Macquarie Journal of International and Comparative Environmental Law
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LIESBETH PEETERS[*]
The Antarctic is special, in every way. It is never moderate, it is always extreme. It is the coldest, most barren, isolated, uninhabited continent with the roughest seas on the planet[2]. It is also the last continent where mankind still has a chance to prove its ability not to ruin everything it lays its hands on.
In 1991 the Protocol on Environmental Protection to the Antarctic Treaty (PEPAT) was adopted. It banned mining activities in Antarctica for at least 50 years. The author submits that the adoption of PEPAT can be regarded as evidence of the greening of Antarctic policy.
This paper will address a very important question: to which area does the ban on mining apply? This question has been further narrowed down to focus on the possible application of the ban to various maritime areas.
It is of great importance to clarify the maritime jurisdiction for mining. On the one hand, PEPAT puts a 50 year ban on minerals mining, based on the precautionary principle. However, on the other hand, there is the freedom of the high seas and the Common Heritage status of the Deep Seabed. So the question is whether mining is or is not allowed in the polar waters.
The question of offshore jurisdiction is especially important because, if oil or gas were ever to be found in the area, the best chances to extract it are offshore. On shore, the immense ice sheet, which covers 98% of the continent, is 1 mile thick on average and moves seaward at a rate of 1 metre per day, currently making drilling technically unfeasible.
From a legal point of view, Antarctica is a controversial continent. There are seven states that have made territorial claims on it, none of them recognized by the rest of the world. Moreover, part of Antarctica is unclaimed, while another part has been claimed by three states. Thus, there is great potential for conflict, especially because the major impetus for the various claims made with regard to Antarctica is access to, and exclusive use of, resources.
Antarctica is an invaluable environment for scientists. The relatively pristine state makes for an excellent condition for setting baselines for science disciplines of all kinds. Mineral exploitation is likely to impinge on this traditional use because it would erode the purity of the continent.[3]
Additionally, the special physical and political situation of Antarctica brings with it the ever recurring problem of having to apply global legal concepts, such as those embedded in the 1982 UN Law of the Sea Convention, that cannot be neatly applied to this area.[4]
At the present time, it may not seem particularly important to solve the jurisdiction issue over Antarctic offshore zones because there is no current proof of deposits of oil or gas. Currently, there are still known global reserves where hydrocarbons can be extracted at much lower costs. Moreover, because of the extreme conditions, drilling in Antarctica is not very commercially attractive. However, times may change, prices may go up and technical developments may overcome the practical barriers and actually make it feasible to extract Antarctic hydrocarbons.[5]
Whilst it has not been proven so far, it is likely Antarctica does have significant natural resources. This is supported by the fact that in the Mezoic age, 200 million years ago, when the currently extractable fossil fuel deposits were formed, Antarctica was part of the continent Gondwanaland, together with Australia, Africa and South America. A similar geomorphological structure can thus be expected.
This paper will firstly look at the general legal regime governing mining in Antarctica (Part I). It will then focus on those areas to which the ban on mining activities contained in PEPAT applies (Part II). Whilst an attempt has been made to distinguish different aspects of the issue, each of the relevant issues is interrelated and cannot easily be circumvented. Part II will focus on three main sub-issues. Firstly, whether the ban includes sea areas. Secondly, the compatibility of establishing jurisdiction over maritime areas with the agreement to freeze all sovereignty issues, as found in article IV Antarctic Treaty. Finally, the various maritime zones provided for by the Law of the Sea as it now stands, will be analyzed in light of the unique factual situation of Antarctica.
This paper will conclude by drawing together the above elements as part of a wider discussion on the possibility of sovereignty in the Antarctic region (Part III). The issue will be whether a sovereign coastal state, the prerequisite for generating zones of offshore jurisdiction, actually does exist in Antarctica. Sovereignty of the claimant states will first be examined (III.A). Finally, this paper will present an alternative to the traditional concept of territorial sovereignty, being a condominium of the Antarctic Treaty Consultative Parties for the benefit of mankind (III.B).
