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Last Updated: 7 February 2019
CHALLENGES TO THE ANTARCTIC TREATY: LOOKING BACK TO SEE AHEAD
Christopher C.
Joyner[∗]
I. INTRODUCTION
The Antarctic Treaty, conceived in the spirit of the highly successful
1957/58 scientific research program, the International Geophysical
Year (IGY),
was negotiated during 1959 and opened for signature on 1 December of that
year.[1] Its principal purposes are to
ensure ‘in the interest of all mankind that Antarctica shall continue
forever to be used exclusively
for peaceful purposes and shall not become the
scene or object of international
discord’[2] and to use the
science performed there to benefit the entire
planet.[3] More than fifty years on,
this accord has proved to be a remarkable multilateral instrument, and in many
ways unique among international
legal agreements. It is simple, straightforward
and succinct. It consists of 2,364 words contained in only seven pages set out
elegantly
in a preamble and fourteen articles. Notwithstanding its conspicuous
brevity—and the fact that seven of the original treaty
parties[4] assert claims to territory
on the continent—what the Treaty provides for in those legal provisions is
huge indeed.
The Treaty guarantees and formalises opportunities for free
access without restriction across the continent and scientific research
rights
that had characterized the highly successful IGY
experience.[5] It also establishes a
legal framework for all participating governments to closely collaborate in
order to achieve the shared aim
of preserving scientific research in the region,
as well as for the mutual exchange of plans, information and
personnel.[6] While the Treaty agrees
to disagree on the legal status of the national claims to the continent (i.e.,
it does not recognize, affirm,
dispute or negate those
claims),[7] it does declare that no
new claims may be asserted while the Treaty is in
force.[8]
The Treaty further
declares that Antarctica can be used only for peaceful purposes, thus
proscribing the establishment of military
bases or the conduct of military
activities in the region.[9]
Moreover, all areas and stations within the Treaty area are made subject to
unannounced, on-site inspection, including aerial observation,
by Contracting
Treaty Parties for possible violations of the agreement, the reports from which
are to be shared with all
parties.[10] Importantly, nuclear
explosions and the disposal of radioactive wastes are prohibited south of
60o South Latitude,[11]
making this area the largest nuclear-free zone in the
world.[12]
The Antarctic Treaty
has also demonstrated considerable adaptability and resiliency as it evolved
into a complex regional regime over
the five decades since its inception. Twelve
states were original parties—Argentina, Australia, Belgium, Chile, France,
Japan,
New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom
and the United States—but by 2009 a total of forty-seven
states had
become Treaty parties. Of those, the original twelve and sixteen others attained
the status of Antarctic Treaty Consultative
Parties (ATCPs), which are the
participating decision-making governments that negotiate and adopt policies
under the Treaty.[13]
A. The Antarctic Treaty System
International concern over the ecological health of the global commons
was not a salient concern in the late 1950s. Consequently,
it should come as
little surprise that the framers of the Antarctic Treaty did not mention the
word ‘environment’ in
the text. Yet, the Treaty drafters were
sufficiently prescient to include within the Treaty the assertion that among
‘the matters
of common interest’ that can prompt the Consultative
Parties to meet, formulate and recommend measures to their governments
is the
‘preservation and conservation of living resources in
Antarctica.’[14] It is this
multifaceted environmental imperative that is mainly responsible for the complex
transformation of the Antarctic Treaty
into the Antarctic Treaty System (ATS)
over the past five decades, the only composite legal regime that manages an
entire continent.[15] The
Consultative Parties augmented the Treaty by more than 200
‘recommendations’[16]
adopted at Consultative Meetings, including the 1964 Agreed Measures for the
Protection of Flora and Fauna.[17]
Three other associated legal instruments were added to the Treaty. Two
international agreements, the 1972 Convention on the Conservation
of Antarctic
Seals[18] and the 1980 Convention on
the Conservation of Antarctic Marine Living Resources
(CCAMLR),[19] were specifically
adopted by most of the ATCPs to protect and conserve seals, krill, seabirds and
finfish in the Southern Ocean.
A highly detailed and lengthy instrument, the
Convention on the Regulation of Antarctic Mineral Resource Activities, was
negotiated
by the ATCPs between 1982 and
1988.[20] However, owing to critical
public protests from environmental activists in France and Australia over the
possibility of minerals
development in Antarctica, the agreement was
indefinitely shelved and never entered into force. In 1991 the ATCPs brought to
completion
the environmental conversion of the Antarctic legal regime by
negotiating the Protocol on Environmental Protection to the Antarctic
Treaty.[21] This protocol provides
one of the most advanced models for a comprehensive, demanding regime of
environmental protection rules in
contemporary international law, and applies to
all parties throughout the entire Treaty
area.[22]
The Antarctic is
well-suited as a region for a wide-ranging treaty regime such as the ATS, due to
the absence of any permanent human
population and the lack of any commercial or
industrial activity. Once the Antarctic Treaty ‘froze’ the sovereign
claims,
the state parties were able to develop over four decades an innovative
regime of strict environmental protection rooted in a precautionary,
multi-species, ecosystem-based approach that was managed through the ATS. At the
heart of this robust regime is, of course, the 1959
Antarctic Treaty.
Notwithstanding the successful evolution of this legal arrangement, over the
past decade certain issues have surfaced that could challenge
the integrity and
viability of this critical treaty instrument. At the same time, these challenges
may generate political pressures
that might adversely impact on other legal
components of the ATS. This realization points to the central puzzle of this
study, namely,
what are the dimensions and possible consequences of these
challenges for the security of the Antarctic Treaty? To critically examine
this
puzzle, Part II assesses the challenges associated with the natural resources
and the sovereignty issue, with a focus, first,
on the possible implementation
by the seven claimant states of claims to outer continental shelf areas offshore
their claimed continental
sectors and second, the possible repercussions of the
discovery of a supergiant hydrocarbon or mineral mother lode on or around the
Antarctic Peninsula region. Part III evaluates selected potential challenges
stemming from a second dimension, namely the competition
and conflict that might
arise from bioprospecting activities. Part IV explores the possible
ramifications generated by whaling activities
by Japan in waters off the
Australian Antarctic Territory (AAT) and the legal and political efforts of both
governments to counter
the other. Finally, a conclusion proffers some closing
thoughts for serious reflection.
II. CHALLENGES FROM SOVEREIGNTY AND NATURAL RESOURCES
During its half-century life, the Antarctic Treaty has impressively
survived several stark challenges to its principles. Promulgated
at the height
of the Cold War, amidst ongoing international tensions over Berlin and Cuba, the
Antarctic Treaty overcame ideological
loggerheads and brought together the
United States and the Soviet Union under the first major regional arms control
regime.[23] Concern arose over the
possibility of national commercial rivalries from sealing and fisheries
over-exploitation and minerals development
in Antarctica, but these were put
under legal controls during the 1970s and
1980s.[24] Interestingly enough, in
the early 1980s, two ATCP states, Argentina and the United Kingdom, went to war
with each other over the
Falkland/Malvinas Islands, but that belligerency did
not disrupt ongoing ACTP negotiations concerning an Antarctic minerals
regime.[25] Coincidently, the
collapse of the negotiated Antarctic minerals regime agreement in 1989 led to
serious friction between Australia
and France and the governments of the United
States, United Kingdom, New Zealand, Japan and
Germany.[26] Nonetheless, during the
early 1990s, those tensions morphed into the establishment of a
consensus-negotiated framework for mutually
beneficial multilateral resource
conservation and environmental
protection.[27] In sum, the
performance of the state parties in upholding the Treaty and its associated
agreements over the last fifty years has
been remarkably cooperative and free
from international animosity. However, new challenges, fueled mostly by
accelerating globalization,
are now appearing that could eat away at that
cooperative underpinning of the Antarctic Treaty regime, especially if ATCP
governments
opt to press for narrow-minded national interests at the expense of
what is good for the whole Treaty membership.
A. Outer Continental Shelf Delimitation
The scramble since 2007 by the Arctic coastal states to grab as much
offshore continental shelf area as
possible[28] touched off a similar
flurry of geopolitical and legal activity by the seven claimant governments in
the Antarctic.[29] At the regulatory
heart of the rush to secure access to potential south polar
hydrocarbons[30] is Article 76 of
the 1982 United Nations Convention on the Law of the Sea
(UNCLOS).[31] Indeed, Article 76
provides the legal means by which coastal states can gain sovereignty over vast
areas of submarine continental
shelf areas offshore their coasts—areas
that might hold enormous reserves of hydrocarbon resources. Perhaps not
surprisingly,
the Antarctic claimant states are preparing for the possibility of
exercising that opportunity offshore their claimed territories
in the polar
south.[32]
Article 76 provides
for a four-step method for coastal states to delineate the outer limits of their
continental
shelves.[33]
A coastal state must complete all of these steps in order to delineate the outer
limits of its continental
shelf.[34]
Once a coastal state has completed the four-step process, it makes a submission
of information about its delineation to the Commission
on the Limits of the
Continental Shelf
(CLCS).[35]
The Commission evaluates and discusses the submission and then makes
recommendations to the coastal
state.[36] These
‘recommendations’ consist of technical and scientific advice to aid
the coastal state in the delineation
process.[37] A coastal state then
sets the limits of its continental shelf ‘on the basis of these
recommendations’ and those limits
‘shall be final and
binding.’[38]
B. Actions by Antarctic Claimant States
Since 2004 every Antarctic claimant state except Chile has acted as
though it were a coastal state on Antarctica. To that end, they
have made either
a full or partial submission to the UN Commission on the Limits of the
Continental Shelf in connection with their
claimed Antarctic territories.
Australia, the first claimant to make a submission to the CLCS, did so on 15
November 2004.[39] This submission
identified continental shelf extensions in ten locations off the Australian
mainland, including the Australian Antarctic
Territory (covering
686,821km2), and was depicted on maps accompanying the submission. An
accompanying note verbal requested that the CLCS defer consideration of
the
Antarctic extensions for the present time.
The submission by New Zealand
was filed with the CLCS on 19 April
2006,[40] although it excluded a
prospective outer continental shelf claim offshore its claimed sector in
Antarctica, on grounds of the ‘special
legal and political status of
Antarctica under the provisions of the Antarctic
Treaty....’[41] New Zealand,
however, reserved the right to make a supplementary submission for this area
‘appurtenant to Antarctica’
in the
future.[42]
Argentina made its
submission to the CLCS on 21 April 2009, which included a map and geographical
coordinates for outer continental
shelf limits overlapping the Antarctic
Peninsula.[43] Incredibly, the OCS
claim advanced by Argentina runs from its coast eastward to the South Sandwich
Islands, then south to encompass
the entire Antarctic Peninsula-Weddell Sea
region.[44]
On 4 May 2009,
Norway filed a partial submission to the CLCS in which was included Dronning
Maud Land.[45] In its submission,
Norway acknowledges the ‘special legal and political status of Antarctica
under the Antarctic Treaty, including
its Article IV,’ and accordingly
requested that the Commission accept this as a ‘partial’ submission,
to refrain
from taking action on ‘the continental shelf appurtenant to
Antarctica.’[46]
Chile made
its submission in the form of a ‘Preliminary Information’ statement
to the CLCS on 8 May 2009.[47] In
its submission, the outer continental shelf offshore the ‘Chilean
Antarctic Territory’ is not substantively addressed,
although it included
the caveat that because there are areas of continental shelf appurtenant to
Antarctica ‘the extent of
which have yet to be defined,’ this is a
‘partial submission’ for which a submission ‘may be made
later....’
