Permafrost Degradation in the Law of Arctic States: Diagnosing Structural Gaps

This article is the first part of a two-part study on the legal consequences of permafrost degradation in the Arctic states. Its task is diagnostic rather than normative. In contrast to the follow-up publication, which will examine the architecture of a special legal regime, this article remains within the plane of lex lata and asks to what extent existing legal institutions are capable of encompassing relations arising from permafrost degradation. The central claim is that permafrost degradation undermines three tacit assumptions on which core institutions of modern law have been built: the physical stability of land as an object of rights; the locality and individualisability of harm required by classical tort doctrine; and the event-like, discrete character of emergencies. Because these assumptions are no longer satisfied, traditional tools — property and land law, tort law, spatial planning instruments, cadastre and compensation schemes — prove only partially applicable or entirely inadequate when faced with this type of harm. The article shows that Arctic legal systems regulate activities on permafrost comparatively well, in the sense of addressing negative impacts on permafrost as an environmental object. By contrast, they have few means to process the consequences produced by degrading permafrost itself: ground subsidence, damage to foundations, loss of economic usability of plots, destabilisation of the cadastre, coastal erosion and fiscal collapse of municipalities. Precisely the distinction between regulation on permafrost and from degrading permafrost reveals not a sectoral lacuna, but a deeper structural failure of the legal system. This first part of the study is therefore confined to diagnosis. Normative proposals for a special regime are deliberately bracketed out and become the subject of a second article.