Antarctica is governed by a collection of legal instruments, together forming the Antarctic Treaty System (ATS). It consists of the Antarctic Treaty (AT), the Convention on the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR), the Convention for the Conservation of Antarctic Seals 1972 (CCAS), and the PEPAT.
For our purposes the Antarctic Treaty and the PEPAT are the relevant instruments. The Antarctic Treaty was the first and most general convention. It was signed in 1959[6] and entered into force in 1961. It can be seen as a compromise for joint administration, while the sovereignty issue was put into abeyance.
The Antarctic Treaty itself is silent on the matter of resource exploitation, mainly because at the time of negotiation, the position of claimants and non-claimants on the issue was irreconcilable.
In the 1980s, the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA[7]) was negotiated. However, the CRAMRA never entered into force because of a joint Franco-Australian decision not to ratify. So after eight years of difficult negotiations, and after the Convention had been signed in 1988, the process became deadlocked. In 1991 CRAMRA was effectively put aside by the adoption of PEPAT.[8]
The PEPAT[9] is a milestone in the greening of Antarctic policy. It was adopted in 1991 and entered into force in January 1998. The policy regarding mining in the Antarctic is contained in Article 7 which prohibits all activity relating to mineral resources, other than scientific research. Article 7 provides: ‘Any activity relating to mineral resources, other than scientific research, shall be prohibited.’
Article 7 needs to be read in combination with Article 25 on modification and amendment. Only then it becomes clear that although Article 7 does not define a specific period for the moratorium, modification or amendment of the Protocol in order to permit mineral activities would only be permissible 50 years after the Protocol enters into force. Moreover, it can only be agreed upon by the ratification of three fourths of the Antarctic Treaty Consultative Parties[10] (ATCP’s), including all those that were ATCP’s at the time of the adoption of this Protocol.[11] If an amendment is proposed before the 50 years are over, voting has to be unanimous.[12] This ensures an effective ban on minerals activities in the foreseeable future.[13]
The crucial question for the effectiveness of the ban on mining is: to what area does this ban apply?
In order to establish whether the concept of offshore jurisdiction is a viable one in the Antarctic context, various questions have to be assessed. Firstly, whether the wording of the PEPAT and the Antarctic Treaty allow for it. Secondly, whether it is incompatible with Article IV Antarctic Treaty. Thirdly, whether it is compatible with the Law of the Sea. Finally, and probably the most important issue, whether there is a sovereign coastal state that can generate offshore zones of jurisdiction (Part III).
The PEPAT is ambiguous. Article 7 is silent on the area of application of the ban. Article 1(b) states that the PEPAT applies to the ‘Antarctic Treaty Area’, which means the area to which the provisions of the Antarctic Treaty apply in accordance with Article VI of that Treaty. Moreover, Article 4 of the PEPAT states that ‘the Protocol shall supplement the Antarctic Treaty and shall neither modify nor amend that Treaty’.
The PEPAT thus refers back to the Antarctic Treaty. Article VI of the Treaty makes an attempt to define the area of application of the Treaty:
Article VI: The provisions of the present Treaty shall apply to the area south of 60° South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area.
The wording of Article VI was a compromise between opposing views concerning the application of the Antarctic Treaty to the sea. As a result, the provision is not absolutely clear as to the application to offshore areas.
The provision seems to be drafted ‘so as to leave indefinite the question of what was the high seas’.[14] Nowhere in the Treaty are the words ‘land’ or ‘continent’ mentioned so as to define the scope of application.[15]
Given the ban in Article 7 of the PEPAT and the absence in the PEPAT of a specific provision delimiting the area of application of such ban, the question arises as to whether the seabed within the Antarctic Treaty Area will be subject to such ban or, instead, to the Law of the Sea Convention, which permits mineral development.[16]
The Antarctic Treaty provides that high seas rights shall not be affected. Does this preclude the establishment of offshore jurisdiction? An argument against could be mounted that at the time of entry into force of the Antarctic Treaty (and currently), seabed mining was not, under the 1958 Geneva Convention on the High Seas, or under international customary law, a high seas right. Therefore, Article 7 PEPAT could be interpreted as applicable in the whole area up to 60°SL without conflicting with Article VI Antarctic Treaty.[17] Article VI seems to be met if in all maritime areas basic high seas freedoms, such as freedoms of passage and overflight, are guaranteed. The issue of what would be ‘prejudicing high seas rights’ will be discussed in Section II.C.2.