[48]
The United
Kingdom has made two public communications concerning its outer continental
shelf claims in the Antarctic. First, in its
Note No. 168/08 of 9 May 2008 to
the UN Secretary General, the United Kingdom indicated that that it would be
making in 2009 ‘a
partial submission’ that ‘will not include
areas of the continental shelf areas appurtenant to Antarctica, for which
a
submission may be made
later....’[49] The rationale
for omitting these areas was to preserve the harmony of the Antarctic Treaty, as
well as because the extent of these
continental shelf areas ‘has yet to be
defined.’[50] Second, on 11
May 2009, the United Kingdom and Ireland submitted to the CLCS information on
the limits of the continental shelf beyond
200 nautical miles from the baselines
from which the breadth of the territorial sea is measured respective to the
Falkland Islands,
South Georgia and the South Sandwich
Islands.[51] While this submission
does not contain any direct treatment of the continental shelf offshore the
United Kingdom’s claimed
Antarctic territory, Figure 1 in the Executive
Summary clearly depicts the outer continental shelf limits for the areas around
the
Falkland Islands, South Georgia and the South Sandwich Islands extending
southward into the ocean space south of 60o South Latitude, the
jurisdictional ambit of the Antarctic
Treaty.[52]
Although France has
not formulated any specific outer continental shelf claim offshore its claimed
territory in Antarctica (Adelie
Land), it has noted in a ‘partial
submission’ to the UN Secretary General in February 2009 that such an
offshore zone
might well exist, for which a submission may later be
made.’[53]
C. Complicating Factors
Notwithstanding these developments, the concept of a coastal state and
the definition of coastal baselines are critical factors for
determining whether
jurisdictional rules of ocean law can be applied to the waters around
Antarctica. By definition, a coastal state
refers to a specific territory with
recognized borders alongside an ocean that is occupied by a population under an
organized government
and which, in its foreign affairs, possesses the qualities
of sovereignty and independence. It is true that the states mentioned
above do
assert sovereign claims to portions of the continent. However, therein lies the
rub: Do any of those claimed sectors in
Antarctica qualify as a coastal state,
or a territory recognized as sufficiently sovereign to generate legal rules for
regulating
offshore activities? During the fifty-year duration of the Antarctic
Treaty, this keystone consideration remains unsettled. The claimant
states
maintain the legitimacy of their claims and the non-claimant states contend that
those claims lack the ingredients necessary
to qualify as a true coastal state
or even a legitimate claimed territory. This ambiguity is codified by Article IV
in the Treaty,
which allows all parties to agree to disagree over the legal
status of the claims. Moreover, paragraph 2 of Article IV asserts clearly
that,
‘[n]o new claim, or enlargement of an existing claim, to territorial
sovereignty in Antarctica shall be asserted while
the present Treaty is in
force.’ This begs a critical consideration, namely, do the outer
continental shelf claims offshore
Antarctica - that are implied in the claimant
states’ submissions to the CLCS - legally take the form of new claims?
Might
they be considered extensions of the old claims referred to in Article IV
of the Antarctic Treaty? Or, if they merely ratify the
already extant claims,
does that status change if they are acted upon through national legislation by
the claimant government?[54] These
conundrums thus far have escaped legal resolution or consensus agreement, and if
acted upon, they could pose serious impediments
in the future to the
Treaty’s success. For this reason, and to avoid putting stress on the ATS,
it is unlikely that the CLCS
will proffer its advice on these
areas.[55]
A second factor for
confirming a lawful claim to outer continental shelves is the necessity of
establishing a coastal baseline, which
is normally determined by the ‘low
water line along the coast’ of a
state.[56] However, as much of
Antarctica is surrounded by ice throughout the year, it is not practical to
determine a low water line. This
is further complicated by ice shelves that ring
portions of the continent, pieces of which frequently break off and render any
potential
coast lines impermanent and irregular. Again, these geophysical
characteristics in Antarctica cannot help but severely complicate
the ability to
fix a coastal baseline, from which offshore jurisdictional zones would be
drawn.
Another resource-related issue might create conditions that could
adversely affect the integrity of the Antarctic Treaty. Suppose
that, as in the
Arctic, climate change in Antarctica continues to impact ice-covered areas,
especially in and around the Antarctic
Peninsula region. Suppose also that in
the course of this accelerated global warming, considerable melting occurs and
large areas
of subglacial rock formations become exposed, leading to the
geological discovery of huge platinum, uranium or other precious mineral
reserves in parts of the peninsula, or to a supergiant field of hydrocarbons in
the Weddell Sea. These regions are overlapped by
the competing sector claims of
the United Kingdom, Chile and Argentina, and such a situation might exacerbate
competing claims and
strain relations amongst those three states. Resource wars
have certainly occurred in the past, though not notably in the polar south.
The
key factor would remain on how desperate a claimant state was to secure these
resources and whether that single national interest
to acquire mineral or
hydrocarbon resources could be sublimated to the common interest of all in
preserving the integrity of the
Antarctic Treaty.
Clearly considerations
regarding the legal status of continental shelf claims and the possibility of
mineral and hydrocarbon resource
development continue to weigh on the minds of
many ATCP governments. That these concerns are not viewed as mere hypothetical
scenarios
was seen in April 2009 in the Ministerial Declaration on the Fiftieth
Anniversary of the Antarctic Treaty, issued at the beginning
of the 32nd
Antarctic Treaty Consultative Party
Meeting.[57] In paragraph 3 of that
document, the Consultative Parties pledged to ‘Reaffirm the
importance they attach to the contribution made by the Treaty, and by Article IV
in particular, to ensuring the continuance of
international harmony in
Antarctica.’ Similarly, in paragraph 5 of that declaration, the ATCPs
also pledged to ‘Reaffirm their commitment to Article 7 of the
Environmental Protocol, which prohibits any activity relating to mineral
resources, other than
scientific research.’ The declaration was designed
to reiterate support for the basic tenets of the Treaty System, especially
key
elements such as Article IV of the Treaty and Article 7 of the Environmental
Protocol. These two elements were emphasized in
particular because they
remain fundamental to the continuing health of the Antarctic Treaty regime. The
concern here focuses on the
possibility that these elements might be
destabilised by claimant state activities. The political accommodation created
by Article
IV can only be as strong as the willingness of key states (primarily
the claimant states) not to take actions that manifestly promote
claims or
establish ‘regulation’ of claimed areas that affect non-claimant
interests. Today no claimant state has sought
to implement national
legislation that would operationalise outer continental shelf claims. Nor has
any claimant state pressed its
domestic laws on other governments in
Antarctica. Nationalistic rhetoric, even amongst the overlapping
claimants, is generally kept
at a low, relatively inoffensive level.
Still, if governments began to act in ways to promote their control over claimed
areas in
Antarctica, those actions might induce other governments to follow
suit, thereby presenting greater opportunities for the Treaty
to unravel.
III. CHALLENGES FROM BIOLOGICAL PROSPECTING
A second potential challenge to the integrity of the Antarctic Treaty is
the increasing attention being given by governments and the
private sector to
biological prospecting—or bioprospecting—in the Antarctic and the
potential conflicts those activities
present for the
ATS.[58] Over the last two decades,
considerable interest worldwide has arisen in the exploration of naturally
occurring micro-organisms,
plants and animals for commercially valuable genetic
and biochemical resources. In this regard, a growing amount of scientific
research
on flora and fauna in Antarctica is being conducted with the aim of
discovering commercially beneficial genetic and biochemical resources.
Such
bioprospecting activity involves both pure academic as well as industrial
research. Significantly, in the Antarctic context,
this research is increasing
for two principal reasons. First, the scant knowledge about Antarctic biota
furnishes the potential for
scientists to discover new life forms that could
have use in biotechnology. Second, the environmental extremes that characterise
Antarctica, such as frigid temperatures and extreme aridity, present conditions
in which certain organisms have evolved unique characteristics
and biochemicals
for survival.[59] For example, there
is a glycoprotein that functions as an anti-freeze in some Antarctic fish,
preventing them from freezing to death
in sub-zero marine
environments.[60] Application of
this glycoprotein is being considered in several commercial processes, including
enhancing freeze tolerance in commercial
plants, extending the shelf-life of
frozen foods, improving surgery technique by freezing tissues and improving
opportunities for
fishing farming in cold
climates.[61]
A. Bioprospecting in Antarctica
That there is growing commercial interest in Antarctic genetic resources
is not disputed, as demonstrated by the fact that products
derived from
Antarctic genetic resources are already being marketed by several companies.
Such products include nutraceuticals from
krill oil, anti-freeze proteins,
anti-cancer drugs, enzymes and compounds for cosmetic products. Much of this
commercial activity
focuses on the marine environment, in particular
krill,[62] with less on land systems
and inland water sources.[63] As
reported to the ATCM, the greatest attention to genetic resources in Antarctica
comes from the pharmaceutical/medical technology
industries (23 percent),
followed by the food and beverage industry (20 percent), molecular biology and
biotechnology (18 percent),
industrial applications (12 percent), chemical
processing (11percent), cosmetics and personal care (6 percent), aquaculture and
agriculture
(6 percent), culture collection or library (3 percent) and
environmental remediation (1
percent).[64]
At least 187
research organizations and companies from 27 states are undertaking research for
commercial purposes in the
Antarctic.[65] Amongst the major
sponsoring states are Japan, United States, Spain, United Kingdom, Korea,
Canada, Sweden, Russia, China, Chile,
New Zealand, France, Belgium, India,
Denmark, The Netherlands, Germany and Poland—all of which are ATCPs. The
most entries
in the recently-constructed Antarctic Bioprospecting Database
originate from Japan, and mainly focus on organisms in the marine environment,
principally Antarctic krill. The second largest number of entries originate from
United States, most of which also focus on marine
biota, especially krill,
bacteria and fish.[66]
B. Bioprospecting as an ATS Issue
Bioprospecting first surfaced as an issue of interest in an Antarctic
Treaty Consultative Meeting (ATCM) when the issue was raised
by the Scientific
Committee on Antarctic Research (SCAR) in
1999.[67] Then, at ATCM XXV in 2002,
the United Kingdom tabled a short working paper that identified three serious
concerns about the onset
of bioprospecting activities in the
Antarctic.[68] First, the potential
for conflict existed between free access to scientific information as guaranteed
by the Antarctic Treaty and
the ‘confidentiality that inevitably surrounds
the commercial exploitation of bioactive material (i.e. patenting).’
Second
was the issue of whether and how regulation of bioprospecting should
proceed, and if so, who should oversee it. Third, there was
the issue of how to
regulate revenues derived from commercial exploitation of Antarctic species. The
United Kingdom’s paper
was important, for it became the catalyst for the
ATCP’s realization of the need to give serious consideration to
bioprospecting
in the polar south and alerted them to the potential legal,
political and scientific complications that those activities might present
to
the ATS.
At ATCM XXVI in 2003, the Committee on Environmental Protection
(CEP) approved ‘Biological Prospecting’ as an agenda item
and
considered two information
papers.[69] The CEP observed that
biological prospecting raised ‘many complex legal and political
issues’ and decided to refer these
concerns associated with biological
prospecting to a future ATCM for further
consideration.[70] In 2004, ATCM
XXVI accordingly decided to put biological prospecting on the agenda of the
following ATCM.[71] In 2004, the
United Nations Environmental Programme (UNEP) introduced an information paper on
the involvement of industry in Antarctic
biological prospecting at ATCM
XXVII.[72] The increasing saliency
of bioprospecting was underscored at ATCM XXVIII in 2005, as New Zealand and
Sweden submitted a working
paper,[73] Spain introduced a
scientific information paper, and the UNEP submitted an information paper on
recent developments in biological
prospecting relevant to
Antarctica.[74] Also at ATCM XXVIII,
the ATCPs approved Resolution 7 (2005), ‘Biological Prospecting in
Antarctica.’ This measure recommended
that ‘governments continue to
keep under review the question of biological prospecting in the Antarctic Treaty
area, and exchange
on an annual basis information and views relating to that
question as appropriate.’[75]
The ATCM also noted in the same resolution the ‘ongoing discussions in
other international fora on aspects of biological prospecting,
including efforts
to develop and clarify the nature and definition of such
activities.’[76]
At ATCM
XXIX in 2006, Argentina submitted an information paper that reported on its
biological prospecting and bioremediation activities
in
Antarctica.[77] Information papers
by France and the UNEP contributed to underscoring the need to establish a legal
regime for biological prospecting
in Antarctica, given recent trends of those
activities.[78] In 2007, an
information paper submitted to ATCM XXX by the UNEP proposed ‘a way
forward’ to address a bioprospecting
regime in the
Antarctic,[79] which was
complemented by a working paper submitted by the Netherlands, Belgium and France
that examined different organizations,
bodies and international instruments that
might contribute to a regulatory framework for bioprospecting in the
region.[80] The agenda of ACTM XXXI
in 2008 attracted two information papers on bioprospecting. One introduced by
Belgium provided an updated
report on the creation of an Antarctic
Bioprospecting Database[81] and the
other submitted by the Netherlands contained the Report of the ATCM
Intersessional Contact Group, which was formed to examine
the issue of
Biological Prospecting in the Antarctic Treaty
area.[82] Most recently, in 2009,
the XXXII ATCM adopted Resolution 9, which confirmed that the instruments of the
Antarctic Treaty system
are appropriate for managing biological prospecting in
the Antarctic and that the issue should be kept under active consideration
by
the Treaty parties.[83] These
developments strongly suggest that since 2000 the ATCPs have become keenly aware
of the complex issue of bioprospecting in
the Antarctic and the potential it
presents for disrupting the cooperative regime in that region. Even so, serious
discussions about
bioprospecting have been localised within the ATCMs and CEP.
