¹ On the legalization of war — including in terms of international humanitarian law (IHL) — see David Kennedy, Of War and Law (Princeton, NJ: Princeton University Press, 2006). Though for a view suggesting that the legalisation paradigm can be misleading, see Waters, Christopher, “Beyond Lawfare: Juridical Oversight of Western Militaries” (2009) 46 Alberta Law Review 885.CrossRefGoogle Scholar

² United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3, Article 13(1).

³ A formal commitment was made by Arctic nations in the Ilulissat Declaration, 29 May 2008, online: <http://www.oceanlaw.org/downloads/arctic/Ilulissat_Declaration.pdf> .

⁴ Canada, Statement on Canada’s Arctic Foreign Policy 2010: Exercising Sovereignty and Promoting Canada’s Northern Strategy Abroad, online: Department of Foreign Affairs and International Trade <http://www.international.gc.ca/polar-polaire/assets/pdfs/CAFP_booklet-PECA_livret-eng.pdf> [Canada’s Arctic Foreign Policy].

⁵ Ibid at 3, 10.

⁶ Penny, Christopher, “International Humanitarian Law and the Arctic,” online: <http://ccil-ccdi.squarespace.com/ccil-conference-papers/2010/> at 2.+at+2.>Google Scholar

⁷ Rob Huebert called attention to the continuing military expansion in the region. Huebert, Rob, The Newly Emerging Arctic Security Environment (Calgary: Canadian Defence and Foreign Affairs Institute, 2010).Google Scholar

⁸ See Kraska, James, “From Pariah to Partner: Russian-American Security Cooperation in the Arctic Ocean” (2009) 16 ILSAJ Int’l & Comp L 517 at 525–26;Google Scholar Trenin, Dmitri and Baev, Pavel, The Arctic: A View from Moscow (Moscow, Russian Federation: Carnegie Endowment for International Peace, 2010) at 9.Google Scholar

⁹ Huebert, supra note 7 at 9-12.

¹⁰ Ibid at 20-22.

¹¹ Schiller, Bill, “China Warming Up to Be an Arctic Player,” Toronto Star (1 March 2010), online: <http://www.thestar.com/news/world/china/article/773148--china-warming-up-to-be-an-arctic-player>.Google Scholar

¹² Canada’s Arctic Foreign Policy, supra note 4 at 5–7. This policy trend is also evident in the Canada First Defence Strategy (May 2008) at 6, online: Department of National Defence <http://www.forces.gc.ca/site/pri/first-premier/June18_0910_CFDS_english_low-res.pdf> : “[C]hanges in the Arctic could also spark an increase in illegal activity, with important implications for Canadian sovereignty and security and a potential requirement for additional military support.”

¹³ See Department of National Defence, Operation Nanook 2011, online: Department of National Defence <http://www.forces.gc.ca/site/feature-vedette/2011/08/nanook11/index-eng.asp>.

¹⁴ Maloney, Jill, “In the Arctic, Canada Willing to Fight to Keep the True North Free,” Globe and Mail (25 January 2011), online: <http://www.theglobeandmail.com/news/politics/in-the-arctic-canada-willing-to-fight-to-keep-the-true-north-free/article1881683/>.Google Scholar Interestingly, the poll also revealed that more Canadians were willing to take a strong stance on defending the North than their American counterparts.

¹⁵ This role was analyzed specifically for the Canadian Navy in Office of the Judge Advocate General, “The Operational Legal Challenges of Naval Operations in Canada’s Arctic Waters,” Strategic Legal Papers Series Issue 3, online: Department of National Defence <http://www.forces.gc.ca/jag/publications/oplaw-loiop/slap-plsa-3/index-eng.asp>. Although this article conducted an extensive analysis of security concerns and corresponding operations in Arctic waters, it did not mention any IHL-related issues in the event tensions were to escalate.

¹⁶ Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, 10 December 1976, 1108 UNTS 151, Article 1 [ENMOD].

¹⁷ Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd edition (Cambridge: Cambridge University Press, 2010) at 199.CrossRefGoogle Scholar

¹⁸ Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 12 December 1977, 1125 UNTS 3, 16 ILM 139 [Additional Protocol I].