Article 2 of the PEPAT might give some guidance on this issue. It provides that the Parties commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems. In the light of this ‘ecosystem’ approach, it would be logical that the PEPAT was meant to apply to the surrounding ocean areas as well as to the continent, because whatever happens in the Antarctic coastal waters has a great impact on the shores. As a consequence, there would be no point in not extending the protection to the coastal waters.[18]
The indispensable Article IV, the Article that enabled the Antarctic Treaty to function, complicates the situation. This key article effectively freezes all sovereignty claims from the moment of entry into force of the Antarctic Treaty:
Article IV: 1. Nothing contained in the present Treaty shall be interpreted as:
(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;
(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;
(c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s rights of or claim or basis of claim to territorial sovereignty in Antarctica.
2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.
In the light of this Article, and knowing that at the time of entry into force no offshore jurisdiction was established by any state, would proclamation of offshore jurisdiction constitute a breach of this status-quo? New ‘claims of territorial sovereignty’ are prohibited under this Article. However, can the rights on maritime zones be considered as territorial sovereignty? Indeed the argument can be made that some offshore jurisdictional zones are not an extension of sovereignty, but merely an inherent right of a coastal state as a natural prolongation of state authority over the adjacent landmass.[19]
As Article IV of the Antarctic Treaty is the glue that holds together the whole ATS, it is important to know whether this Article allows for zones of offshore jurisdiction. However, as it is impossible to properly discuss this issue without considering the various possible forms of offshore jurisdiction, it will be integrated in the next section.
If the wording of the protocol and Article IV of the Antarctic Treaty do leave the a priori possibility of the ban on minerals activity being applicable to offshore areas, which areas are we talking about? What kind of offshore regime could exist in the surrounding polar waters? And how do they interact with the current Law of the Sea? The United Nations Convention on the Law of the Sea (UNCLOS) provides for various ‘zones’, each with its own characteristics. These zones apply globally to ocean space. However, in the circumpolar waters, legal application of such jurisdictional zones is neither neat nor simple.[20]
One should bear in mind that all over the world, maritime areas have been allocated on the basis of the freedom-commons-sovereignty trichotomy,[21] whereas the Antarctic order moves away from this traditional concept to become in itself an alternative.
In many respects, the specific arrangements for Antarctica can coexist with the Law of the Sea. Nevertheless, there are some matters where conflicts could arise.[22] There is no provision in UNCLOS that would preclude its application to Antarctic waters. On the one hand, the Convention seeks to be all-embracing. However, on the other hand, it is clear that the legal concepts negotiated in UNCLOS never had the specific characteristics of the Antarctic waters in mind. They were adopted according to very different physical realities than those that exist in Antarctica. For example, the legal status of different sorts of ice, an issue important in the Antarctic seas, was never even mentioned in the UNCLOS.[23]
The easiest way to settle any potential conflict between the Antarctic Treaty and UNCLOS[24] would be to simply see the Treaty as lex specialis, negating UNCLOS as lex generalis. But in this view, it would be all too easy to ‘undo’ UNCLOS in any special situation.
With regard to the seabed, there is the continental shelf and the deep seabed. With regard to the water, one has to consider the territorial sea, the contiguous zone, the Exclusive Economic Zone (EEZ) and the high seas. Each will be covered in turn. Unfortunately there is no clear cut distinction. Some of the regimes concerning the seas also have some implications on the seabed and subsoil.
Most important for mining would be the status of the seabed and the subsoil thereof. Beyond the territorial sea, the seabed is divided into the continental shelf and the deep seabed. The establishment of a continental shelf would mark the limit of the deep seabed regime. Thus it would protect the area from claims of the international community to treat the area as a commons. The matter of sovereignty will be addressed further in Part III.
