To the Earth and Back: Expanding Polar Legal Imagination

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Green aurora lights over snow covered mountain during night time in Nordland, Norway. Photo: Stein Egil Liland

The Arctic Institute Planetary Series 2025

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Legal imagination – polar and otherwise – is rather poor. It follows the doctrines of international law which transpose state sovereign concerns onto the international stage. As the multiple planetary crises unfold, international law has proven unable to find adequate solutions. In a field only responsive to crises,¹⁾Hilary Charlesworth, “International Law: A Discipline of Crisis,” The Modern Law Review 65, no. 3 (2002): 377–92, https://doi.org/10.1111/1468-2230.00385. the overlapping and interconnected planetary crises of our times might have become out of touch. In this context, our article asks whether there is still space for legal imagination within the field of polar law. We argue that to come to terms with current planetary politics in the polar regions, there is a need to re-examine the constellations of legal norms relevant to regional governance (i.e., polar law as a normative field) and academic discourse (i.e., polar law as an epistemic field) to assess where they fail to answer the concerns of our times and how we, as the community of “polar practitioners,” and “polar legal scholars” find space to speculate and expand polar legal imagination to more adequately account for planetary governance. To open up legal imagination in this context can materialise through a multitude of different epistemic and normative interventions. For instance, a complete reimagination of what we consider “good” “governance” for the poles could mean to think about how normative thought and practice account for the myriads of more-than-human modes of existence in the region, challenge traditional hierarchical relationships between sovereign states and diverse entities, both living and non-living and propose new modes of thinking with and against normativity for and in the Arctic.

One way we have tried to open up the space for thinking along theoretical and material critiques of polar law and building on experiences from three years of engagement between polar lawyers and the Critical Legal Conference (CLC), we discuss potential alternatives to law’s interaction with Arctic existence and agency beyond conventional state-centric legalities. These alternatives force us to acknowledge the Arctic(s) and the polar regions as non-fixed and dynamic spaces where sovereignty, legality, and normativity are fluid and mutable. To conclude we argue that thinking on speculative registers can help to reassemble legal sovereignty constructs in response to the poles’ changing landscapes. Expanding Arctic legal imagination to the confines of the Earth provides an aperture to articulate new forms of coexistence and justice to pave the way for legal theory and practice to account for molecular-planetary concerns.

A Brief History of Polar Law

To find out whether there is room – at all – for legal imagination within the field, it is necessary to go back to the history of polar law as a normative field. A history or official hagiography of polar law is not difficult to do as it follows the lines of international and domestic laws’ evolutions for and in the poles. However, much like any other field of international law, the historical principles behind polar law are rooted in questions of sovereignty,²⁾Corine Wood-Donnelly, Performing Arctic Sovereignty: Policy and Visual Narratives, 1st edition (Oxon: Routledge, 2018); Corine Wood-Donnelly, “Sovereignty Cubed: The Arctic as a Territorial and Ontological Volume,” European Journal of Social Theory, August 28, 2024, 13684310241270533, https://doi.org/10.1177/13684310241270533. dominion,³⁾Rachael Lorna Johnstone, “Colonisation at the Poles: A Story of Ineffective Occupation,” The Yearbook of Polar Law Online 13, no. 1 (2022): 93–124. colonialism,⁴⁾Yelena Yermakova, “Domination as a legacy of the colonial origins and structure of the Antarctic Treaty System.” Colonialism and Antarctica: Attitudes, logics, and practices (2024): 11. (over)exploitation of natural resources,⁵⁾Natalia Loukacheva, Julia Jabour, Jan-Gunnar Winther, Øyvind Ravna, Erik J. Molenaar, Níels Einarsson, Malgosia Fitzmaurice et al. Polar law and resources. Nordisk Ministerråd, 2015; Timo Koivurova, “Arctic resources: Exploitation of natural resources in the Arctic from the perspective of international law.” In Research Handbook on International Law and Natural Resources, pp. 349-366. Edward Elgar Publishing, 2016 enclosure (which is arguably linked to colonialism), and exclusion of people (mainly in the Arctic – again linked to the region’s colonial past and present) and environment. Again, and without much surprise, these reflect the Arctic littoral states’ modes of governance. These frameworks have primarily been focused on the management of polar spaces through the lens of national interests, often prioritising and enabling states’ interests of power projections, control, and economic interests.