¹⁹ Ibid, Article 35(3).

²⁰ Ibid, Article 55.

²¹ Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Articles 31-32.

²² See, for example, Bothe, Michael, Partsch, Karl Josef, and Solf, Waldemar A, New Rules for Victims of Armed Conflict: Commentary on the Two Protocols Additional to the Geneva Conventions of 1949 (Leiden: Martinus Nijhoff Publishers, 1982) at 346.CrossRefGoogle Scholar

²³ This terminology, found in the preparatory work to Additional Protocol I, supra note 18, was highlighted in Hulme, Karen, War Torn Environment: Interpreting the Legal Threshold (Leiden: Martinus Nijhoff Publishers, 2004) at 20.CrossRefGoogle Scholar

²⁴ International Committee of the Red Cross (ICRC), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Dordrecht: Martinus Nijhoff, 1987) at para 1452, online: <http://www.icrc.org/ihl.nsf/COM/470-750044?OpenDocument>.

²⁵ See “Understandings Regarding the Convention [ENMOD],” in Report of the Conference of the Committee on Disarmament, UNGAOR, 31st Sess, Supp No 27, vol 1, UN Doc A/31/27 (1976) at 91-92 [ENMOD Understandings]; Bothe, Partsch, and Solf, supra note 22 at 348.

²⁶ ENMOD, supra note 16 [emphasis added].

²⁷ Hulme, supra note 23.

²⁸ ENMOD Understandings, supra note 25 at 91.

²⁹ Hulme, supra note 23 at 89-90.

³⁰ Wyatt, Julian, “Law-Making at the Intersection of International, Environmental, Humanitarian and Criminal Law” (2010) 59 IRRC 593 at 624.Google Scholar

³¹ Additional Protocol I, supra note 16, Article 55(1).

³² Ibid.

³³ Hulme, Karen, “Taking Care to Protect the Environment against Damage: A Meaningless Obligation?” (2010) 92 IRRC 879 at 680–81.Google Scholar

³⁴ See Schmitt, Michael N., “Green War: An Assessment of the Environmental Law of International Armed Conflict” (1997) 22 Yale J Int’l L 1 at 74–75.Google Scholar

³⁵ Henckaerts, Jean-Marie and Doswald-Beck, Louise, Customary International Humanitarian Law, volume 1 (Cambridge: Cambridge University Press, 2005),CrossRefGoogle Scholar Rule 45. However, the study notes that the United States and United Kingdom continue to object to its application to the use of nuclear weapons specifically.

³⁶ Office of the Judge Advocate General, Law of Armed Conflict at the Operational and Tactical Levels (Ottawa: Department of National Defence, 2001) at 53.

³⁷ See Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, Article 8(2)(b)(iv).

³⁸ For arguments that this area of law is insufficiently restrictive, see Roberts, Adam, “The Law of War and Environmental Damage,” in Austin, Jay and Bruch, Carl E, The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (Cambridge: Cambridge University Press, 2000) 47.CrossRefGoogle Scholar

³⁹ Doswald-Beck, Louise, ed, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, International Institute of Humanitarian Law (Cambridge: Cambridge University Press, 1995), Article 44 [San Remo Manual]. The text of the manual is also available online: International Committee of the Red Cross <http://www.icrc.org/eng/resources/documents/misc/57jmst.htm>.CrossRefGoogle Scholar The British defence manual describes the San Remo Manual as “a valuable reference work.” UK Ministry of Defence, Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004) at para 13.2. More generally, the British defence manual's chapter on maritime warfare (chapter 13) broadly relies on the San Remo Manual as authoritative on customary international law principles.

⁴⁰ San Remo Manual, supra note 39, Article 44.

⁴¹ Ibid at 84.

⁴² This is alluded to in Hulme, supra note 33 at 686.

⁴³ San Remo Manual, supra note 39, Rule 44.

⁴⁴ Aldrich, George H, “Customary International Humanitarian Law: An Interpretation on Behalf of the International Committee of the Red Cross” (2005) 76 BYIL 515.Google Scholar

⁴⁵ Arctic Monitoring and Assessment Programme (AMAP), AMAP Assessment Report: Pollution Issues (Oslo: Arctic Monitoring and Assessment Programme, 1998) at 117, online: <http://amap.no/>.