1 Continental shelf
The continental shelf is defined in Article 76 UNCLOS:
UNCLOS Article 76: Definition of the continental shelf
1. The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.
2. The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6
3. The continental margin comprises the submerged prolongation of the landmass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
4. […]
The coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources (Article 77 §1 UNCLOS). Nevertheless, the seabed itself is not considered to be part of the coastal state’s sovereign territory.[25]
(a) Can a Continental Shelf be Claimed in Antartica?
The practice of having a continental shelf dates back to 1945, when American President Truman proclaimed the right to exercise exclusive control of resources in the seabed and subsoil of the continental shelf.[26] His example was immediately followed by a mass of other countries, in fact resulting in the formation of an instant custom.[27] So by 1959, the moment of freezing of the claims, the right of a coastal state to have a continental shelf was already part of international customary law. Currently, three states have asserted continental shelf rights.[28]
The airspace and superjacent waters over the continental shelf are not affected. They retain the status of high seas and other states still enjoy the rights of navigation and overflight. Therefore this regime does not prejudice high seas rights and thus does not conflict with Article VI of the Antarctic Treaty.
Article 77(3) UNCLOS provides that a coastal state is ipso jure granted the right to have a continental shelf. No official proclamation is needed:
Article 77(3). The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.[29]
The problem of Article IV of the Antarctic Treaty needs to be reiterated. One must not forget that there are two sides to this Article. On the one hand, it prohibits new claims and enlargements of existing territorial claims. However, on the other hand, it also protects the already existing claims.[30] Article IV was never aimed at letting the claims fall into desuetude; the claims were just put into abeyance. This implies that also the marine spaces appertaining to the territorial spaces enjoy this protection.
As the continental shelf can be seen as a natural prolongation of the landmass, plus the fact that this right seems to be granted in absolute terms (Article 77), with no need to expressly proclaim it, it can be considered an inherent right of land-based territorial jurisdiction. Subsequently, to place the shelf under international control as a commons is likely to give rise to protests from the claimants that their rights under Article IV are being violated.[31] Such protests could result in unilateral actions, thus endangering the valuable achievements of the ATS.
(b) Delimitation
In short, the continental shelf extends up to 200 nautical miles from the coast or even further if the geophysical shelf extends further, with a maximum of 450 nautical miles.
However, delimitation of the continental shelf in Antarctica is not self-evident. On the landside, establishing the baselines forms a huge problem. Normally the low-water mark line forms the baseline. But where is this situated in Antarctica? What is the legal status of the ice shelves, being extensions of the ice cap that covers most of the continent; do they constitute land or sea? Is it a frozen form of sea?[32] The ‘fixed ice’ argument is probably the easiest and most practicable.[33] It says that as long as the ice is fixed to the land, it has the same characteristics as land, so it should be treated as land. This has the consequence that baselines are very unstable, as huge chunks of the ice shelves calve off and live on as icebergs. However, to venture further into this topic would take us too far into the area of geomorphology.
2 Deep seabed
The question that must be considered is how the PEPAT provision can be reconciled with the Deep Seabed mining provisions in Part XI of UNCLOS. It is apparent that these regimes would be in conflict if they related to the same area, namely the seabed around Antarctica.[34]
The deep seabed is dealt with in Part XI, which is certainly not international customary law. Part XI, in applying the common heritage of mankind-statute to the Deep Seabed, was controversial for a lot of countries and prevented the UNCLOS from entering into force for a long time. UNCLOS III established the International Seabed Authority (ISA), which will license and regulate mineral exploration and exploitation in the seabed, the ocean floor and its subsoil beyond the limits of national jurisdiction. The regime has no impact on the superjacent waters.[35]
As noted previously, only a few states have asserted continental shelf rights. This raises the issue of whether, for the purposes of determining the limits of the Area ‘beyond the limits of national jurisdiction’,[36] account should be taken of potential maritime zones or only of those that are effectively asserted. The answer can be found in the fact that continental shelf rights have been recognized to be inherent rights of the coastal state. Express assertion is not necessary for the continental shelf zones to exist, thus they automatically exclude application of the Deep Seabed Regime.