CCAMLR has not been as actively involved in assessing the issue and
its
complications for conducting scientific research in the Southern Ocean. The
pressing question now appears to be how problematic
must the situation become
before serious remedial action is taken to legally remedy these concerns.
C. Complicating Factors
Importantly, the ATS does not directly regulate bioprospecting
activities in the Antarctic. To the extent that rules for bioprospecting
now
exist, they stem from the host government under which the researching company is
carrying out bioprospecting. Nonetheless, certain
provisions in the Antarctic
Treaty, the Protocol on Environmental Protection and the Convention on the
Conservation of Antarctic
Marine Living Resources have relevance for
bioprospecting, and these may provide the seeds for a future regulatory regime.
The Antarctic Treaty affirms that Antarctica shall be used for peaceful
purposes only, provides for freedom of scientific investigations,
and supports
the promotion of international co-operation among scientists working in
Antarctica.[84] Article III is the
legal linchpin for scientific cooperation, as it sets out three specific
measures that Parties should follow to
this end. The Contracting Parties agree
that,[85]
to the greatest
extent feasible and practicable,
a) information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy and efficiency of operations;
b) scientific personnel shall be exchanged in Antarctica between expeditions and stations;
c) scientific observations and results from Antarctica shall be exchanged and made freely available.
The raison d’etre of the Antarctic Treaty is to ensure peaceful
uses only and opportunities for scientists to exchange freely
information,
personnel and the results of research conducted in the Antarctic Treaty area.
For the foreseeable future, it seems that
bioprospecting in Antarctica will be
principally confined to the collection and discovery of new biological
resources. Consequently,
for the time being bioprospecting seems likely to
remain primarily a scientific activity, although it may eventually be undertaken
for a commercial purpose. For that reason, such activities will fall within the
ambit of Article III when it comes to addressing
cooperation amongst scientific
programmes and scientific personnel and exchanging scientific observations and
research results. Important
also is that reporting requirements will likely
furnish information about many of these activities, but such reports are not
likely
to include information about the commercial application of these
resources. This consequence points to two obvious concerns: first,
can the
desire to ensure commercial confidentiality and patent protection be reconciled
with the legal requirements of scientific
exchange and cooperation in Article
III? Second, can intellectual property rights be preserved as a useful means for
promoting and
encouraging the exchange of scientific information? During these
early years of bioprospecting in Antarctica, such queries remain
unanswered by
scientists, commercial investors and statesmen involved in the region.
Bioprospecting invites the commercialisation of research emanating from
Antarctica, which will require considerable financial investment.
Significant
legal issues remain unresolved, among them genetic ownership, property rights
and the legitimacy of acquiring these resources
in a state’s claimed
sector. Hence, bioprospecting in the frozen commons raises complex issues that
involve scientific and
commercial interests, environmental concerns, ethics and
equity, and considerations relating to international law and policy, including
the ability of the Antarctic Treaty system to deal fully and effectively with
these research activities. To be sure, bioprospecting
in the Antarctic will be a
peaceful activity, since conducting such research for military purposes is not
permissible under the Treaty.[86]
Nevertheless, such activities still might generate discord within the ATS if
they are undertaken for private commercial gain at the
expense of international
cooperation, freedom of scientific research, and environmental protection. At
the same time, given the ambiguity
and lack of precision about these concerns,
some bioprospecting companies may become reluctant to invest resources in
intensive work
on Antarctic micro-organisms and will likely concentrate their
efforts elsewhere.
The 1980 Convention on the Conservation of Antarctic
Marine Living Resources, which ‘applies to the Antarctic marine living
resources of the area south of 60o South latitude and to the
Antarctic marine living resources of the area between that latitude and the
Antarctic Convergence which
form part of the Antarctic marine
ecosystem,’[87] has as its
main objective ‘the conservation of Antarctic marine living
resources.’[88] Accordingly,
any taking of natural resources must be done such that it prevents a
‘decrease in the size of any harvested population
to levels below those
which ensure its stable recruitment. For this purpose its size should not be
allowed to fall below a level
close to that which ensures the greatest net
annual increment’(i.e., the maximum sustainable
yield).[89] It is hard to imagine
that genetic bioprospecting might be equated with ‘harvesting a
population.’ Even so, the line
where bioprospecting ends and harvesting
begins remains unclear. In any event, CCAMLR provides for reporting requirements
that mandate
that contracting parties must, ‘to the greatest extent
possible,’ report annually to the CCAMLR Commission and the Scientific
Committee ‘such statistical, biological and other data and
information’ as they need in the exercise of their
functions.[90] In these regards, it
seems reasonable to expect that harvesting activities involving genetic
bioprospecting and areas where they
are being conducted could be included in
those reports. Nonetheless, several questions remain concerning CCAMLR’s
role in dealing
with bioprospecting activities. For one, does CCAMLR have
sufficient legal competence to cover bioprospecting taking place on and
under
the ocean floor? Second, does CCAMLR have the technical capability to manage
this? Third, will it be necessary to devise separate
approaches by CCAMLR, and
the 1991 Environmental Protocol to the 1959 Antarctic Treaty to deal with
bioprospecting on land and in
the Southern Ocean? If so, how long will these
approaches take to become effective regulatory instruments? If a single approach
is
deemed more desirable by the ATCPs, how long will this take and will new
regulatory instruments be necessary? These are complex,
difficult questions that
must be resolved if CCAMLR is to assume an active and effective role in managing
bioprospecting activities
in the Southern
Ocean.[91]
D. Unresolved Bioprospecting Issues
A number of unresolved bioprospecting issues could pose serious
challenges for the ATCP group, particularly, though not exclusively,
between
claimant and non-claimant states. One fundamental issue is the lack of a
consensus definition of biological prospecting as
a research activity. One of
the better, more inclusive definitions of bioprospecting refers to ‘the
search for valuable chemical
compounds and genetic materials from plants,
animals and micro-organisms; the extraction and testing of those compounds and
materials
for biological activity; and the research and commercial development
of those that show
activity.’[92] This definition
is broader than other definitions, as it suggests the multi-phase nature of
bioprospecting, which includes the search
for, recovery of, testing of and
commercial development of biological materials. Even so, it is notable that the
terms ‘biological
prospecting,’ ‘bioprospecting,’
‘genetic resources’ or ‘genetic materials’ do not appear
in any major ATS instrument.[93]
A second legal concern relates to who has the authority to determine access
to genetic resources in Antarctica. Article 15 of the
Convention on Biological
Diversity asserts that the authority to determine access to genetic resources
lies with national governments
and is subject to their national legislation.
Contracting parties are expected ‘to create conditions to facilitate
access to
genetic resources for environmentally sound uses by other Contracting
Parties.’[94] Moreover, if
granted, access ‘shall be on mutually agreed terms’ and made
‘subject to prior informed consent of
the Contracting Party providing such
resources, unless otherwise determined by that Party.’ Here again the
ambiguity of the
Antarctic Treaty complicates the legal situation for conducting
bioprospecting activities. As in the case of outer continental shelf
delimitation, the Antarctic Treaty provides in Article IV(2) that, ‘[n]o
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.’ But what degree of legal authority, if any, do claimant
states possess
to regulate access? Does sufficient sovereignty reside in those
Antarctic claims to endow a claimant state with the necessary authority
to
determine access to Antarctic genetic resources in its claimed sector? No less
important, would this ‘authority’ give
claimant states the right of
refusal to a prospective bioprospector? If so, this situation would appear to be
directly in conflict
with the freedom access guaranteed in Article III of the
Antarctic Treaty for scientific research. On the other hand, does any private
company have the lawful authority absent state consent to undertake
bioprospecting activities in the Antarctic, or must it have a
sponsoring state
that is a party to the Antarctic Treaty? While nonparties are not likely to
engage in such genetic research in the
polar south, the issue remains unclear.
It might be useful for the ATCM to undertake a review of present ATS instruments
to determine
whether there already exists a sufficient regulatory framework for
authorising bioprospecting activities and for managing both terrestrial
and
marine bioprospecting activities in the Antarctic. In addition, such a review
might also consider the possibility of developing
a permitting process such as
that contained in Annex II of the Environmental Protocol that might be
implemented to regulate access
by
bioprospectors.[95]
A third
troublesome bioprospecting issue concerns whether and how monetary and other
benefits acquired from genetic resource research
should be shared. Who retains
how much of the profits, if any, derived from bioprospecting research? Are all
benefits to be retained
solely by the company who invests most heavily in the
research? Should claimant states figure into any exclusive scheme for
apportioning
benefits derived from genetic resources in their sector claim?
Should the ATCPs receive benefits as a special group? Or should there
be a
common fund so that peoples worldwide might gain from Antarctica’s
resources?[96] Finally, with respect
to the freedom of scientific research in the Antarctic Treaty area, should a
distinction be made between basic
scientific research, applied scientific
research and commercial use within the context of benefit-sharing? These are
important questions
affecting bioprospecting activities that could trigger
disruptive political reactions amongst the ATCPs.
In the search for answers
to these critical questions, it would seem prudent and practical that lessons
for bioprospecting might be
learned from the experience gained during the 1980s
of negotiating the prospecting phase for the Antarctic minerals regime, as well
as by consulting the text of its non-operational instrument, the Convention on
the Regulation of Antarctic Mineral Resource Activities
(CRAMRA).[97] Seven years of intense
negotiations amongst the ATCPs produced this long, complex regulatory instrument
for regulating mineral resources
activities, but it collapsed within eighteen
months of being opened for signature. Nevertheless, CRAMRA contains provisions
related
to ‘prospecting,’ (one of three phases used for Antarctic
minerals development), a special institutional structure, and
clever ways of
dealing with sovereignty issues. The manner in which CRAMRA addressed the
treatment of information and data may also
be worth considering as an approach
for dealing bioprospecting. As an ‘Antarctic mineral resource
activity,’ ‘prospecting’
in CRAMRA was formally made consonant
with the Antarctic Treaty, as Article 1 plainly asserted that it would
‘not include scientific
research activities within the meaning of Article
III of the Antarctic
Treaty.’[98] CRAMRA also
preserved the freedom of scientific exchange in prospecting activities, while
also protecting proprietary data for company
‘operators.’ To wit,
Article 16 of CRAMRA provides that, ‘[d]ata and information obtained from
Antarctic mineral
resource activities shall, to the greatest extent practicable
and feasible, be made freely available, provided that: (a) as regards
data and
information of commercial value deriving from prospecting, they may be retained
by the Operator in accordance with Article
37;...’ In addition, a special
institution, the Commission, was established, with one of its functions being
‘to adopt
measures relating to prospecting applicable to all relevant
Operators...’[99]
Finally,
it warrants noting that Chapter III constitutes the prospecting section in
CRAMRA, from which a number of points might be
gleaned relative to
bioprospecting in Antarctica. For one, prospecting in the minerals treaty could
not confer ‘upon any Operator
any right to Antarctic mineral
resources.’[100] The same
restriction might be made for genetic and biochemical resources. Second,
prospecting must ‘at all times be conducted
in compliance’ with
CRAMRA, although authorisation for prospecting is not required by any
institution established by the
convention.[101] Third, a
sponsoring state must ‘ensure that its Operators undertaking prospecting
maintain financial capacity, commensurate
with the nature and level of the
activity undertaken and the risks involved’ as well as to ensure timely
response action, under
strict liability
standards.[102] Fourth, in areas
where more than one operator is conducting prospecting, sponsoring states under
CRAMRA are required to ensure that
those operators ‘conduct their
activities with due regard to each others'
rights.’[103] Fifth,
sponsoring states are mandated to notify the Commission at least nine months
before prospecting activities
begin.[104] Such notification
must, inter alia, identify the precise location of the prospecting
activity, identify the resources that are the subject of the prospecting,
describe
the methods to be used, provide an assessment of the possible
environmental and other impacts of the prospecting, taking into account
possible
cumulative impacts,’ and certify that the operator has a
‘substantial and genuine link with the Sponsoring
State....’[105] All of these
provisions might contribute to addressing many of the protracted issues that
make bioprospecting such a problematic
concern to the ATCPs, but the reality is
that the issue is not going to go away. Sooner or later, complications arising
from one
ATCP state’s bioprospecting activities might lead to conflict
with another ATCP. Looking back to how the CRAMRA negotiators
handled similar
questions might provides important clues to resolving, or at least mitigating,
these legal dilemmas.