In this context, polar law has been a reactive tool for managing resources and delineating geopolitical boundaries – reflecting a certain capitalist mode of “seeing like a state”⁶⁾James C. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (Yale University Press, 1998), https://www.jstor.org/stable/j.ctt1nq3vk. through which states’ managerial processes of geographical enclosure and control as well as the exploitation of all living and non-living entities for the accumulation of wealth become an ontological practice to stabilise state sovereignty both globally and domestically. And although law relevant to the polar regions has since evolved (albeit slightly), these state logics remain what ontologically frame the production of legal norms in the region. However, as we all know, the challenges facing the poles go far beyond the traditional states’ modes of existence. Polar geopolitics and governance is driven by ontological framings of the regions as the terrain of states and for states – be them Arctic or non-Arctic.⁷⁾Corine Wood-Donnelly, “Sovereignty Cubed: The Arctic as a Territorial and Ontological Volume,” European Journal of Social Theory, August 28, 2024, 13684310241270533, https://doi.org/10.1177/13684310241270533; Gabriella Gricius, “A Decolonial Approach to Arctic Security and Sovereignty,” in Arctic Yearbook 2021, ed. Lassi Heininen, Heather Exner-Pirot, and Justin Barnes (Arctic Portal, 2021); Johanne M. Bruun and Ingrid A. Medby, “Theorising the Thaw: Geopolitics in a Changing Arctic,” Geography Compass 8, no. 12 (2014): 915–29. The multiple ecological crises unfolding in these regions and beyond pose legal and ethical questions that cannot be addressed by existing frameworks alone. In that regard, and as we have said before, law – polar and otherwise – fails us.⁸⁾Apostolos Tsiouvalas and Romain Chuffart, Risks of Genocide Elsewhere: Any Responsibility for Arctic States? The Arctic Institute – Center for Circumpolar Security Studies, 26 March 2024, https://www.thearcticinstitute.org/risks-genocide-elsewhere-any-responsibility-arctic-states/ So why should we even try to save it?

International Legal Imagination: From past to present

At times when there are failures of law, where the legal practice has difficulty catching up with the factual reality, lawyers have historically engaged in, what could be loosely termed, exercises of legal imagination. For instance, as Koskenniemi outlines, the founding figures of international law – French, Spanish, British, German and so on – engaged in legal imagination to shape the making of international norms and principles to transpose their own visions and understandings of governance onto the international stage – again as a means of projecting their own vision of what ought to be. So at historical junctures, these legal technicians (i.e., European lawyers) mapped their ideal governance future with the modalities of their legal times. In that context, they used everything at hand (e.g., theology, roman law, raison d’état, politics, even natural science, physics and biology) as novel frames to imagine and argue differently.⁹⁾Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021). “Legal imagining is both specific to the time and place where it takes place and continuous with imagining that has taken place and will occur in different places and at different times.”¹⁰⁾Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300–1870 (Cambridge University Press, 2021). Yet, these historical modalities inherently guide contemporary imagination through a framework of objectivity, neutrality, and universality in legal discourse, elements that can be traced back to international law’s very inception. In other words, international law, including polar law, continues to be influenced by a “deeply rooted” mindset that often overlooks the dynamics of power, the constraints on potential legal interpretations, and the universalization of a ‘particular’ approach of legal speculation that reflects the imagination of 17th and 18th century Western masculinist lawyers as well as their own imperial and colonial projects.