Unfortunately, in the classical ‘Law of the Sea-concepts’ nothing prevents the ISA from having authority over the seabed up to the shores in the unclaimed sector.[37] In Part III an alternative will be proposed that solves this inconsistency.
Obviously, the seabed and subsoil is the most important for mining purposes. However, it will also be clear that no mining activities can be undertaken without touching upon the water as well (for example, drilling platforms, pipelines, transport by shipping). Therefore, maritime zones in the coastal waters are also relevant for mining. Moreover, regimes of maritime zones sometimes have an impact on the seabed as well.
1 Territorial Sea
In the UNCLOS it was agreed that every coastal state would enjoy absolute control over its territorial sea, being the zone up to 12 nautical miles from its shores. Sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil (Article 2(2) UNCLOS).
Territorial sea-claims have been made by some states, some together with and others separate from, their territorial claims.[38] Asserting territorial sea-claims cannot be interpreted as being inhibited by Article IV of the Antarctic Treaty, as it is an inherent right of coastal states, and was already recognized in customary international law and conventions prior to the entry into force of the Antarctic Treaty. It was only in UNCLOS 1982 that a twelve nautical miles territorial sea was recognised. This raises the question whether the extension of a previously asserted claim from three to twelve nautical miles would be a prohibited enlargement of claims. One could argue that it is not, and that asserting a twelve nautical miles territorial sea is merely an act adopting a current entitlement recognised by international law as it now stands.
2 Contiguous zone
This zone is of no relevance for the mining issue, as the only implication of the establishment of such zone is the right to exercise control to prevent or punish infringements of customs, fiscal or sanitary regulations. So the coastal state only has enforcement jurisdiction, no legislative jurisdiction.[39]
3 Exclusive Economic Zone (EEZ)
The EEZ is a distinct functional zone of a maximum 200 nautical miles from the baselines, in which the coastal state has sovereign rights over – amongst others − natural resources and over activities in the zone related to their exploration and exploitation (Article 56 UNCLOS).
Only since UNCLOS III has the practice of having an EEZ has become international customary law.[40] It follows that at the time of entry into force of the Antarctic Treaty, parties could not have thought of their claims as including such an EEZ.
Moreover, such a zone needs to be expressly proclaimed in order for EEZ rights to exist. Thus it is not an inherent right of a coastal state. Declaration of an EEZ would clearly constitute expansion of an existing claim and would therefore infringe Article IV of the Antarctic Treaty.[41] If one state were to actually enforce an EEZ, that would mean political suicide of the whole ATS.[42]
4 High seas
In Article 86 of UNCLOS the high seas are defined as:
all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This Article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with Article 58.
Any claim of sovereignty over the high seas is rendered invalid by Article 89.
The area south of 60°SL is generally known as the Antarctic Treaty area. However, that area includes substantial areas of high seas, irrespective of whether or not coastal maritime areas are allowed to be established.[43] The only impact of this discussion would be on the precise extent of the area of high seas. The relatively small group of Antarctic Treaty Parties can of course not be permitted to limit the high seas freedoms normally to be enjoyed by all states. Therefore, Article VI contains a saving provision for the high seas rights ‘of any state’. Apparently, the Antarctic Treaty Parties have chosen not to limit the exercise of their own high seas rights amongst themselves.
All of the above should be considered in the light of the question of sovereignty. Indeed, the first prerequisite for establishing zones of offshore jurisdiction is the presence of a sovereign coastal state. The status of coastal waters depends on the status of the adjacent land-mass. The capacity to engender maritime jurisdiction is not derived form the landmass itself, but from the sovereignty over it! In the case of Antarctica, this is problematic.
This issue stands apart from the question of whether proclamation of off-shore jurisdiction would be allowed under Article IV Antarctic Treaty. Indeed, Article IV froze the problem, but did not solve it. On the one hand, there are the seven claimants who say that they have not renounced their rights to the coastal zones that ensue from their claimed sovereignty over Antarctic portions of land. On the other hand, there are the states that do not recognize any territorial sovereignty claims. They consider that around Antarctica there can be no coastal zones, for the reason that there are simply no coastal states in this continent.[44]
The issue to be addressed is whether the claimant states are actually sovereign coastal states. Whilst they say that they are, the rest of the world says they are not. To solve this issue we need to consider the notion of sovereignty. The first question to be asked is whether the area is eligible for occupation. Was the Antarctic terra nullius and therefore free to be occupied by whomever came first?