The present Antarctic Treaty regime does address the
physical impact of bioprospecting. However, the challenges posed by
bioprospecting
to the integrity of the Antarctic Treaty are formidable. Indeed,
the need to formulate an acceptable legal and policy basis for regulating
the
commercial development of genetic resources according to fundamental principles
of the ATS, underpinned by equity and fairness,
are complicated and
intimidating, much like the prospects for regulating minerals development in
Antarctica during the 1980s. Indeed,
the ability to formulate rules for
bioprospecting in Antarctica requires basic conceptual agreement amongst the
ATCPs about both
the objectives of such regulation and the form of managerial
scheme that would be politically acceptable, administratively practical,
and
legally balanced. In this regard, certain fundamental issues must be resolved if
pragmatic policies are to be negotiated successfully.
Among these are the need
for more detailed information on bioprospecting activities in Antarctica; the
formulation of a standardized
definition of bioprospecting; the determination of
whether the conduct of bioprospecting runs contrary to the freedoms of
scientific
research, access and exchange found in Article III of the Antarctic
Treaty; the identification of principal legal considerations
with respect to
ownership, use and protection of targeted resources; the determination of who
owns the commercial products derived
from bioprospecting activities; and the
legal connection between ATS instruments and other international agreements and
policies
affecting the conduct of bioprospecting.
IV. THE CHALLENGE OF JAPANESE WHALING
A third potentially serious challenge to the integrity of the Antarctic
Treaty lies in the political tensions arising between Japan
and Australia, both
Antarctic Treaty Consultative Parties, over Japan’s practice of lethal
whaling in the Southern Ocean. This
confrontation has grown more intense since
the mid-1980s, when Japan launched its national programme of lethally taking
whales under
the guise of conducting ‘scientific research.’ This
scientific whaling program continues today.
The international body created
to watch over national whaling operations is the International Whaling
Commission (IWC), which was
established in 1946 by the International Convention
for the Regulation of Whaling
(ICRW).[106]
As articulated in its preamble, the ICRW has as its fundamental purpose to
‘provide for the proper conservation of whale stocks
and thus make
possible the orderly development of the whaling
industry.’[107] The IWC is
supposed to take decisions that recommend policies to member governments in
order to ensure the protection of the world's
whale
stocks.[108]
Since the late
1970s, however, the IWC became dominated by governments who largely opposed the
practice of commercial whaling, primarily
on the grounds of conservation and
moral principle. The result of this political shift became most evident in 1986
with the IWC’s
adoption of a moratorium on commercial whaling that remains
in effect today,[109] and its
creation in 1994 of the Southern Ocean Whale Sanctuary, which prohibits all
commercial whaling within its borders, consisting
of nearly all of the Antarctic
Southern Ocean.[110] While
objecting to the moratorium, Japan indicated that it would cease
‘commercial whaling’, though in fact Japanese
whaling operations
continued under the pretext of so-called ‘scientific whaling’ that
is permitted under Article VIII
of the
ICRW.[111]
A. Japan’s Whaling Programme
After the IWC moratorium was adopted, Japan began ‘scientific
research’ hunts to provide a lawful basis for the resumption
of
sustainable whaling.[112] Japan
initiated its Whale Research Program under Special Permit in the Antarctic
(JARPA) in the 1987-88 Southern Ocean whaling
season.[113] The main focus of
JARPA was Antarctic minke whales, with a projected targeted take of 300 +/- 10%
each season.[114] However, since
the 1995-96 season, the annual take has increased to 400 +/-
10%.[115] Importantly, from 1987
through the 2004-05 season, an eighteen year period, over 6800 Antarctic minke
whales were taken in Antarctic
waters under JARPA—a hugely disparate
quantity when compared to the total of 840 whales taken globally by Japan for
scientific
research in the 1955-1986 period prior to the IWC’s commercial
whaling moratorium.[116]
In
2005, Japan announced its intention to undertake JARPA II, a large-scale
Antarctic programme, which began in the 2005-06 season.
The first two seasons
were dedicated to feasibility studies, in which the objectives of JARPA II were
simply defined by Japan as:
(1) monitoring of the Antarctic ecosystem; (2)
modeling competition among whale species and developing future management
objectives;
(3) elucidation of temporal and spatial changes in stock structure;
and (4) improving the management procedure for Antarctic minke
whale
stocks.[117] JARPA II began in the
2005-06 season and focused on Antarctic minke, humpback and fin whales. Japan
initially sought to take a maximum
of 850+/-10% minke whales, 50 humpback whales
and 50 fin whales, but following an immense public protest over the taking of
humpbacks,
their catch was
suspended.[118] Significantly,
JARPA II more than doubled the targeted number of whales taken for
‘scientific research’ during JARPA.
It is widely reported that much
of the whale meat generated by JARPA and JARPA II ends up for sale in fish
markets, for human
consumption.[119]
Since JARPA
began in 1986, its scientific value has been seriously criticised in the IWC. In
fact, IWC member governments (many of
which are ATCP states) have been
particularly disparaging of the Japanese research program which, to date, has
killed more than 11,000
whales,[120] but has produced
scant substantial scientific data from more than two decades years of supposed
research.[121] Nevertheless, every
year, despite the IWC's rejection of the Japanese whale research program in
Antarctica, Japan continues to issue
to itself scientific permits to kill
whales.[122] In 2007, the IWC
adopted Resolution 2007-1, which restated its deep-seated concern about the
special permit system, specifically
Japan’s JARPA II
program.[123]
B. The Australian Connection
The conflict between Japan’s ‘scientific whaling’
programme and Australia originates in the 1980s. Two decades prior,
Australia
had passed the Whaling Act of 1960, which dealt with the rational exploitation
of whales through licenses and permits.
It was not, however, ever enforced
against foreign nationals. Over the next two decades, however, sentiments in
Australia toward
whales and whaling changed radically, and the national
tolerance of whaling became supplanted by a pronounced conservation ethic.
Accordingly, in 1980, Australia’s Parliament repealed the Whaling Act 1960
and replaced it with the Whale Protection Act of
1980. This 1980 statute did
not merely regulate whaling activities. Instead, strong conservation provisions
were inserted, with
prohibitions on Australian nationals from killing,
capturing, injuring or interfering with whales, dolphins and porpoises in
Australian
waters.[124]
Regarding its jurisdictional reach, the Whale Protection Act adopted from
Australian fisheries law the Australian Fishing Zone (AFZ)
concept[125] as the basis for
establishing persons subject to this legislation. The Act applied to Australian
nationals irrespective of location,
but only applied to non-nationals if they
were present in the AFZ.[126] In
addition, application of the Whale Protection Act 1980 was made subordinate to
‘the obligations of Australia under international law, including
obligations under any agreement between
Australia and another country or
countries.’[127]
Consequently, regarding the protection of whales in the Southern Ocean, the Act
was not meant to apply to whaling activities conducted
in compliance with the
ICRW.[128]
Australia’s
concern with offshore ocean jurisdiction continued into the 1990s. In accordance
with the 1982 UN Convention on
the Law of the
Sea,[129] Australia formally
declared in 1994 an Exclusive Economic Zone
(EEZ),[130] which required
amending the AFZ to allow for this action under Australian fisheries
law.[131] The AFZ was re-defined
to encompass those waters adjacent to Australia and its external territories -
including the AAT - within
Australia’s claimed
EEZ.[132]
Similarly, under the Whale Protection Act 1980, the jurisdictional basis of the
Act's operation was changed from the AFZ to the EEZ. As a result, all whaling,
whether conducted
by Australians or non-nationals, in the purported Australian
EEZ off the AAT became regulated by Australian law. However, this Act
remained
subservient to Australia's international legal obligations, including those in
the ICRW and the 1959 Antarctic Treaty.
Legal protection for whales under
Australian law was again reinforced in 1999 as Parliament repealed the Whale
Protection Act 1980 and enacted new legislation, the Environment Protection and
Biodiversity Conservation Act 1999 (EPBC
Act).[133]
The Act establishes
an Australian Whale Sanctuary (AWS) to help assure the conservation of whales
and other cetaceans[134] and
acknowledges the ‘formal recognition of the high level of protection and
management afforded to cetaceans’ by Australia’s
government.[135] Accordingly, the
Act makes it an offence to kill, injure, take, interfere with, treat, or possess
whales within the AWS.
[136] As regards
the EPBC Act’s jurisdiction, the AWS is made cover the waters of the
Australian EEZ, which includes those EEZ waters
adjacent to the AAT. No
exception is made to exclude jurisdiction of this Act over non-Australian
nationals.[137] Moreover, the EBPC
Act contains no requirement that it must be made subordinate to Australia's
international obligations.
C. Australia’s Anti-Whaling Judicial Activism
Australia’s steadfast anti-whaling position over the past twenty
years concentrated on Japan and boiled over into Australia’s
Federal Court
in 2004. The case was brought by Humane Society International (HSI), a public
interest organization, against Kyodo
Senpaku Kaisha Ltd. (Kyodo), a Japanese
company engaged in killing whales in the Southern Ocean, specifically in the
AWS, within
the claimed EEZ off the
AAT.[138] Kyodo operated under a
special permit issued through JARPA by Japan, purportedly under Article VIII of
the ICRW. Not surprisingly,
neither the respondent nor the government of Japan
appeared in court throughout the duration of the proceedings.
The key questions in HSI turned on first, whether Japan
had violated the EPBC Act and second, whether Australia had the capacity to
impose legal authority over the Japanese whaling
fleet.[139] Although it was not
difficult for the Court to find Japan in violation of the EPBC, which prohibits
killing whales within the AWS
for any reason, the thornier question concerned
Australia’s claim of sovereignty and subsequent authority over the
Australian
Antarctic
Territory.[140] The Court reasoned
that, within the context of the 1982 UNCLOS and the provisions of the EPBC Act,
Australia’s EEZ and attendant
whale sanctuary did extend into Antarctic
circumpolar waters.[141]
Therefore, the Court concluded, that because the Japanese killed whales within
the Australian Antarctic Territory, they violated
the Australian EPBC
Act.[142]
Consequently, following more than three years of court proceedings and juridical
arguments, the Australian Federal Court declared
in 2008 that Kyodo had breached
sections 229-232 and 238 of the EPBC Act by killing, treating, and possessing
whales in the AWS in
the EEZ offshore the Australian Antarctic
Territory.[143] Subsequently the
Court issued an injunction to Kyodo, effective January 15 2008, to refrain from
the further killing, injuring, taking,
or interfering with any Antarctic minke,
fin, or humpback whales in the AWS bordering the
AAT.[144]
Australia thus became the first state to judicially
find that Japan’s whaling in the Southern Ocean Sanctuary was unlawful
under national law.[145]
It is
significant to note, however, that Japan publicly indicated in 2008 that it
would ignore the Australian Court’s
ruling.[146] The justification for
this was not unreasonable. Japan—along with 187 other states—does
not recognize Australia’s
sovereignty on the continent, nor its legal
authority to declare jurisdictional zones (i.e., an Australian EEZ or a whale
sanctuary)
offshore
Antarctica.[147] This highlights a
cardinal objection by Japan to Australia’s claims to an EEZ offshore
Antarctica, namely that Article VI mandates
that nothing in the Antarctic Treaty
can ‘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’
in Antarctica.[148] Nearly all
states—including Japan—interpret this to mean that all circumpolar
Antarctic seas should be considered high
seas, simply because no recognized
sovereign coastal states exist within the Antarctic Treaty
area.[149] Put simply, for Japan
and all the other states that do not recognise territorial claims in Antarctica,
all marine areas adjacent
to Antarctica are high seas because there are no
coastal states, or their legal equivalent, on the continent.