⁴⁶ Ibid.

⁴⁷ Ibid at 118.

⁴⁸ Ibid at 128.

⁴⁹ For discussion of the variability of the environment across the region, see ibid at 9-23.

⁵⁰ A detailed analysis of the unique pollution dynamics in the Arctic is provided by Eiliv Steinnes, “Pathways and Effects of Contaminants in the Arctic,” in Woodin, Sarah J and Marquiss, Mick, eds, Ecology of Arctic Environments, British Ecological Society (Oxford: Blackwell Science, 1997) 209.Google Scholar

⁵¹ Canadian Arctic Contaminants Assessment Report II, volume I (Ottawa: Indian and Northern Affairs Canada, 2003) at 16; Arctic Monitoring and Assessment Programme, AMAP Assessment 2009: Persistent Organic Pollutants (Oslo: Arctic Monitoring and Assessment Programme, 2009), online: <http://amap.no/>.

⁵² See, eg, Jenssen, BM, “Effects of Environment Changes and Pollution on Arctic and Antarctic Organisms,” Part A: Molecular and Integrative Physiology (2010) 157 Comparative Biochemistry and Physiology S40-S41.Google Scholar

⁵³ AMAP, supra note 45 at 118.

⁵⁴ Kondratyev, K Ya, Krapivin, VF, and Phillips, GW, “Arctic Basin Pollution Dynamics,” in Bobylev, Leonid P, Kondratyev, Kirill Ya, and Johannessen, Ola M, eds, ArcticEnvironment Variability in the Context of Global Change (Chichester, UK: Praxis Publishing, 2003) 309 at 309–10.Google Scholar

⁵⁵ National Research Council, Cumulative Environmental Effects of Oil and Gas Activities on Alaska’s North Slope (Washington, DC: National Academies Press, 2001) at 5.

⁵⁶ See, eg, Walsh, John E, “Climate of the Arctic Marine Environment” (2008) 18:2 Ecological Applications AMBIGUOUS (188 citations)CrossRefGoogle Scholar S3; Chapin, F Stuart III et al, “Responses of Arctic Tundra to Experimental and Observed Changes in Climate” (1995) 76:3 Ecology 694.10.2307/1939337CrossRefGoogle Scholar

⁵⁷ Chance, Norman A and Andreeva, Elena N, “Sustainability, Equity and Natural Resources in Northwest Siberia and Arctic Alaska” (1995) 23:2 Ecology 217 at 229.Google Scholar

⁵⁸ Discussions have centred around improving overall capabilities of ships to operate in Arctic waters. See United States Arctic Research Commission (USARC), The Arctic Ocean and Climate Change: A Scenario for the US Navy (Arlington, VA: USARC, 2002) at 15, online: <http://www.arctic.gov/publications/arctic_and_climate_change.pdf>.

⁵⁹ AMAP, supra note 45 at 661.

⁶⁰ Dean, Thomas A and Jewett, Stephen C, “Habitat-Specific Recovery of Shallow Subtidal Communities Following the Exxon Valdez Oil Spill” (2001) 11:5 Ecological Applications 1456.10.1890/1051-0761(2001)011[1456:HSROSS]2.0.CO;2CrossRefGoogle Scholar

⁶¹ AMAP, supra note 45 at 671-72.

⁶² Paine, RT et al, “Trouble on Oiled Waters: Lessons from the Exxon Valdez Oil Spill” (1996) 27 Ann Rev Ecology & Systematics 197 at 227.10.1146/annurev.ecolsys.27.1.197CrossRefGoogle Scholar

⁶³ Torrice, Michael, “Science Lags on Saving the Arctic from Oil Spills” (2009) 325 Science 1335.10.1126/science.325_133519745129CrossRefGoogle Scholar

⁶⁴ Ibid.