Some theories suggest that Antarctica is common heritage of mankind, or res communis. In this view, Antarctica cannot legally be occupied by any state and previously made claims are invalid. If this is so, there can be no coastal zones, and all the surrounding waters up to the coastline would be high seas.
These theories are not universally accepted. According to logical sense, and notwithstanding its special geophysical and political features, Antarctica is a continent like any other continent, so nothing prevents it from being open to occupation.
Even if it is acknowledged that Antarctica was eligible for occupation, there still needs to be international recognition of the claim. This is currently absent especially because all non-claimant states take every opportunity to assert that nothing in their actions can be explained as recognition of the claims made. In the absence of international recognition, the validity of any zones proclaimed offshore would remain suspect and open to challenge.[45]
In any case, the classic concept of sovereignty under present international law is not possible in Antarctica, because the traditional criteria for acquisition cannot properly be applied to Antarctica. For instance, substantiation of the claim through the normal practice of installing a permanent population is being severely undermined by the geophysical situation. Finally, even practice suggests that there are no real sovereign coastal states because under the overarching ATS, no state is permitted to act independently as a coastal sovereign.
Antarctica does not fit neatly into previously developed legal concepts, so perhaps it needs a sui generis sovereignty concept. A promising, yet almost unexplored line of thought would be the concept of a condominium for the benefit of mankind.
The Antarctic Treaty Consultative Parties (ATCP’s) have together assumed legal authority over Antarctica, in the form of an institution, at least for the duration of the Treaty. Consequently, a political/legal authority does in fact operate in the area, embodied in a multinational treaty institution. The system that has emerged suggests that the ATS may in itself operate as a valid alternative to the classic freedom/commons/sovereignty trichotomy.[46]
The ATCP’s are widely recognized as having done a good job[47] so far in preserving and protecting the Antarctic.[48] Due to their long-standing active commitment in the area, they have stronger claims to rights in the Antarctic than the rest of the world. A strong case could be made for sovereign group rights for the ATCP’s. In this way, the ‘Meeting of the Parties’ could exercise these rights and from their sovereignty, offshore sovereign rights could be derived.
An ATCP’s joint administration (condominium) for the benefit of mankind is advantageous for all. The Antarctic powers can continue to apply their expertise in managing the area, while the economic interests of the larger international community would also be satisfied. An additional advantage of this system is also that the coastal waters of the unclaimed sector would be covered by the ban on minerals mining.
Without an indigenous population, Antarctica must rely on the protection of a close-knit and powerful group of curator nations.[49] The fact that many of the ATCP’s have an interest in the region serves as an incentive for enforcement. As every law is only as good as the enforcement behind it, this system may in fact be more effective in protecting the Antarctic than making it a world park under the curatorship of the UN. The condominium already exists in fact; maybe the time has come to accept its legal validity.
As we have seen, the Law of the Sea poses many difficult questions in Antarctica which continue to be unanswered.
It is very unlikely that the ATCP’s would yield to the demand to surrender the continental shelf to the ISA. To place Antarctic offshore areas under a regime of commons will almost certainly disturb the balance reached in the Antarctic Treaty and could cause the ATS to collapse. This would then trigger renewed unilateral action by the claimants and possibly by other states to ensure their ‘sovereignty’.
Since the entire area, with its Northern border being the Antarctic convergence, (approximately the area of application of the Antarctic Treaty) is one ecological biotope[50], a coordinated management for the whole area is advisable. Enforcement can best be ensured by the present ATCP’s, rather than by the world community.
As yet, any offshore regime developed within the ATS is not likely to enjoy widespread international acceptance until the legal status of Antarctica itself is clarified. However, the author submits that time is on the side of the ATS.