D. Anti-Whaling Environmental Activism
Since the HSI case, events have escalated tensions between Japan and
Australia over actions by environmental activists against Japanese
whaling
vessels in the Southern Ocean, especially in the proclaimed AWS zone. Led by the
Sea Shepherd Conservation Society (SSCS),
for the past two decades, these
activists have chased, harassed, rammed, and even sunk Japanese whaling vessels
on the high seas.[150] Not
surprisingly, Japan has accused the SSCS of eco-terrorism and acts of piracy at
seas, and has even threatened to bring suit against
that
group.[151] Japanese apprehension
over possible arrest by the Australian government has also affected its whaling
fleet. In January 2009, the
Yushin Maru No. 2, a Japanese harpoon vessel,
chose to sail thousands of kilometers to Indonesia for repairs rather than risk
arrest by landing in nearby
Australia or New
Zealand.[152] Finally, in
September 2009, Japan urged Australia’s government not to support the
SSCS’s effort to disrupt whaling operations
at sea. As a whale-friendly
state whose Federal Court in 2008 found Japanese whalers in violation of
Australia’s federal prohibition
against whaling in the AWS, an order that
has been publicly disregarded by the Japanese government, Canberra is unlikely
to physically
prevent the SSCS from engaging in its actions against Japanese
whalers.[153]
The analysis
above underscores the situation that Australia and Japan, two original parties
to the Antarctic Treaty, remain at serious
loggerheads over the Japanese
government’s continued support for whaling in the Southern Ocean, most
particularly in waters
offshore the AAT. Their treaty relationship is no doubt
further strained by the cosmetic character of Japan’s legal rationale
for
whaling, i.e., through special permits issued for ‘scientific
research.’ An argument could be marshalled that the
lethal whaling by
Japanese nationals is excessive (by taking 1000 minke whales a year) to the
point that it abuses the right of scientific
research provided for in Article
VIII of the ICRW.
Since much of Japan’s whaling occurs in Antarctic
waters, this invites the possibility that other ATCPs might confront Japan
on
the whaling issue in Antarctic Treaty fora. Thus far the ATCPs have been
reluctant to do so, for both legal and political reasons.
Under the Antarctic
Treaty, as previously mentioned, nothing can prejudice or affect the rights or
the exercise of the rights of
any state with regard to the high seas within the
treaty area.[154] The default
option has been to put off Japanese whaling from warranting ATCM attention, in
deference to dealing with the issue in
the IWC. This strategy has proved to be
ineffective.
The issue still remains as to whether Japan’s whaling
policy threatens the very purpose and intent of ATS instruments. For example,
what environmental risks to the marine ecosystem in the Southern Ocean are posed
by the activities of Japanese whalers? Can whaling
as an activity be viewed as
undermining the environmental principles set out in the Antarctic Treaty’s
Environmental Protection
Protocol? That is, does JARPA II as a national Japanese
activity undercut the ‘protection of the Antarctic environment and
dependent and [its] associated ecosystems and the intrinsic value of Antarctica,
including its wilderness and aesthetic and dependent
and associated
ecosystems...?[155] Specifically
in this regard, do Japanese whaling activities produce ‘detrimental
changes in the distribution, abundance or
productivity of species of populations
of species of fauna and flora,’ or cause ‘further jeopardy to
endangered or threatened
species or populations of such species,’ or lead
to ‘degradation of, or substantial risk to, areas of biological,
scientific,
historic, aesthetic or wilderness significance’ in the
Antarctic marine ecosystem?[156]
Should the aggressive confrontations between Japanese whaling vessels and
environmental activists in Antarctic waters be viewed as
a breach of the fiat
that the Antarctic area must be used exclusively for peaceful purposes and not
become the scene or object of
international
discord?[157] Notwithstanding the
mandate in Article VI of
CCAMLR,[158] might the Commission
on the Conservation of Antarctic Marine Living Resources be empowered to take a
bolder approach toward assessing
the environmental impacts of Japan’s
whaling activities on species within the Antarctic Treaty area? While these
queries remain
more hypothetical than realistic suggestions, they should not be
dismissed outright. Consequently, it must be realised that any of
these
strategies are unlikely to happen in the ATS consensus-based decision-making
system, simply because Japan could cast a negative
vote. However, should the
anti-whaling criticism against Japan become too shrill in any of the Antarctic
Treaty fora (or the IWC,
for that matter), Japan could walk away and quit the
ATS. While that scenario hardly seems likely, it would be the ultimate
manifestation
of Japan’s contempt for the worldwide condemnation of its
whaling and certain environmentalists’ aggressive actions aimed
at
shutting down its ‘scientific’ whaling activities. The harsh
political and legal reality might well be that the IWC,
the ATCP group and the
Japanese government would all be less well off in that instance.
V. CONCLUSION
Over the past five decades, the Antarctic Treaty has proved itself to be
amongst the most successful multilateral agreements negotiated
in the
20th century. It demilitarises, denuclearises and guarantees freedom
of scientific research, exchange of information and programmatic
cooperation
between its member states over one tenth of the earth’s surface. But times
have changed and new political, economic
and legal complications have arisen. We
now live in an era of accelerating technological development, rapidly unfolding
globalisation
and escalating natural resource demands. Accordingly, new
pressures of economic need and political circumspection could generate
negative
impacts upon the cooperative character of the Antarctic Treaty regime. Since the
1980s, the Antarctic Treaty System has
had to confront certain troublesome
issues that continue to tax its integrity: global climate change, tourism, and
illegal, unregulated
and unreported fishing by unlicensed fishers. To be sure,
they will still need to be addressed. But certain other more pressing concerns
about the security of the Antarctic Treaty regime have surfaced over the past
decade that must be tackled in coming years. These
include the possibility that
claimant states might opt to implement national continental shelf claims
offshore Antarctica, or that
companies or governments might undertake widespread
unregulated bioprospecting activities in the treaty area, or that tensions might
become more exacerbated between Japan and Australia and antagonistic
environmental activists over Japanese whaling in Antarctic waters.
If any of
these scenarios should occur, real risks and potentially high costs might be
imposed upon the security of the Antarctic
Treaty.
It is important to
understand, however, that none of these challenges is inevitable. The critical
factor in this calculus is the national
interest of the party states themselves.
So long as the principal ATCP governments perceive that their own national
interests are
better served as partners in the Antarctic Treaty system, they are
likely to defer disruptive tactics and continue to support and
implement ATS
policies that are jointly negotiated and agreed upon. More significantly, there
is little evidence to suggest that
any Antarctic Treaty state has the political
will to defect from the treaty relationship to pursue its own ends on or around
the
continent in the foreseeable future. The main attraction of the ATS is that
governments can cooperate together to make the Antarctic
a demilitarised zone of
peace where scientific research can be planned, undertaken and shared to benefit
all people on the planet.
If the Antarctic commons is to be preserved and
conserved under these conditions for future generations, then exercising and
sustaining
that goal ranks as the critical consideration. That task undoubtedly
cannot help but remain the preeminent challenge for Antarctic
Treaty governments
in the coming decades.
[∗] Director, Institute for
International Law and Politics, Georgetown University; Professor of
International Law, Department of Government
and Edmund A. Walsh School of
Foreign Service, Georgetown University. This paper develops the presentation
under the same title delivered
at the Colloquium Responding to Contemporary
Challenges and Threats to Antarctic Security: Legal and Policy Perspectives,
held at the School of Law, University of Canterbury, 5-7 July 2009. The author
would like to acknowledge the generous support provided
by the New Zealand Law
Foundation which enabled attendance at this Colloquium. The author wishes to
express his appreciation for
constructive comments made on this article by Alan
D Hemmings. Any errors of commission or omission are, of course, the sole
responsibility
of the author.
[1]
Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71
(entered into force 23 June
1961).
[2] Antarctic Treaty,
preamble.
[3] Antarctic
Treaty, art III.
[4] The
seven claimants are Argentina, Australia, Chile, France, New Zealand, Norway and
the United Kingdom.
[5]
Antarctic Treaty, art
II.
[6] Antarctic Treaty,
art III.
[7] Antarctic
Treaty, art IV.
[8]
Antarctic Treaty, art
IV(2).
[9] Antarctic
Treaty, art I.
[10]
Antarctic Treaty, art VII.
[11] Antarctic Treaty,
art V.
[12] The area of the
Antarctic region is 20.327 million sq km or 7.84829 sq. miles. Central
Intelligence Agency, The World Factbook (Southern Ocean),
<https://www.cia.gov/library/
publications/the-world-factbook/geos/countrytemplate_oo.html>
at 24 September 2009.
[13] The
acceding ATCPs are: Brazil, Bulgaria, China, Ecuador, Finland, Germany, India,
Italy, Republic of Korea, the Netherlands, Peru,
Poland, Spain, Sweden, Ukraine
and Uruguay. The 19 non-Consultative Parties are Austria, Belarus, Canada,
Colombia, Cuba, Czech Republic,
Korea (DPRK), Denmark, Estonia, Greece,
Guatemala, Hungary, Monaco, Papua New Guinea, Romania, Slovak Republic,
Switzerland, Turkey
and Venezuela.
[14] Antarctic Treaty,
art IX(1)(f).
[15] See
Christopher C Joyner, Governing the Frozen Commons: The Antarctic Regime and
Environmental Protection (1998).
[16] In 1995 at ACTM XIX, the
single category of ‘recommendations’ was replaced with
‘measures’ (intended to be
legally binding on ATCPs),
‘decisions’ (internal matters adopted and approved at ATCMs), and
‘resolutions’
(nonbinding texts adopted at ATCMs) (Decision 1
(1995)). All ATCM Measures, Recommendations, Decisions, ATCM Working Papers
(WP),
Information Papers (IP), ATCM Final Reports and CEP Reports cited in this
article are reproduced on the Antarctic Treaty website
online:
<http://www.ats.aq/index_e.htm>
at 24 November 2009, unless otherwise
stated.
[17] Recommendation
III-VIII, approved (1964), 17 UST 996, TIAS No. 6058 (1965), as modified in 24
UST 992, TIAS No. 7692 (1973). The
Agreed Measures were superseded by Annex II
to the 1991 Protocol on Environmental Protection to the Antarctic Treaty,
opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January
1998), when the Protocol entered into
force.
[18] Convention for the
Conservation of Antarctic Seals, opened for signature 1 June 1972, (1972) 11
ILM 251 (entered into force 11 March
1978).
[19] Convention on the
Conservation of Antarctic Marine Living Resources, opened for signature 20
May 1980, 1329 UNTS 47 (entered into force 7 April
1982).
[20] Convention on the
Regulation of Antarctic Mineral Resource Activities, opened for signature 2
June 1988, 27 ILM 868 (not in
force).
[21] 1991 Protocol on
Environmental Protection to the Antarctic Treaty, opened for signature 4
October 1991, 30 ILM 1455 (entered into force 14 January
1998).
[22] Philippe Sands,
Principles of International Environmental Law – Volume I Standards,
Principles and Implementation (1995), 529.
[23] A series of United
States-Soviet bilateral nuclear arms control measures were adopted in the wake
of the Cuban missile crisis of
October 1962.
[24] See Joyner, above n. 15,
120-146.
[26]
Malcolm W Browne, ‘France and Australia Kill Pact on Limited Antarctic
Mining and Oil Drilling’, New York Times, 25 September 1989, p.
A10.
[27] Joyner, above n 15,
78-81.
[28] See R I A Novosti,
Both Russian mini-subs surface after symbolic North Pole Dive, 2 August
2, 2007, online:
<http://en. rian.ru/russia/20070802/70229618.html>
at 11
December 2009; Charles Digges, Russian Arctic Underwater Oil Expedition
Researches North Pole, Environment News Service, 2 August 2007, online:
<http://www.ens-newswire.com/ens/aug2007/2007-08-02-01.asp>
at 25
September 2009; James Graff, ‘Fight for the Top of the World’,
Time Magazine 19 September 2007, online at:
<http://www.time.com/time/world/article/0,8599,1663445,00.html>
at 25
September 2009; and generally Christopher C Joyner, ‘The Legal Regime for
the Arctic Ocean’, (2009) 19 Florida State University Journal of
Transnational Law & Policy (in
press).
[29] See the discussion
in the text below at notes 39-53.
[30] While deposits of poor
quality coal have been found on the continent, no hydrocarbons or commercially
recoverable minerals have actually
been discovered on or around the continent.
Even so, speculation that the continental shelves of Antarctica may
contain petroleum is fuelled by discovery of significant oil reserves in the
subdivisions adjacent to Antarctica of Gondwanaland,
the supercontinent that
broke apart 200 million years ago. This is especially true for Australia, South
Africa, South America and
South Asia. Such speculation drew support in 1973 when
the research vessel Glomar Challenger found hydrocarbons associated with
petroleum deposits in the Ross Sea. J Spivak, ‘Frozen Assets’,
Wall Street Journal, 21 February 1974, p. 1. The following year, the U.S.