Historicizing the values underpinning polar law by dismissing them as mere ‘standards of the past’ in academic discourse overlooks their ongoing influence in the ‘present’. Polar law is ‘present’ and is far from flawless. This stance consequently neglects the intricate and often overt connections between modern legal knowledge and various forms of power, including those based on race,¹¹⁾Robert Knox, “Valuing Race? Stretched Marxism and the Logic of Imperialism,” London Review of International Law 4, no. 1 (March 2016): 81–126, https://doi.org/10.1093/lril/lrw004; Robert Knox, “Imperialism, Hypocrisy and the Politics of International Law,” no. 3 (2022): 45. class,¹²⁾B. S. Chimni, “Prolegomena to a Class Approach to International Law,” European Journal of International Law 21, no. 1 (February 1, 2010): 57–82, https://doi.org/10.1093/ejil/chq009; Rose Parfitt, The Process of International Legal Reproduction: Inequality, Historiography, Resistance, vol. 137 (Cambridge University Press, 2019); Grietje Baars, The Corporation, Law and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy (BRILL, 2019). and gender.¹³⁾Hilary Charlesworth and C. M. Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester University Press, 2000). Such legal knowledge mirrors the cultural values associated with modernity. It is evident in the Arctic through a range of daily challenges faced by the region, impacting the material world, biodiversity, Indigenous populations, and the broader future of the planet. It signifies the outcomes of a pervasive power structure that has consistently accompanied international law that transcends the legal orders of the polar regions.

Expanding Polar Legal Imagination: Speculation and Prefiguration

As outlined in the introduction, law is typically a reactive discipline; it responds to crises, disputes, or the needs of states. This is where speculation comes into play, but how do we speculate (as a practice) with a focus on the polar regions? Speculative legal praxis invites us to proactively imagine alternative futures. This is not just about responding to immediate threats to the polar environments (environmental law has not managed to do that in a century of normative developments); it is about rethinking the legal frameworks themselves, questioning their assumptions, and envisioning new possibilities for polar law. One way of doing speculation is through the concept of prefiguration, as a means of imagining the future we want. In that sense, prefiguration allows us to move beyond the confines of existing legal systems and ask fundamental questions: what is the future of the polar regions we want? And how do we transpose this vision of the future into a normative endeavour? Just as the poles are transforming as a result of the climate and environmental crises, so too must our legal concepts become more fluid, adaptive, and interconnected. Traditional categories like sovereignty, legality, and normativity, which have historically been fixed and stable, are now being challenged by ecological instability. This demands that we move away from static legal systems towards more adaptive legal orders, ones that can respond to molecular-planetary concerns and ecological limits.

Speculative thinking is not simply a means to escape from the present. It is a political praxis to reimagine and reconstruct legal knowledge that can respond to the complex, entangled realities of the polar regions. It allows us to think beyond the binaries of state vs. non-state actors, human vs. non-human interests, and utilitarian resource extraction vs. environmental protection. Instead, it invites us to consider a normative system that respects Indigenous knowledge, non-human sovereignties, and the interdependence of all life forms within these fragile ecosystems. For us, to think of polar law on a speculative register means not just imagining future scenarios and arguments for legal governance but an overall rethinking of our way of polar governance itself. Speculation, in this sense, is not just about creating fictitious futures but an active, creative and critical process of prefiguration, as a means to envision the kind of polar governance we want to see in the future as both a normative and a political resituating exercise. If prefiguration becomes a political and normative praxis, then speculative academia becomes the venue for scholars to politicise.

Speculative Academia – A turn to ‘Critical Polar Jurisprudence’

Using prefiguration as a point of analytical departure, we asked ourselves what is the kind of future that we want to have in the polar regions? Polar Law, as a subset of international law, is an artefact deeply embedded within the sociocultural paradigm of modernity and is inevitably infected with the methodologies and ideologies of this paradigm. The field of Polar Law as an academic discipline is riddled with doctrinal and formalist approaches to the Arctic and Antarctic legal issues. As international law researchers, we are often trained to look for gaps in our polar legal realities to heal (de lege ferenda), with almost messianic ambitions, the ills of our global collective social and environmental factual realities. Polar law is no exception, and black-letter methodologies abound. Even scholars whose research involves environmental law, decolonisation or people liberation movements, whose themes are perhaps more synonymous with a broad understanding of ‘justice’, often frame their arguments through a doctrinal lens to gain legitimacy.