Traditional absolute sovereignty, like national sovereignty, is disappearing. This phenomenon can already be seen to have happened in the case of the European Union. Traditional national states are too small to cope with problems that are more and more often global problems. Already there is a significant need for large scale, even global environmental protection − and for policy on the related issue of energy resources − and this will only become more important over time.
The ATS might present us with a whole new category of sovereignty. The system has proven that it works in Antarctica. It might be useful for other areas. For example, if Mars became within our reach, it might be that the states such as USA, USSR, Japan and Europe with developed or developing space exploration programs will have to strike a similar management agreement.
To be arguing about sovereignty and clinging to the traditional concept of national sovereignty is actually years behind where we are now. Evolution has moved on already.
[*] Masters of Energy and Environmental Law student at the Catholic University of Leuven.
[1] E J Sahurie, The International Law of Antarctica (1992) 373.
[2] C C Joyner, Antarctica and the Law of the Sea (1992) ix.
[3] Sahurie, above n 1, 424; C Anderson, ‘Antarctic Treaty Talks Break Down As Scientists Debate Impact Of Mining’ (1989) 3[22] 2 The Scientist 1.
[4] Hence, the title of this article refers to ‘Square peg, round hole’.
[5] This has occurred before − there was a time, not too long ago, that North Sea drilling was considered to be impossible.
[6] Antarctic Treaty, signed in Washington on 1 December 1959, entered into force on 23 June 1961 after ratification by the twelve countries then active in Antarctic science.
[7] 1988 Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature in Wellington, but never entered into force.
[8] This paper would have been slightly different if the CRAMRA would have entered into force, because CRAMRA explicitly stated that it applied to all mineral resource activities taking place on the Antarctic continent and its adjacent offshore areas, but without encroachment on the Deep Seabed.
[9] Madrid protocol, with 5 annexes, signed in Madrid on 4 October 1991 and entered into force upon ratification by all 26 ATCP’s, in January 1998. Until actually entering into force, the Protocol was provisionally applied “to the extent practicable” by the Parties to the Antarctic Treaty.
[10] Contracting Parties are not automatically Consultative Parties. Some conditions have to be met. The state has to adhere to the Treaty and has to carry out ‘substantial research’ in Antarctica. See Article IX (2) Antarctic Treaty.
[11] C Redgwell, ‘Environmental protection in Antarctica: the 1991 Protocol’ (1994) 43 ICLQ 609. This actually provides states like France and Australia, the countries that led the move away form the Minerals Convention, with a veto against mining.
[12] Article 25 PEPAT, together with Article XII (a) and (b) Antarctic Treaty.
[13] Interestingly, both provisions to lift the ban on mining are only possible if a legally binding regime on Antarctic mineral resource activities is in place.
[14] Joyner, above n 2, 40.
[15] The term Antarctica is nowhere defined in the treaty even though the word is used forty times.
[16] F Francioni, ‘Introduction: A Decade of Development in Antarctic International Law’ in F Francioni and T Scovazzi (eds), International Law for Antarctica (1996) 3.
[17] D R Rothwell, ‘Polar Environmental Protection and International Law: The 1991 Antarctic Protocol’ (2000) 11 EJIL 596. This reasoning only concerns avoiding conflict with Article IV Antarctic Treaty. It does not address the issue of compatibility with UNCLOS provisions or with article IV Antarctic Treaty!
[18] The boundary of 60° SL is not just arbitrarily chosen. This longitude approximately falls together with the physical ‘ecosystem-boundary’, being the water convergence, where the polar waters meet the other ocean waters. The quality of the waters is so different that it is an effective barrier for migratory fish; see Rothwell, above n 18, 594.
[19] A distinction should be made between sovereignty and sovereign rights. Whereas sovereignty is full/ absolute, sovereign rights can be just functional or partial.
[20] Joyner, above n 2, 79.
[21] Sahurie, above n 1, 483;l trichotomy: freedom of the high seas, deep seabed as common heritage, sovereignty over land and certain coastal zones.
[22] A Watts, International Law and the Antarctic Treaty System (1992) 157.
[23] Antarctica is not mentioned in UNCLOS. An interpretation put forward by a minority of authors is that consequently the UNCLOS does not apply to Antarctica. However, most authors rightly agree that the Antarctic issue was simply left out of the already heated UNCLOS negotiations deliberately because the topic was too controversial at that time.