Geological Survey estimated that there could be deposits of 45 billion barrels
of oil on the continental shelves of West Antarctica. N A Wright and P L
Williams, Mineral Resources of Antarctica, Geological Survey Circular 705
(Reston, VA: USGS, 1974). In 2000, the Energy Information
Administration, which maintains the official energy statistics for the U.S.
Government, estimated
that ‘the Weddell and Ross Sea areas alone are
expected to possess 50 billion barrels of oil - an amount roughly equivalent
to
that of Alaska’s estimated reserves.’ Energy Information
Administration, Antarctica Fact Sheet (2000),
<http://www.eia.doe.gov/emeu/cabs/antarctica.html>
at 9 October
2009.
[31]United Nations
Convention on the Law of the Sea, opened for signature 10 December 1982,
1833 UNTS 3 (entered into force 16 November 1994). [Hereinafter 1982
UNCLOS].
[32] Article 76(1) 1
defines the continental shelf of a
coastal State as ‘the seabed 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.’
It goes on to assert in article 76(3) that that ‘the continental margin
comprises the submerged prolongation of the land mass
of the coastal State, and
consists of the seabed and subsoil of the shelf, the slope and the rise.’
Thus, the combination
of paragraphs 1 and 3 forms the legal definition of the
continental
shelf and
declares that a coastal State’s territory extends seaward under water,
with the continental shelf constituting the ‘submerged
prolongation of its
land territory’ and the outer limit of that prolongation measured
according to the ‘submerged prolongation
of the land mass.’ Office
of Legal Affairs, Division for Ocean Affairs and the Law of the Sea,
Training
Manual for Delineation of the Outer Limits of the Continental Shelf Beyond 200
Nautical Miles and for Preparation of Submissions
to the Commission on the
Limits of the Continental Shelf, (2006) I-18 [Hereinafter OCS Training
Manual].
[33] The first step is
for a coastal state to determine the outer limits of its continental margin. OCS
Training Manual, Ibid I-26. Then,
the coastal state must prove that its
continental shelf satisfies the
‘Test of Appurtenance’, which requires that the offshore continental
shelf extend ‘throughout
the natural prolongation of its submerged land
territory to the outer edge of the continental margin’ beyond 200 nautical
miles,
measured from the coastal state’s baselines. OCS Training Manual,
Ibid I-26; 1982 UNCLOS, art
76(1). Third, once the Test of Appurtenance is satisfied, a coastal state must
verify that the lines determined in step one
do not exceed the constraint lines
defined in paragraphs 5 and 6 of art 76. OCS Training Manual, Ibid I-26;
1982 UNCLOS, art 76(5) and (6). Finally, that coastal
state must use the formulae lines and the constraint lines from step three
to delineate
the outer limits of its continental shelf. OCS Training Manual,
Ibid I-26; 1982 UNCLOS, art 76(7).
[34] OCS Training Manual,
Ibid I-26.
[35]
1982 UNCLOS, Art
76(8).
[36] Commission on the
Limits of the Continental Shelf (CLCS), Rules of Procedure of the Commission
on the Limits of the Continental Shelf, U.N. Doc. CLCS/40/Rev.1, Annex II
(17 April 2008).
[37] 1982
UNCLOS, art 76(8).
[38]
Ibid.
[39] Commission on the
Limits of the Continental Shelf (CLCS), Outer Limits of the Continental Shelf
beyond 200 Nautical Miles from the
Baselines: Submissions to the Commission:
Submission by Australia,
<http://www.un.org/Depts/los/clcs_new/submissions_files/submission
_aus.htm>
and Executive Summary
<http://www.un.org/Depts/los/clcs_new/submissions_files/
aus04/Documents/aus_doc_es_web_delivery.pdf>
at 28 September 2009. Chile has submitted only ‘preliminary
information’.
For a more detailed treatment of these submissions, see Alan
D Hemmings and Tim Stephens, ‘Reconciling Regional and Global
Dispensations: The Implications of Subantarctic Extended Continental Shelf
Penetration of the Antarctic Treaty Area’ [2008] NZYbkIntLaw 30; (2009) 6 New Zealand Yearbook of
International Law, 273.
[40] Commission on the Limits of
the Continental Shelf (CLCS), Outer Limits of the Continental Shelf beyond
200 Nautical Miles from the Baselines: Submissions to the Commission: Submission
by New
Zealand,
<http://www.un.org/Depts/los/clcs_new/submissions_files/ submission_nzl.htm>
at 28 September 2009.
[41] Note number:
NZ-CLCS-TPN-02 (19 April 2006),
<http://www.un.org/Depts/los/clcs_new/
submissions_files/nzl06/nzl_doc_es_attachment.pdf>
at 28 September 2009.
[42]
Ibid.
[43] See Outer Limit of
the Continental Shelf, Argentine Submission, Executive Summary,
<http://www.un.org/Depts/los/clcs_new/submissions_files/arg25_09/arg2009e_summary_eng.
pdf>,
at 13 December 2009, 11-16, 22.
[44] Ibid Figure 1 (Map of the
Zone between the Baseline and the Outer Limit of the Continental Shelf), 17.
[45] Continental Shelf
Submission of Norway with respect to Bouvetoya and Dronning Maud Land, Executive
Summary,
<http://www.un.org/Depts/los/clcs_new/submissions_files/nor30_
09/nor2009_executivesummary.pdf>
at 28 September 2009.
[46] Ibid
9.
[47] Continental Shelf
Preliminary Information of Chile,
<http://www.un.org/Depts/los/clcs_new/
submissions_files/preliminary/chl2009preliminaryinformation.pdf>
at 28 September 2009.
[48] Ibid
19.
[49] United Kingdom, Note
No. 168/08 (9 May 2008), online at:
<http://www.un.org/Depts/los/
clcs_new/submissions_files/gbr08/gbr_nv_9may2008.pdf>
at 28 September 2009.
[50]
Ibid.
[51] Submission by the
United Kingdom of Great Britain and Northern Ireland, 11 May 2009,
<http://www.un.org/Depts/los/clcs_new/submissions_files/submission_gbr_45_2009.htm>
at 28 September 2009.
[52] Ibid
5.
[53] Permanent Mission of
France to the United Nations, Note No.HR/cl No. 69, February 2009,
<http://www.un.org/Depts/los/clcs_new/submissions_files/fra09/fra_note_feb2009e.pdf>
at 28 September 2009.
[55]
The author is grateful to Alan Hemmings for pointing this out. Tensions might
arise, however, out of Australia’s extended continental
shelf claims made
around Antarctic and sub-Antarctic islands that penetrate south of 60º
South Latitude, the ambit of the Antarctic
Treaty. See Hemmings and Stephens,
‘Reconciling Regional and Global Dispensations,’ above n
39.
[56] 1982 UNCLOS, art
5.
[57] Antarctic Treaty
Consultative Meeting XXXII, Washington Ministerial Declaration on the Fiftieth
Anniversary of the Antarctic Treaty,
Washington, DC, 6 April 2009,
<http://www.state.gov/g/oes/rls/other/2009/121339.htm>
at 28 September
2009.
[58] The literature on
bioprospecting in Antarctica has been considerable over the last seven years.
See, e.g., D S Nichols et al, ‘Bioprospecting
and Biotechnology in
Antarctica’ in J Jabour-Green and M Haward (eds), The Antarctic: Past,
Present and Future, Antarctic CRC Research Report number 28, (2002),
85-102; J Jabour-Green and D Nichols, ‘Bioprospecting in Areas Outside
National
Jurisdiction; Antarctica and the Southern Ocean’ (2003) 4
Melbourne Journal of International Law, 77; Sam Johnson and Dagmar Lohan,
The International Regime for Bioprospecting: Existing Policies and Emerging
Issues for Antarctica, submitted as a review paper by United Kingdom/Norway
to the XXVI ATCM (Madrid, 2 – 20 June 2003) (IP 075, 2003); Dagmar Lohan
and Sam Johnson, Bioprospecting in Antarctica (UNU-IAS Report, 2005);
Donald Rothwell, ‘Southern Ocean Bioprospecting and International
Law,’ in Alan D Hemmings and
Michelle Rogan-Finnemore (eds), Antarctic
Bioprospecting (2005), 211. Sarah A Laird, Rachel Wynberg and Sam Johnson,
Recent Trends in the Biological Prospecting, submitted as an
information paper by Belarus / UNEP to the XXIX ATCM (Edinburgh, 12 – 23
June 2006) (IP 116, 2006); B P Herber,
‘Bioprospecting in Antarctica: The
Search for a Policy Regime’ (2006) 42 Polar Record 139; Alan D
Hemmings and Michele Rogan-Finnemore, ‘Access, Obligations, and Benefits:
Regulating Bioprospecting in the Antarctic’,
in Michael I Jeffery, Jeremy
Firestone, and Karen Bubna-Litic (eds), Biodiversity Conservation, Law +
Livelihoods: Bridging the North-South Divide (2008), 529; A Guyomard,
‘Bioprospecting in Antarctica: A New Challenge for the Antarctic Treaty
System’ in Francesco
Francioni and Tullio Scovazzi, (eds),
Biotechnology and International Law (2006); and Alan D Hemmings,
‘Biological Prospecting in the Antarctic Treaty Area’, paper
prepared for the Intergovernmental
Meeting of Experts on Biological Prospecting
in the Antarctic Treaty Area, 3-5 February, 2009, Baarn, The Netherlands, 3-5.
[59] See, eg, D N Thomas and G S
Dieckmann, ‘Antarctic Sea Ice - A Habitat for Extremophiles’ (2002)
295 Science 641; and P B Price ‘Microbial Life in Glacial Ice and
Implications for a Cold Origin of Life’ (2007) 59 FEMS Microbial
Ecol., 217.
[60]See, eg, C-H
C Cheng, P A Cziko, and C W Evans, ‘Nonhepatic Origin of Notothenioid
Antifreeze reveals Pancreatic Synthesis as
Common Mechanism in Polar Fish
Freezing Avoidance’ (2003) 103 Proceedings of the National Academy of
Sciences, 10491.
[61] See the
discussion in Dagmar Lohan and Sam Johnson, UNU-IAS Report: Bioprospecting in
Antarctica (2005) 7-13,
<http://www.ias.unu.edu/binaries2/antarctic_bioprospecting.pdf>
at 29
September 2009.
[62] Belgium,
An Update on Biological Prospecting in Antarctica, Including the Development
of the Antarctic Biological Prospecting Database, (WP 11) (2008) submitted
to the XXXI ATCM (Kyiv, 2 – 13 June 2008). [Hereinafter Antarctic
Bioprospecting Database]. While krill attracts the largest attention,
the
remainder is applied to a variety of Antarctic biota which includes
micro-organisms, invertebrates (eg, sponges), vertebrates
(eg, fish) and plants
(eg, algae). About 56 percent of the database entries are marine-based. Ibid
4.
[63] Ibid
4.
[64] Ibid
7.
[65] Biological Prospecting
in Antarctica: Compliance Is the Next Step, ECO No. 3 April 6-17, 2009, 2
(author file). Amongst the companies involved in commercially-oriented research
on and development
of genetic resources in Antarctica are: A/F Protein Inc,
Agriculture Victoria Serv Pty, Angulas Anguinaga, Antarctic Pharma AB,
Aqua
Bounty Technologies, Arunachal University, Benares Hindu University, Biozyme
Systems Inc., Centre National de la Recherche Scientifique,
Clarins, Council of
Scientific and Industrial Research, Daicel Chem, Daiwa Kasei, DSM NV, Good
Humor-Breyers Ice Cream, Green Blueprint
International, Henkel, Institute of
Advanced Industrial Science & Technology, Kang Jae Shin, Kao Corp, Kansai
University, Katayama
Tarou, Korea Food Research Institute, Korea Ocean Research
and Development Institute, Landcare Research, Lipotec S.A., Ljakh Pavlovna,
Loders-Croklaan BV, Lu Gao, Magellan BioScience, Molecular Plant Breeding CRC,
Morski Inst Rybackis, Nagata Sangyo, Neptune Technologies
& Bioress, New
England Biolabs, New Mexico Tech Research Foundation, Nichiwa Sangyo, Nihon
Nosan Kogyo, Nippon Paper Industries,
Nippon Suisan Kaisha Ltd, Novo Nordisk,
Nomura Nobuhiko, Novozymes A/S, Phairson Medical Inc., PharmaMar,
Pharmanutrients, Puratos
Naamloze Vennootschap, Regents of the University of
California, Rigel Pharmaceuticals Inc, Shin Dong Bang Corporation, Symrise,
Third
Institute of Oceanography SOA, Tokuyama Corp, Tokyo University of Science,
Transucrania, Unilever, Université de Liège,
University of Chile,
University of Shanghai, University of South Florida, Verenium and ZyGEM.