As we aim to reimagine polar law in ways that are not limited to state modes of existence but include humans and more-than-human entities alike in this process, since August 2022 we have opened the register of speculation to what we term a ‘critical turn’ to polar law. In doing so, we contented that it was perhaps time to think of ‘Critical Polar Jurisprudence.’ In this context, we have been convening two streams annually at both the Polar Law Symposium¹⁴⁾See https://www.polarlaw.is/en/polar-law-symposium and the Critical Legal Conference (CLC). The Polar Law Symposium gathers researchers from around the globe on an annual basis, providing a platform for the exchange of research-based scientific knowledge on a variety of issues pertinent to polar regions. Conversely, the CLC, which has been a pivotal gathering since its inception in 1986, serves as a critical venue for examining legal and political issues, through a vast array of theoretical approaches. That said, the Critical Polar Law initiative has emerged to bring these two together, reevaluate the assumptions commonly held about the polar regions and to address emerging issues in polar law through the lens of critical jurisprudence. It aims to deconstruct existing legal realities, such as the premise of conceptual superiority of state sovereignty and its role as the moulder of law and life in the polar regions.

Our way to speculate and prefigure the future of polar law was to engage on several topics from a more theoretical perspective with justice at the centre. While theories of justice have have recently been advanced for Arctic governance,¹⁵⁾Corine Wood- Donnelly and Johanna Ohlsson, Arctic Justice: Environment, Society and Governance (Bristol University Press, 2023). thus far our theoretical endeavours have focused on broadening this conversation not to focus neither governance nor on the poles specifically. In an age where planetary politics are being reassembled, we thought it was worth addressing what lies beyond. We therefore chose “theorising” as a means of prefiguration and practice to assess why the polar regions can be a site of theoretical inquiries. Along the way, we articulated thoughts around alternative theoretical reassessments of polar law.

First, we advance the term Hyperborean Legalities to “summon dreamy visions of an alternative legal imaginary for the world’s northernmost region” and to analyse the Arctic as a liminal space, one that exists beyond legal dogmatic approaches. Conceptually, Hyperborean Legalities allowed us to challenge the superiority of state sovereignty and its role as the moulder of law and life in the region. The idea is to challenge both the way the poles are often imagined as empty, frozen, dark lands, and think alongside the different shapes, forms, and sources of normativity/ies in the regions.¹⁶⁾Romain Chuffart, Thaissa Almeida Meira, and Apostolos Tsiouvalas, “‘Hyperborean Legalities: Critical Approaches to Polar Law’, Critical Legal Conference 2022,” The Polar Journal, 2022, 1–5.

Second, and building on the Hyperborea, we analysed how the poles are portrayed as “common refuge”, and “areas beyond sovereignty,” yet also as spaces where state sovereignty/ies are often ontologically reinforced as a tool of exclusion. In this context, in mainstream legal imagination, they become “quasi-frozen sanctuaries” where law freezes yet governance thrives. In these perceived liminal regions with complex legal, environmental, and social dynamics, challenging dominant governance structures and traditional norms. These regions, with their shifting cryospheric landscapes,¹⁷⁾Apostolos Tsiouvalas, “Recalcitrant Materialities of a Liminal Ocean: Deconstructing the ‘Arctic Nomos,’” The Yearbook of Polar Law Online 14, no. 1 (February 23, 2023): 76–97. serve as sanctuaries that bring to light the urgent need to address climate change and reconsider the relationship between humans and marine spaces. However, another narrative can be storied; one where the fluidity, materiality, and disappearance of ice¹⁸⁾Philip Steinberg and Kimberley Peters, “Wet Ontologies, Fluid Spaces: Giving Depth to Volume through Oceanic Thinking,” Environment and Planning D: Society and Space 33, no. 2 (2015): 247–64; Kimberley Peters and Philip Steinberg, “The Ocean in Excess: Towards a More-than-Wet Ontology,” Dialogues in Human Geography 9, no. 3 (2019): 293–307; Philip Steinberg et al., “Navigating the Structural Coherence of Sea Ice,” in Laws of the Sea, ed. Irus Braverman (Routledge, 2022), 166–85. can be thought of as a “sanctuary” that invites a rethinking of environmental protection, legal frameworks, and the struggle against territorial enclosures in a destabilised planetary context. To come back to prefiguration, water in a frozen state can become a source of law. Its disappearance and the longing for the cold help speculate a normative future that cares for the human and non-human modes of existence it supports.¹⁹⁾Apostolos Tsiouvalas and Romain Chuffart, Frozen Laws and Critical Freeze for the Quasi-Frozen Sanctuary–Critical Legal Conference 2023 (Taylor & Francis, 2023). This care is not merely a passive concern but an active relational engagement, recognizing the interconnectedness of human and non-human entities.²⁰⁾See Mana Tugend, From Anthropocentrism to Relational Care: Rethinking Normative Relationships for the Arctic Ocean. The Arctic Institute. Thinking about ice as a source of law thus allows us to leave behind landlocked state-bound legal thinking, transcend the constructed ontology of a land-sea dichotomy, and think fluidilly about oceanic spaces in all their passing and temporal physical states.