⁶⁵ Short, Jeffrey and Murray, Susan, “A Frozen Hell” (2011) 472 Nature 162 at 162–63.10.1038/472162a21490650CrossRefGoogle Scholar

⁶⁶ USARC, Advancing Oil Spill Response in Ice-Covered Waters (Arlington, VA: USARC, 2004), online: <http://www.arctic.gov/publications/oil_in_ice.html>.

⁶⁷ Department of National Defence, “Operation Nanook Reaches Successful Conclusion,” News Release (30 August 2010), online: Government of Canada <http://www.forces.gc.ca/site/news-nouvelles/news-nouvelles-eng.asp?cat=00&id=3521>.

⁶⁸ AMAP, AMAP Assessment 2009: Radioactivity in the Arctic (Oslo: AMAP, 2009), online: <http://amap.no/>.

⁶⁹ See Arctic Council, “Arctic Monitoring and Assessment Programme (AMAP),” online: Arctic Council <http://www.arctic-council.org/index.php/en/amap>.

⁷⁰ Arctic Climate Impact Assessment (ACIA), Arctic Climate Impact Assessment (Cambridge: Cambridge University Press, 2005), online: <http://www.acia.uaf.edu/>.

⁷¹ See Arctic Council, “PAME: Protection of the Arctic Marine Environment,” online: Arctic Council <http://www.arctic-council.org/index.php/en/pame>.

⁷² Canada’s Arctic Foreign Policy, supra note 4 at 5.

⁷³ For example, it has been suggested that “[a]n absolute ban on environmental damage caused by military operations is inconceivable. War by definition is a ‘no holds barred affair.’ Thus, the real issue is how best to minimize the environmental impact of military operations without constraining the military commander with policies that have little chance of serious consideration in wartime. But most importantly, we must not create uncertainty or risk aversion in the minds of our commanders regarding environmental considerations that could be exploited by their adversaries.” See Wright, William H, “Naval Warfare and the Environ-ment,” in Grunawalt, Richard, King, John E, and McClain, Ronald S, eds, Protection of the Environment during Armed Conflict and Other Military Operations (Newport, RI: US Naval War College, 1996) 35 at 35.Google Scholar

⁷⁴ San Remo Manual, supra note 39, Article 11.

⁷⁵ For a discussion of the need to preserve the distinct Arctic marine ecosystem in the face of ongoing challenges, see, eg, Arctic Council, Arctic Marine Strategic Plan (24 November 2004) at 5-7, online: <http://www.pame.is/images/stories/AMSP_files/AMSP-Nov-2004.pdf>. At the same time, it should be recognized that the Arctic is not the pristine environment portrayed in the popular imagination. The Arctic is not immune from much of the pollution and resource degradation experienced in other parts of the world. As David Carron has noted, there are various images regarding the current and future state of the Arctic. It is at once an impassable and remote area, a ring of water where nations focus on bilateral relations, or a semi-enclosed area with increasing activity and governance challenges (as well as what might be considered symbolic militarization). See Caron, David D, “Politics, Law and Three Images of the Arctic,” in Proceedings of the 102nd Annual Meeting of the American Society of International Law, Washington, 2008 (Washington: ASIL, 2008) 157 at 158.Google Scholar Considering any of these images independently does not truly address the extent to which the political and legal landscape is changing. The first image of the Arctic as an impassable area will never be eliminated, but critically evaluating all other images will be necessary to understanding the role of law in the region.

⁷⁶ Canadian Arctic Contaminants Assessment Report II, supra note 51 at 16.

⁷⁷ Watt-Cloutier, Sheila, “Bringing Inuit and Arctic Perspectives to the Global Stage: Lessons and Opportunities,” in van Everdingen, Robert O, ed, Proceedings of the Fourteenth Inuit Studies Conference, Calgary, 2004 (Calgary: Arctic Institute of North America, 2004) 301 at 302, online: <http://pubs.aina.ucalgary.ca/aina/14thiscproceedings.pdf>.Google Scholar

⁷⁸ Ibid.

⁷⁹ Ibid.

⁸⁰ United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 61st Sess, Supp No 53, UN Doc A/RES/61/295 (2007) [UNDRIP].

⁸¹ “Canada Endorses Indigenous Rights Declaration,” CBC News (12 November 2010), online: CBC News <http://www.cbc.ca/news/canada/story/2010/11/12/indigenous-declaration.html>.