Source: Antarctic Bioprospecting Database,
Ibid
8-9.
[66] Antarctic
Bioprospecting Database, Ibid
8.
[67] SCAR, Scientific
Research in Antarctica, (IP 123, 1999) submitted to the XXIII ATCM (Lima, 24
May – 4 June 1999).
[68]
UK, Biological Prospecting in Antarctica (WP 93, 2002) submitted to the
XXV ATCM (Warsaw, 10 – 20 September 2002).
[69] New Zealand,
Bioprospecting in Antarctica, An Academic Workshop, (IP 47, 2003)
submitted to the XXVI ATCM XXVI (Madrid, 9 – 20 June 2003) and UK and
Norway, Bioprospecting, (IP 75, 2003) submitted to the XXVI ATCM
(Madrid, 9 – 20 June
2003).
[70] Final Report of
the Committee on Environmental Protection (CEP VI) (2003)
[178].
[71] Final Report of
the Twenty-Seventh Antarctic Treaty Consultative Meeting (Cape Town, 24 May
– 4 June 2004), Annex
K
[72] UNEP, Industry
Involvement in Antarctic Bioprospecting, (IP 106, 2004) submitted to the
XXVII ATCM (Cape Town, 24 May – 4 – 17 June
2004).
[73] New Zealand and
Sweden, Biological Prospecting in Antarctica, (WP 13, 2005) submitted to
the XXVIII ATCM (Stockholm, 6 – 17 June
2005).
[74] Spain, Biological
Prospecting in Antarctica, (IP-08-ES, 2005) submitted to the XXVIII ATCM
(Stockholm, 6 – 17 June 2005) and UNEP, Recent Developments in
Biological Prospecting Relevant to Antarctica, (WP 93, 2005) submitted to
the XXVIII ATCM (Stockholm, 6 – 17 June
2005).
[75] Resolution 7, XXVIII
ACTM (2005).
[76]
Ibid.
[77] Argentina,
Argentine Activities of Bioprospecting and Bioremediation in Antarctica,
(IP-112, 2006) submitted to the XXIX ATCM (Edinburgh, 12 – 23 June 2006).
Argentina has been the only ATCP government to report
to an ATCM on its
bioprospecting activities.
[78]
France, In Search of a Legal Regime for Bioprospecting in Antarctica, (IP
13, 2006) submitted to the XXIX ATCM (Edinburgh, 12 – 23 June 2006) and
UNEP, Recent Trends in the Biological Prospecting, (IP 116,
2006) submitted to the XXIX ATCM (Edinburgh, 12 – 23 June 2006).
[79] UNEP, Biological
Prospecting in Antarctica: Review, Update and Proposed Tool to Support a Way
Forward, (IP-067, 2007) submitted to the XXX ATCM (New Delhi, 30 April
– 11 May 2007).
[80]
Netherlands, Belgium and France, Biological Prospecting in the Antarctic
Treaty Area - Scoping for a Regulatory Framework (WP-036, 2007) submitted to
the XXX ATCM (New Delhi, 30 April – 11 May
2007).
[81] Belgium, An Update
on Biological Prospecting in Antarctica, above n
62.
[82] Netherlands, Report
of the ATCM Intersessional Contact Group to examine the issue of Biological
Prospecting in the Antarctic Treaty Area, (WP-4, 2008) submitted to the XXXI
ACTM (Kyiv, 2 – 12 June 2008).
[83] Resolution 9 (2009)
Collation and Use of Antarctic Biological
Material.
[84] 1959
Antarctica Treaty, arts I-III.
[85] 1959 Antarctic
Treaty, arts III(1)(a)-(c).
[86] 1959 Antarctic
Treaty, art I.
[87] 1980
CCAMLR, art I(1).
[88]
1980 CCAMLR, art
II(1).
[89] 1980 CCAMLR
art II(3)(a).
[90] 1980
CCAMLR art XX(1) and (2).
[91] The author is grateful to
Alan Hemmings for elucidating these points.
[92] Alan Hemmings and Michele
Rogan-Finnemore, ‘Access, Obligations, and Benefits’ above n 58,
537.
[93] The Convention on
Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (in
force 29 December 1993) defines ‘genetic resources’ as
‘genetic material of actual or potential value’
and ‘genetic
resources’ as ‘genetic material of actual or potential value’
(art II).
[94] With the
conspicuous exception of the United States, all of the other Antarctic Treaty
states—claimants and non-claimants—are
parties to the Convention
on Biological Diversity.
[95] Art 3.1 of Environmental
Protocol to the Antarctic Treaty; Netherlands, Report of the ATCM
Intersessional Contract Group to Examine the Issue of Biological Prospecting in
the Antarctic Treaty Area, ATCM 17 WP 4, ATCM XXXI (2-13 June 2008), 5,
<http://www.bioprospector.
org/bioprospector/Resources/actm/Atcm31_wp004_e.pdf>
at 29 September 2009.
[96]
Interestingly, neither India nor Brazil have been active participants in the
Antarctic bioprospecting debate, even though in the
past they have been leading
advocates for greater equity on other issues. The author is grateful to Alan
Hemmings for making this
point.
[97] But Alan Hemmings has
opined that, ‘I wouldn’t dispute the sense in looking for useful
technical fixes, but it has seemed
to me that as the last ATS instrument of the
Cold War period, CRAMRA suffers from a central and possibly fatal flaw in
relation to
subsequent use as a model – that is that the sort of
relationship conceived as possible between the operator and a sponsoring
state
now seems much more problematical’ - Personal communication with the
author, 4 October 2009.
[98]
1988 CRAMRA, art 1(7). In CRAMRA ‘prospecting’ is defined as
‘activities, including logistic support, aimed at identifying
areas of
mineral resource potential for possible exploration and development, including
geological, geochemical and geophysical investigations
and field observations,
the use of remote sensing techniques and collection of surface, seafloor and
sub-ice samples’ (art
1(8)).
[99] 1988 CRAMRA,
art 21(1)(e).
[100] 1988
CRAMRA, art 37(1).
[101]
1988 CRAMRA, art
37(2).
[102] 1988
CRAMRA, art 37(2)(b).
[103]
1988 CRAMRA, art
37(4).
[104] 1988
CRAMRA, art 37(7).
[105]
1988 CRAMRA, art
37(7).
[106] International
Convention for the Regulation of Whaling, opened for signature 2 December
1946, 161 UNTS 74 (entered into force 10 November 1948). [Hereinafter ICRW] In
2009, there are 88 parties to the ICRW, including Japan, Australia and
the
United States.
[107] 1946
ICRW, preamble.
[108]
1945 ICRW, arts II, IV, V, and VI.
[109] On 23 July 1982, members
of the IWC voted by the necessary three-quarters majority to implement a pause
on commercial whaling: ‘Not
withstanding the other provisions of paragraph
10, catch limits for the killing for commercial purposes of whales from all
stocks
for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall
be zero. This provision will be kept under review, based
upon the best
scientific advice, and by 1990 at the latest the Commission will undertake a
comprehensive assessment of the effects
of this decision on whale stocks and
consider modification of this provision and the establishment of other catch
limits.’
Schedule to the Convention, paragraph 10(e), online:
<http://www.iwcoffice.org/ commission/schedule.htm>
at 6 October 2009. The
vote was 25 in favor, 7 opposed, with 4 abstentions. Member governments voting
in favour of the moratorium
included Antigua, Australia, Belize, Costa Rica,
Denmark, Egypt, France, Germany, India, Kenya, Mexico, New Zealand, Oman, St.
Lucia,
St. Vincent, Senegal, the Seychelles, Spain, Sweden, the United Kingdom
and the United States. The seven governments voting in opposition
were Brazil,
Iceland, Japan, Norway, Peru, South Korea and the Soviet Union. Chile, China,
the Philippines, South Africa and Switzerland
abstained.
[110] See IWC, Whale
Sanctuaries: Establishment of the International Whaling Commission's
Sanctuaries
<http://www.iwcoffice.org/conservation/sanctuaries.htm>
at
6 October 2009. At its 46th (1994) Annual Meeting, the IWC adopted the Southern
Ocean Sanctuary as an area in which commercial
whaling is prohibited. In this
regard see also International Fund for Animal Welfare, The Southern Ocean
Sanctuary
<http://www.ifaw.org/ifaw_canada-french/join_campaigns/protecting_whales_around_the_world/protecting_whales_and_their_habitats/sanctuaries_for_whales_a_global_approach/the_southern_ocean_sanctuary/index.php>
at 6 October 2009. Japan was the only IWC member that voted against the
Sanctuary, which is ‘designed to allow the natural
restoration of an
ecosystem devastated by commercial
whaling.’
[111] As art
VIII of the ICRW provides in relevant part:
1. Notwithstanding anything contained in this Convention any Contracting
Government may grant to any of its nationals a special permit
authorizing that
national to kill, take and treat whales for purposes of scientific research
subject to such restrictions as to number
and subject to such other conditions
as the Contracting Government thinks fit, and the killing, taking, and treating
of whales in
accordance with the provisions of this Article shall be exempt from
the operation of this Convention. Each Contracting Government
shall report at
once to the Commission all such authorizations which it has granted. Each
Contracting Government may at any time
revoke any such special permit which it
has granted.
2. Any whales taken under these special permits shall so far as
practicable be processed and the proceeds shall be dealt with in accordance
with
directions issued by the Government by which the permit was granted.
See
also International Whaling Commission, Catches Taken Under Scientific Permit:
List of Special Permit Catches Since 1985 (Table),
<http://www.iwcoffice.org/conservation/table_
permit.htm> at 4 October
2009. Japan issues a scientific whaling permit to itself each year since the
moratorium was implemented
in 1986. Ibid. Japan’s scientific whaling
research is conducted by the Institute of Cetacean Research (ICR), a
privately-owned,
non-profit institution. The institute receives its funding from
government subsidies and Kyodo Senpaku, which handles processing
and marketing
of research ‘byproducts.’ See Institute of Cetacean Research
<http://www.icrwhale.org/eng-index.htm>
at 8 October 2009.
[112] In response to the
charge that this is commercial whaling in disguise, Japan has provided the
following response: ‘This characterization
is part of the anti-whaling
rhetoric. In fact, the purpose of Japan’s research is science –
science that will ensure
that when commercial whaling is resumed it will be
sustainable. From 1987 to 2006, Japanese scientists presented 182 scientific
documents
to the Scientific Committee of the International Whaling Commission
(IWC) and had 91 papers published in peer-reviewed journals.
The most recent
review of JARPA by the IWC’s Scientific Committee in December 2006 made a
number of recommendations for additional
data analysis and concluded that
‘the dataset provides a valuable resource to allow investigation of some
aspects of the role
of whales within the marine ecosystem and that this has the
potential to make important contribution to the Scientific Committee’s
work in this regard as well as the work of other relevant bodies such as the
Convention for the Conservation of Antarctic Marine
Living Resources’. The
Scientific Committee also agreed to its earlier (1997) conclusion that the
results from the research
program ‘have the potential to improve
management of minke whales in the Southern Hemisphere.’ See Japan’s
research
whaling in the Antarctic
<http://www.icrwhale.org/eng/
FAQResearch.pdf> at 6 October 2009
(footnote omitted).
[113] Tim
Stephens and Donald R. Rothwell,
‘Japanese Whaling in Antarctica: Humane Society International Inc. v.
Kyodo Senpaku Kaisha Ltd’ (2007), 16 Review of European
Community and International Environmental Law,
243.
[114]
Ibid.
[115]
Ibid.
[116] Resolution on
JARPA II, IWC Res. 2005-1 (2005)
<http://www.iwcoffice.org/meetings/
resolutions/Resolution2005-1.pdf>
at 6 October 2009.
[117] IWC,
Scientific Permit Whaling (Antarctic 2-JARPA II)
<http://www.iwcoffice.org/
conservation/permits.htm#jarpa> at 6 October
2009. The research methods for cetaceans for JARPA II are similar to those for
JARPA.
As reported to the IWC, the non-lethal research techniques to be used
include sighting surveys, biopsy sampling, acoustic surveys
for prey species and
the collection of oceanographic data.
Ibid.
