The World Has Laws About Land and Sea, But Not About Ice

When the Chinese cargo freighter Istanbul Bridge set sail for Europe in late September, it took an unusual route. Instead of heading south for the 40-day voyage through the Suez Canal, it tacked north. The freighter arrived in the United Kingdom at the port of Felixstowe just 20 days later—successfully launching the first-ever Arctic commercial-container route from Asia to Europe.

For most of human history, the surface of the world’s northernmost ocean has been largely frozen. Now scientists predict that most of the Arctic Ocean’s 6.1 million square miles may be seasonally ice-free as soon as 2050. Economically, a less icy Arctic spells opportunity—new shipping routes and untapped fossil-fuel reserves. Climatologically, it’s a calamity. Legally, it’s a problem that has to be solved.  

Much of the ocean’s center, the northernmost stretch surrounding the pole, will be subject to the lawlessness of the high seas—which will become a problem as more ships try to navigate a mushy mix of water and sea ice. And although the Arctic is the world’s fastest-warming region, and contains its most rapidly acidifiying ocean, it has few environmental protections. Scientists don’t have a clear idea of which species might need defending, or of the climate effects of unbridled shipping. (Ships puff black carbon, which reduces ice reflectivity and, in the short term, causes up to 1,500 times more warming than carbon dioxide.)

In October, the United Nation’s special envoy for the ocean, Peter Thomson, called for countries to agree to a “precautionary pause on new economic activities in the Central Arctic Ocean” to buy time to study the climate and environmental risks of increased activity. Others are asking for an agreement akin to the 2020 Artemis Accords, which committed 59 nations to the “peaceful” and “sustainable” exploration of space. But some polar-law scholars argue that curbing climate catastrophe may require a more radical reimagining: to make sea ice a legal person.

For centuries of seafaring, ice was an obstacle blocking people out, not an environment anyone thought to protect. Even in the Arctic, “we have laws about the land, we have the Law of the Sea, but we don’t have laws about ice,” Apostolos Tsiouvalas, a postdoctoral researcher with the Arctic University of Norway, told me. Because dealing with ice hasn’t been a major concern, even for the five nations that border the Arctic, and because ice is always transforming, its place in the law is confused at best.

In many cases, solid ice extending from a coastline has been treated as legal land, and ice carried by a current has been considered water. During the Cold War, both Russia and the United States maintained scientific “drift stations” on detached ice floes. In 1970, when a shooting occurred on one American station, several nations debated where, exactly, the crime took place. Was the ice Canadian, because it likely calved from a glacier on Canada’s coast? Was it an American island? After some back-and-forth, the vessel-size chunk of ice legally transformed—by no small imaginative leap—into an American ship.

The so-called Arctic Exception of the United Nations Convention on the Law of the Sea does extend states’ rights to impose laws far from the coastline, in areas that are ice-covered for most of the year. The point was for Arctic states to help prevent accidents and pollution, but states have since used the exception to extend their geographical sovereignty. But the term ice-covered complicates these claims. How much ice means “covered”? Are we talking uncrossably frozen, or just a few drifting bits?

That’s the problem with regulating icy regions: Even if these cryo-categories were more formalized, none would apply for very long. A large majority of Arctic ice is sea ice, which forms on ocean surfaces when salt water freezes. (It’s distinct from icebergs, which calve from landbound glaciers.) Human activity may have accelerated its melt, but sea ice was already one of the planet’s most dynamic systems, its surface area fluctuating by millions of miles season to season. It’s always either melting or freezing, and as it melts, its fragments can travel hundreds of miles along waves and currents.

In an article published this month in the journal The Yearbook of Polar Law, Tsiouvalas and his co-authors, Mana Tugend and Romain Chuffart, argue that piecemeal updates to current laws simply will never keep up with this fast-changing and threatened environment. Future governance of sea ice will require a transformation of some sort, and they argue that the clearest path forward is to bring the rights-of-nature movement to the high north.  

Since Ecuador’s landmark 2008 constitutional protection of nature, Bolivia, India, New Zealand, and other countries across the world have made natural entities legal persons, or otherwise given them inviolable rights. The UCLA Law professor James Salzman, who has taught a class on nature’s rights, told me that this idea does not represent a single legal framework but that it does answer what he calls the “Lorax problem” of environmental law, referring to the Dr. Seuss character who claims to “speak for the trees.” Granting a voiceless entity legal personhood provides it with a representative to argue on its behalf.

With this designation, Tsiouvalas and his co-authors note, sea ice would get the highest legal status possible. In many cases, environmental protections can be bent to accommodate other, conflicting benefits to human society. But personhood grants an inherent right to exist that can’t be superseded. The new paper is mostly an ethical exploration and, the authors acknowledge, still just a stepping stone to more concrete regulations, but granting ice rights would create firmer standing to, for example, keep ships out of areas that humanity might otherwise want to use. The authors also note that rethinking sea ice’s status could include Indigenous people who have been routinely excluded from decisions around Arctic sovereignty and whose millennia of living on and with ice could guide its future governance.

But Sara Olsvig, the chair of the Inuit Circumpolar Council, told me recently that the legal interest in Arctic rights of nature is a “worrying development.” To Olsvig, the phrase rights of nature itself implies some separate concept of nature that doesn’t exist for the Inuit. And in the past, the environmentalist movement has elevated its idea of “nature” above the interests of Indigenous people. Decades-long bans against whale and seal hunting, for instance, devastated the cultural continuity and health of Inuit in the far north.

To answer such concerns, any legal right granted needs to be very clear about the duties that follow, Salzman said: If sea ice has a right to not be harmed, what constitutes “harm”? Would that mean blocking all human interference with the ice, or merely banning fuels that emit black carbon? After all, the major threat to sea ice—global emissions—“is not something that can be locally managed,” Salzman pointed out, and so far, natural resources have obtained legal personhood only in a national context. Rights for sea ice would require international agreement, which could be not only harder to achieve but harder to enforce. Sara Ross, an associate law professor at Dalhousie University, in Canada, told me that, in her view, legal personhood granted via international treaty would be too dependent on goodwill agreements to be effective.

But in some ways, legal personhood for nonhumans is an old idea, Ross said. Most countries grant it to corporations, and in the United States and Commonwealth countries, it’s typical for ships too. She especially likes the ship comparison, because—as maritime law has already discovered—floating pieces of ice aren’t so dissimilar. She imagines a more circumscribed role for sea-ice personhood, connected to, say, setting standards that ban icebreaking or heavy fuel emissions in icy areas. If these mandates are violated, local Inuit communities would have the power to sue on behalf of the ice—whether or not they could prove how much one particular ship degraded one particular stretch of ice.

Without some legal protections put in place, the sea ice will soon disappear that much faster. In October, the U.S. bought new icebreaking ships from Finland and undermined an International Maritime Organization agreement that would have had shipowners pay a fee for the greenhouse gases their vessels emit. The next week, just after the conclusion of the Istanbul Bridge’s voyage, Russia and China made a formal agreement to co-develop the Northern Sea Route that the ship had followed. If summer sea ice disappears entirely, scientists predict accelerated catastrophe—leaps in temperature, more frequent and stronger storms, global sea-level rise—which will threaten the planet’s general livability. “The fact that we need sea ice to survive is not a rights-of-nature argument,” Salzman said. “But it’s still a pretty good case to make.”