⁸² UNDRIP, supra note 80, Article 30.

⁸³ Aboriginal Affairs and Northern Development Canada, Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples (12 November 2010), online: <http://www.ainc-inac.gc.ca/ap/ia/dcl/stmt-eng.asp>.

⁸⁴ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996] ICJ Rep 226 at 242.

⁸⁵ Additional Protocol I, supra note 18, Article 57.

⁸⁶ Schmitt, supra note 34 at 56.

⁸⁷ See Schmitt, supra note 34 at 54. For a critical discussion of the predominance of military necessity in IHL, see generally Jochnick, Chris and Normand, Roger, “The Legitimation of Violence: A Critical History of the Laws of War” (1994) 35 Harv Int’l LJ 49.Google Scholar

⁸⁸ Understanding concepts such as “military objectives” or necessity is discussed in detail by Reynolds, Jefferson D, “Collateral Damage on the Twenty-First Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground” (2005) 56 AFL Rev 1 at 82–87.Google Scholar It is also worth noting that military necessity does not trump specific IHL prohibitions, including Article 35(3) of Additional Protocol I. As the British Defence Manual states: “Necessity cannot be used to justify action prohibited by law.” See British Ministry of Defence, supra note 39 at para 2.3.

⁸⁹ Bothe, Michael et al, “International Law Protecting the Environment during Armed Conflict: Gaps and Opportunities” (2010) 92 IRRC 569 at 577–78.Google Scholar

⁹⁰ Caggiano, Mark JT, “The Legitimacy of Environmental Destruction in Modern Warfare: Customary Substance over Conventional Form” (1993) 20 BC Envt’l Aff L Rev 479 at 497.Google Scholar

⁹¹ See, eg, Arkin, William M, “The Environmental Threat of Military Operations,” in Grunawalt, , King, , and McClain, , supra note 73, 116 at 131.AMBIGUOUS (25261 citations)Google Scholar

⁹² Additional Protocol I, supra note 18, Article 48.

⁹³ Ibid, Article 57.

⁹⁴ See, eg, International Committee of the Red Cross, Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict (30 April 1996), online: International Committee of the Red Cross <http://www.icrc.org/eng/resources/documents/misc/57jn38.htm> [Guidelines for Military Manuals].

⁹⁵ Bothe et al, supra note 89 at 577. For some of the other challenges facing recognition of the environment as a civilian object, see Baker, Betsy, “Legal Protections for the Environment in Times of Armed Conflict” (1992) 33 Va J Int’l L 351 at 364.Google Scholar

⁹⁶ The dominance of the anthropocentric approach in matters of IHL and the environment is considered in Schmitt, supra note 34 at 13.

⁹⁷ Additional Protocol I, supra note 18, Article 54(2).

⁹⁸ See Guidelines for Military Manuals, supra note 94; Diedrich, Michael D Jr,, “Law of War and Ecology: A Proposal for a Workable Approach to Protecting the Environment through the Law of War” (1992) 136 Mil L Rev 137 at 146–48.Google Scholar

⁹⁹ Canada’s Arctic Foreign Policy, supra note 4 at 3-4.

¹⁰⁰ While not the primary focus of this article, the nature of the Arctic environment may be relevant to IHL beyond restrictions on the means and methods of warfare. An area of concern for compliance with IHL is in the treatment of detainees where inhospitable Arctic conditions and a lack of infrastructure would pose particular challenges. States are expected to ensure humane treatment for detainees, including medical assistance and a favourable climate for internment. Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, 75 UNTS 135, Articles13, 15, 22, 30-31, and 46. Clearly, it would be more difficult to provide these basic necessities while adrift in Arctic waters or at an isolated outpost. While the notion of Arctic detainees may seem somewhat fanciful, it underscores the range of obligations IHL imposes and their potential consequences in this regional context.

¹⁰¹ Canadian International Council, “Should Canada Strengthen Its Military Presence in the Arctic?” Canadian International Council, online: <http://www.opencanada.org/rapid-response/should-canada-strengthen-its-military-presence-in-the-arctic/>.