[118] See Jonah Fisher,
‘Diary: Jonah and the Whale-Chasers,’ BBC News, 28 January,
2008,
<http://news.bbc.co.uk/2/hi/asia-pacific/7171409.stm>
at 6 October
2008. This article describes in detail events during January 2008 between the
Japanese whaling fleet and the anti-whaling
activist groups, Greenpeace and Sea
Shepherd.
[119] Peter Heller,
‘Japan’s Whaling Shame,’ Los Angeles Times, 3 December
2007, A17
<http://articles.latimes.com/writers/peter-heller>
at 6 October
2009. See also ‘Anger over Whale Pet Food Claims’, BBC News,
16 February 2006,
<http://news.bbc.co.uk/2/hi/science/
nature/4700418.stm> at 6 October
2009.
[120] See List of
Special Permit Catches Since 1985, above n 111 that lists the numbers of
whales killed by Japan each year under scientific research
permits.
[121] See
International Whaling Commission, Scientific Permit Whaling (North
Pacific (2) - JARPN II)
<http://www.iwcoffice.org/conservation/permits.htm>
at 6 October 2009,
which discusses previous rejections of the Japanese scientific whale research
programmes.
[122] Ibid. See
also IWC resolutions 1987-1, 1994-10, 1995-8, 1996-7, 1997-5, 1998-4, 1999-3,
2000-4, 2001-7, 2003-2 and 2005-1
<http://www.iwcoffice.org/>
at 6
October 2009.
[123]
Resolution on JARPA, IWC Res. 2007-1
<http://www.iwcoffice.org/meetings/resolutions/
Resolution2007-1.pdf>
at 6 October 2009. This pronouncement expressed the IWC’s unease about the
program and its scepticism
about its supposed scientific research
purposes. It particularly condemned its extension
to include fin whales and humpback whales and the doubling of the take for minke
whales. The
resolution concluded with a call for Japan to indefinitely halt
implementation of the lethal components of JARPA II and ‘to
address the 31
recommendations listed in Appendix 4 of Annex O of the Scientific Committee
report relating to the December 2006 review
of the JARPA I programme to the
satisfaction of the Scientific Committee.’ Ibid. New Zealand proposed the
resolution and numerous
other countries sponsored it, including Australia, Great
Britain, and the United States. IWC, 59th Annual Meeting of
the IWC, Anchorage, U.S., 18-31 May 2007, Agenda Item: Resolution on
JARPA, Doc. IWC/59/27 (29 May 2007) (prepared by the Government of New
Zealand)
<http://www.iwcoffice.org/_documents/commission/IWC59docs/59-27.pdf>
at 7
October 2009. The resolution received 40 votes in favour, 2 against,
with 1 abstaining. Japan and 26 other states refused to participate in the
process on grounds they believed the resolution was contrary to their efforts to
‘normalize’ whaling within the IWC.
See
Conference on Normalization of the International Whaling Commission, Tokyo,
Japan, 13-15 February 2007, Chair's Summary, Doc. IWC-M08-INFO2, 1
<http://www.iwcoffice.org/_documents/
commission/future/IWC-M08-INFO2.pdf>
at 7 October 2009. On the concept of ‘normalization,’ see Michael
Bowman, ‘“Normalizing”
the International Convention for the
Regulation of Whaling’ (2007 – 2008) 29 Michigan Journal of
International Law 293; Mike Diff, ‘Normalization of the International
Whaling Commission,’ (2008) 32 Marine Policy, 333.
[124] Whale Protection Act
1980 (Australia), section
9.
[125] The AFZ was demarcated
as those waters adjacent to Australia and its external territories out to 200
nautical miles, but excluding
‘excepted waters’ or internal or
coastal waters of a state. Fisheries Management Act 1991 (Australia), section
4(1) and Fisheries Amendment Act 1978 (Australia), section
3.
[126] Whale Protection Act
1980 (Australia), section
6(2).
[127] Ibid section
6(3).
[128] It is also a fair
presumption that jurisdiction over non-Australians would also have to be in
accord with rules established by the
Antarctic Treaty
System.
[129] 1982
UNCLOS, Part V (articles 55-
75).
[130] Proclamation by the
Governor-General under s 10B of the Seas and Submerged Lands Act
1973
(Cth) on 29 July 1994, to include waters within 200 nautical miles from the
baselines established under international law of the
external Territories,
Commonwealth Gazette No. S 290, Friday, 29 July 1994. The proclamation
was declared to commence on 1 August
1994.
[131] Maritime
Legislation Amendment Act 1994 (Australia), schedule 1.
[132]
Ibid.
[133] Environment
Protection and Biodiversity Conservation Act 1999 (Australia) [Hereinafter EPBC
Act]. See Chris McGrath, ‘Flying Foxes, Dams and Whales: Using Federal
Environmental Laws in
the Public Interest,’ (2008) 25
Environmental and Planning Law Journal,
324.
[134] EPBC Act, section
3(2)(e)(ii).
[135] Ibid section
225(1).
[136] Ibid sections
229-230. An offense is punishable by up to two years imprisonment or a fine not
to exceed 1000 penalty units [i.e.
AU$110,000], or both. Ibid section
229(2).
[137] Ibid section
5(4).
[138] Humane Society
International Inc. v. Kyodo Senpaku Kaisha Ltd. (2008) 165 FCR 510, 525
(Australia). The case history is protracted. See Humane Society International
Inc v Kyodo Senpaku Kaisha Ltd. [2004] FCA 1510 (initial application to
serve originating process in Japan and invitation to Attorney-General (AG) to
intervene); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd.
[2005] FCA 664 (27 May 2005) (dismissal of application following AG
intervention); Humane Society International Inc v Kyodo Senpaku Kaisha
Ltd. (2006) 154 FCR 425 (appeal order setting aside the dismissal and
granting leave to serve process); Humane Society International Inc v Kyodo
Senpaku Kaisha Ltd. [2007] FCA 124 (16 February 2007) (order allowing
substituted service of process)(unreported); Humane Society International Inc
v Kyodo Senpaku Kaisha Ltd. [2008] FCA 3 (15 January 2008) (final judgment
issuing declaration and injunction); Humane Society International Inc v Kyodo
Senpaku Kaisha Ltd. [2008] FCA 36 (18 January 2008) (order granting leave
for substituted service of the final judgment)(unreported). See Donald K Anton,
False Sanctuary: The Australian Antarctic Whale Sanctuary and
Long-Term Stability in Antarctica, (Cornell Law School Berger International
Speaker Papers, 2008, 6, n 22
<http://scholarship.law.cornell.edu/
cgi/viewcontent.cgi?article=1007&context=biss_papers>
at 8 October 2009.
[139]
Humane Society International Inc. v. Kyodo Senpaku Kaisha Ltd. (2008) 165
FCR 510, 525.
[140] HSI argued
that Antarctica’s offshore waters comprised part of Australia’s EEZ;
hence, any Japanese whaling within that
area came under Australian authority.
Ibid.
The Australian court agreed, as it concluded that Australia’s EEZ
‘extends to the waters adjacent to the baseline of
Australia's external
territories, including, importantly for this matter, the Australian Antarctic
Territory.’ Ibid,
516.
[141] Ibid.
[142]
Ibid.
[143] Ibid 525-26.
[144] Ibid.
[145] For a fuller discussion
of the accounting of the Humane Society case, see Donald K Anton, ‘20-Ton
Canaries: The Great Whales
of the North Atlantic Symposium: Symposium article:
Antarctic Whaling: Australia’s Attempt to Protect Whales in the Southern
Ocean,’ (2009) 36 Boston College Environmental Affairs Law Review,
319; Ruth Davis, ‘Enforcing Australian Law in Antarctica: The HIS
Litigation,’ (2007) 8 Melbourne Journal of International Law, 143;
Chris McGrath, ‘The Japanese Whaling Case,’ (2005) 22
Environmental and Planning Law Journal 250; Chris McGrath,
‘Japanese Whaling Case Appeal Succeeds’ (2006) 23
Environmental and Planning Law Journal 333; Joanna Mossop, ‘When
is a Whale Sanctuary Not a Whale Sanctuary? Japanese Whaling in Australian
Antarctic Maritime Zones,’
(2005) 36 Victoria University of Wellington
Law Review, 757.
[146] See
Justin McCurry, ‘Activists Claim Rough Tactics in Battle with Japanese
Whalers, The Guardian, 16 January 2008
<http://www.guardian.co.uk/environment/2008/jan/16/whaling.
conservation>
at 9 October 2009. Tomohiko Taniguchi, a foreign ministry spokesman, asserted
that, ‘[i]t is impossible for
the Japanese government to accept the
Australian court's ruling. As far as we are concerned, Japan's whaling
activities are taking
place in international waters and under a legal framework
set out by the International Whaling Commission’.
Ibid.
[147] The only
governments that formally recognize Australia’s claim of sovereignty to
the continent are four other claimants, the
United Kingdom, New Zealand, Norway
and France.
[148] Antarctic
Treaty, art VI.
[149]
Christopher C Joyner, Antarctica and the Law of the Sea, (1992), 75.
[150] For an assessment of
confrontations between the Sea Shepherd Society and Japanese whaling fleet, see
Raffi Khatchadourian, ‘Neptune's
Navy,’ The New Yorker, 5
November 2007, 9,
<http://www.newyorker.com/reporting/2007/11/05/071105fa_fact_khatchadourian>
at 9 October 2009. For the account of two Sea Shepherd protesters taken into
custody aboard a Japanese whaling vessel in the
Antarctic, see ‘Japanese
Detain Whaling Activists’, BBC News, 15 January 2008
<http://news.bbc.co.uk/2/hi/asia-pacific/7189580.stm>
at 9 October 2009.
[151] Sea Shepherd
Conservation Society, Sea Shepherd FAQ: Commentary by Captain Paul Watson, 19
January 2008, online:
<http://www.seashepherd.org/news-and-media/editorial-080119-1.html>
at 9
October 2009, and Tom Zeller Jr., ‘High Anti-Whaling Drama on High
Antarctic Seas,’ New York Times News Blog, 7 February 2007
<http://thelede.blogs.nytimes.
com/2007/02/09/high-anti-whaling-drama-on-high-antarctic-seas/>
at 9 October 2009. For a recent thoughtful assessment
of the international legal
implications of these environmental activists’ actions, see Joseph Elliott
Roeschke, ‘Eco-Terrorism
and Piracy on the High Seas: Japanese Whaling and
the Rights of Private Groups to Enforce International Conservation Law in
Neutral
Waters’. (2009) 20 Villanova Environmental Law Journal
99.
[152] Xavier La Canna,
‘Japanese Whalers “Fear Aussie Arrest”’ The Age,
12 Jan. 2009
<http://news.theage.com.au/national/japanese-whalers-fear-aussie-arrest-20090112-7evz.html>
at 4 October 2009.
[153] Pete
Thomas, ‘Japan’s New Government Stands by Whaling, Not Eager for
Bout with Sea Shepherd’, Los Angeles Times, 23 September 2009
<http://latimesblogs.latimes.com/outposts/
2009/09/whale-war-.html> at
5 October 2009. Japan formally asked Australia to keep anti-whaling activists
and their ship, the Steve Irvin, from refueling at Australian ports. The
Japanese Whaling Association branded Sea Shepherd Society a terrorist group
after 26 December
2008, when the Steve Irvin rammed the Kaiko Maru,
a Japanese whaling ship. Meraiah Foley and Mark McDonald,
‘Japan Seeks Australia’s Help to Thwart Whaling Opponents,’
New York Times, 7 January 2009
<http://www.nytimes.com/2009/01/07/world/asia
/07whale.html> at 5
October 2009.
[154] 1959
Antarctic Treaty, art
VI.
[155] 1991 Environmental
Protocol, art 3. See the insightful analysis on Japan’s scientific
whaling program by the Independent Panel of Legal and Policy Experts
(The
Canberra Panel): Japan’s ‘Scientific’ Whaling Program and
the Antarctic Treaty System, Independent Panel of Legal and Policy Experts:
Report of the Canberra Panel, 12 January 2009
<http://www.ifaw.org/assets/
Media_Center/Press_Releases/asset_upload_file187_51771.pdf>
at 5 October 2009.
[156]
1991 Environmental Protocol, art 3(2)(b)
(iv)-(vi).
[157] 1959
Antarctic Treaty,
preamble.
[158] Article VI of
CCAMLR provides that, ‘Nothing in this Convention shall derogate from the
rights and obligations of Contracting
Parties under the International Convention
for the Regulation of Whaling and the Convention for the Conservation of
Antarctic Seals.’
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