Lastly, it is important to acknowledge that any political and theoretical engagements with the governance of polar regions cannot be detached from multiple unfolding planetary crises. The pitfall of structuring the production of epistemic and normative knowledge around delimited geographies is that it can lead to tunnel vision where one becomes unable to see beyond regional impacts. Much like states, polar geographies have been carefully constructed along sovereign lines.²¹⁾Thomas J. Biersteker and Cynthia Weber, eds., State Sovereignty as Social Construct, Cambridge Studies in International Relations (Cambridge: Cambridge University Press, 1996), https://doi.org/10.1017/CBO9780511598685. To resist the ever-creeping might of sovereign powers, it is therefore important to prefigure polar governance as planetary politics and part of the Earth system. As such, polar governance needs to come to terms that nothing is polar yet everything is. In Cirkovic’s words, this calls for a “new ontological understanding of the global politico-juridical space” that “approximate the inclusion and representation of ‘everything considered to be non-human”.²²⁾Elena Cirkovic, “The Next Generation of International Law: Space, Ice, and the Cosmolegal Proposal,” German Law Journal 22, no. 2 (March 2021): 147–67, https://doi.org/10.1017/glj.2021.4. In speculating polar legal imagination, we therefore argue that the Arctic and Antarctic regions are not merely as amalgamates of geographies subjected to climate change and geopolitical contestations but as conceptual spaces where the traditional notions of sovereignty, legality, and normativity are now unfrozen and set adrift in the open sea of speculative jurisprudence. In this space, speculation becomes a creative endeavour that seeks to articulate, enact visions of coexistence and justice that are attuned to the specificities of the polar ecologies and histories and seek new paths for legal theory and practice in a collective reimagining of what law can and should be in a broader planetary context.

Critical Polar Jurisprudence – The Way Forward

To conclude, the aim of this article is to show that prefigurating and speculating our collective normative futures in the polar regions requires a commitment to facing planetary politics. The space is wide open for legal speculation in polar law; not only as a means to rethinking legal norms and epistemological practices (although to some extent it is necessary) but as a means to speculate the kind of future we truly want; identify and create relationships as a community of planetary care. At the heart of prefiguration lies a (re)centring of justice that is not enclosed and bound by state modes of existence. Speculating for the polar oceans means turning our thinking both onto microscopic and planetary concerns as part of relationalities and deep entanglements. In this context, speculating better and more just futures for the polar regions potentially means not thinking about the polar regions in isolation and as a one-fit-all discipline. It invites the need for polar law scholarship to embrace a myriad of disciplines. Next year, we hope to launch the Critical Polar Jurisprudence (CPJ) initiative at both the annual Polar Law Symposium and the Critical Legal Conference, respectively. We invite you to join us in summoning visionary alternatives for the legal frameworks governing the poles.

Dr Romain Chuffart, Nansen Professor in Arctic Studies, University of Akureyri; President and Managing Director, The Arctic Institute – Center for Circumpolar Security Studies. Mana Tugend, PhD fellow, Norwegian Centre for the Law of the Sea, UiT – The Arctic University of Norway. Apostolos Tsiouvalas, PhD fellow, Norwegian Centre for the Law of the Sea, UiT – The Arctic University of Norway: Research Associate, The Arctic Institute – Center for Circumpolar Security Studies.