[24] Should a conflict between UNCLOS and the Antarctic Treaty be solved by using the Vienna Convention on the Law of Treaties? Most of UNCLOS is currently international customary law, but part XI on the Area (the deep seabed), is certainly not. This part is still too controversial. However, to follow this trail of thought would bring us too far off-track.
[25] Joyner, above n 2, 121.
[26] Sahurie, above n 1, 385.
[27] J Wouters, Volkenrecht en internationale instellingen (2002) 394 (Course Materials for Public International Law, Catholic University of Leuven).
[28] Chile, Argentina and Australia.
[29] This is the exact same text as in the 1958 Continental Shelf Convention, Article II (3). We can assume that the acceptance of the ipso jure-doctrine was a gradual process which culminated in the 1958 Convention. In that view, the doctrine had become part of international customary law before the territorial claims were frozen. This view is contested though.
[30] Claims which already existed at the time of entry into force of the Antarctic Treaty.
[31] Sahurie, above n 1, 487.
[32] One extreme theory sees the entire ice cap as a prolongation of the seas, thus negating all territorial claims. This is most original but deficient and too far-fetched. In fact, the ice shelf has its origin on the continent, not in seawater.
[33] Joyner, above n 2, 196.
[34] Watts, above n 23, 159.
[35] UNCLOS Article 135: Legal status of the superjacent waters and air space. Neither this Part nor any rights granted or exercised pursuant thereto shall affect the legal status of the waters superjacent to the Area or that of the air space above those waters.
[36] An argument put forward by the LDC’s was that because sovereignty issues are still pending, Antarctic resources would be beyond national jurisdiction and therefore in the Area as defined in UNCLOS Part IX. This view is defective though and politically unachievable. Sahuire, above n 1, 442.
[37] This disrupts the coherence of a common policy for the whole Antarctic ecosystem. In this view, ironically, it is Article IV of the Treaty itself that has the unintended consequence of preventing the unclaimed sector to be claimed and thus let its seabed escape from mining activities.
[38] D R Rothwell, The Polar Regions and the Development of International Law (1996) 276.
[39] Wouters, above n 28, 391.
[40] Wouters, above n 28, 399.
[41] On the other hand however, it can be argued that there is no full sovereignty over an EEZ, only certain sovereign rights. As a consequence, it is not an enlargement of ‘a claim of territorial sovereignty’ as prohibited under Article IV Antarctic Treaty. States would then be free to establish an EEZ. This view is not widely accepted though and therefore politically risky to use to legitimise enforcement of an EEZ.
[42] To be exact, EEZ’s have actually been asserted by some countries, but they have never been given any real content, and were never enforced.
[43] Watts, above n 23, 148.
[44] T Scovazzi ‘The Antarctic Treaty System and the New Law of the Sea: Selected Problems’ in F Francioni and T Scovazzi (eds), International Law for Antarctica (1996) 379.
[45] Joyner, above n 2, 93. Even if the sovereignty would be recognized, there would still be problems, like what to do with the overlapping claims, and what with the unclaimed territory. What would be the status of their coastal waters? There are still other questions that remain, but of which the exploration would lead us too far. For example, the problem of cross-boundary oil/gas deposits. Because of the migratory nature of oil and gas, there are various places from where it can be extracted. Under which regime do they fall?
[46] Sahurie, above n 1, 426.
[47] For instance, they have acted very responsibly in protecting the environment, evidenced by their turn-about from the Minerals Convention to the Environmental Protection Protocol. This showed that they did not yield to the short term exploiting adventure, but rather adopted a precautionary approach towards Antarctic environment. The ATCP’s were also quite efficient in coordinating scientific research and in general in preventing conflicts to arise in the area.
[48] F Francioni, ‘Introduction: A Decade of Development in Antarctic International Law’ in F Francioni and T Scovazzi (eds), International Law for Antarctica (1996) 2.
[49] Anderson, above n 3, 2.
[50] Rothwell, above n 39, 261.
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