any funding agency, commercial or not-for-profit sectors.
Competing interests
The authors declare none.
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