Antarctica and the international community
Conscious of the particular significance of Antarctica to the international community, including for international peace and security, the global and regional environment, its effects on global and regional climate conditions, and scientific research
This recurring consideratum in the United Nations General Assembly (hereinafter UNGA) resolutions on the Question of Antarctica outlines the international community’s interest in Antarctica (see, inter alia, UNGA Resolutions 60/47, 51/51 and 54/45). From its inception, the Antarctic Treaty System (hereinafter ATS) has recognised this interest, as demonstrated by the references to “the interest” and “the progress of all mankind” in the preambles of the Antarctic Treaty and other ATS instruments. Indeed, the idea that the entire international community is affected by what happens in the southernmost region of the world, in particular in the light of contemporary climate change, pervades most Antarctic thinking (Berkman, Reference Berkman2010; Wolfrum, Reference Wolfrum, Dodds, Hemmings and Peder2017).
Consequently, consideration of the international community’s interest has become one of the cornerstones of the ATS’s legitimacy; it is widely acknowledged that legitimate Antarctic governance should benefit all mankind (Chopra, Reference Chopra1991). This idea was in the minds of most negotiators present at the 1959 Washington Conference and continues to inform Antarctic deliberations. McIntosh, the New Zealand delegate to the Washington Conference, for example, reminded his colleagues to “keep in mind the responsibilities we owe the rest of the world” (Saul & Stephens, Reference Saul and Stephens2015, p. 15). Further evidence is offered by the Washington Ministerial Declaration on the Fiftieth Anniversary of the Antarctic Treaty in which the Consultative Parties affirmed their commitment “to continue and extend for the benefit of all humankind their cooperation established in the Treaty and in the Treaty system over the last fifty years.” (my emphasis)
Given the established interest of the international community, one would expect UN involvement in how Antarctica is governed (Pinto, Reference Pinto1978). After all, the UN is widely recognised as the guardian of the international community (Delbrück, Reference Delbrück1997). Indeed, several states, including the US, New Zealand, India and Malaysia, have proposed UN-based regimes to govern the Antarctic both before and since the adoption of the Antarctic Treaty in 1959. However, the reception of such proposals by other ATS member to the ATS has ranged from lukewarm to ice-cold (generally, on the UN-ATS relationship, see Beck, Reference Beck, Dodds, Hemmings and Peder2017). Instead, most ATS insiders argue that the UN’s involvement in Antarctic governance should be limited to a minimum.
Different visions on the UN’s role in Antarctic governance clashed strongly in the age of the new international economic order, as the Question of Antarctica was put on the UNGA’s agenda by Antigua and Barbuda and Malaysia, representing the G-77 (on Malaysia’s Antarctic policy, see Jayaseelan, Reference Jayaseelan2019). Their criticism of the non-transparent and exclusive nature of the existing regime was countered by arguments referring to its effectiveness in peacefully and sustainably governing the continent. Australia, representing the Consultative Parties, argued that “[t]he [Antarctic] Treaty serves the international community well” and that any attempt to replace or revise it could have “very serious consequences for international peace and co-operation” (UN Docs. A/38/439/Rev. 1). After two decades, the debate seemed to settle into a consensus: the ATS’s authority to govern the continent was recognised by the international community on the condition that it acts in the interest of “all mankind.” The UN was awarded only a very minor role. This article argues that the “Antarctic consensus” constitutes an example of the stewardship model. What this stewardship model implies and how it applies to the Antarctic Treaty Consultative Meeting (ATCM) as the main body of the ATS are discussed below.
The stewardship model: authority and legitimacy
The stewardship model refers to a governance system whereby an institution, a state or a collection of states – the steward(s) – governs an area or a thing in name of the international community. It should be noted that the concept, as it is conceptualised in this article, is different from “environmental stewardship,” which focuses rather on the attitude and responsibilities of humankind towards nature (Barritt, Reference Barritt2014; Bastmeijer, Reference Bastmeijer2011). In casu, the ATCM acts as steward for the international community as a whole in the governance of the Antarctic continent.
Methodologically, this model serves both an analytical and a normative purpose. Analytically, the model provides a means to conceptualise the current relationship between the ATCM and the broader international community. The current relationship is strongly characterised by the debate in the UNGA and the Antarctic consensus which emerged therefrom (Aumond, Reference Aumond2009). The ACTM has undeniably managed to claim authority in Antarctic governance. Indeed, it has governed uncontested for at least 15 years now. Yet, this claim to authority depends on the legitimacy of its actions. Thus, the relationship between the ATCM and the international community can be characterised as one of authority conditional upon legitimacy.
This model equally comprises a normative component focused on issues of legitimacy. Central to the legitimacy question is how the international community is given a voice in Antarctic governance. How can and should the stewards take into account the broader international community’s interests and perspectives? This question gains particular relevance, given the exclusion of the UN from the Antarctic governance. The stewardship model offers certain procedural standards against which to measure the practices of the existing regime.
The stewardship model draws inspiration from the institutional model set up by the 1995 UN Fish Stocks Agreement for regional fisheries management organisations (RFMOs). Although this agreement has its own share of problems, in particular concerning implementation, as evidenced by the reports of the Review Conference which met in 2006, 2010 and 2016, it provides a functioning legal example of – and basis for – the stewardship model. On the one hand, this Agreement grants these regional organisations authority to regulate fisheries in certain designated maritime areas: if a state engages in fisheries in such a maritime area, it is obligated to join the competent RFMO or, at least, to abide by its conservation measures (article 8.3–8.4). Vice versa, an RFMO has to adopt conservation measures through a legitimate decision-making process. Most importantly, an RFMO cannot maintain conditions for participation by interested states, which are unduly restrictive or discriminatory in nature (article 8.3–8.4). Other obligations also exist, among which the obligations that RFMOs must apply “any generally recommended minimum standards for the responsible conduct of fishing operations” (article 10(c)), base their decisions on the best scientific evidence available (articles 10(d), (f), (g) and 14) and be sufficiently transparent by allowing other inter-governmental (IGOs) and non-governmental organisations (NGOs) to attend meetings (article 12).
The Fish Stocks Agreement does not only grant authority to and set out legitimacy criteria for RFMOs, it also connects both. In other words, an RFMO needs to be legitimate to be able to claim authority. This is quite clear in one instance: the prohibition to establish unduly restrictive conditions for participation of states interested in fishing activities is directly linked to that state’s duty to abide by the RFMO’s conservation measures. If any state “having a real interest” is denied the right to participate while acting in good faith, it could engage in fisheries outside of the framework of the RFMO (Molenaar, Reference Molenaar2000, p. 493). When it comes to participation by the interested states, the authority of an RFMO depends on whether its conditions for participation are legitimate. Whether the authority of RFMOs can legally be questioned if it does not meet the other legitimacy criteria remains unclear, however, and is not a matter that can be discussed in detail here.
A similar stewardship model applies to the ATS: the ATCM acts as a steward for the international community in the governance of the Antarctic continent. The application of the stewardship model equally implies that the ATCM has authority to regulate only insofar as it acts and takes decisions in a legitimate fashion. In other words, the stewardship model breaks down into four components:
(1) the international community has an interest in the governance of the Antarctic,
(2) the ATCM has the authority to regulate these issues of community interest,
(3) the ATCM is obligated to act legitimately and
(4) the ATCM’s authority is conditional upon it acting legitimately.
All four of these elements require considerable further elaboration. Unfortunately, this brief article does not allow for a complete discussion of these different aspects, but they are developed further in my PhD thesis. Therefore, rather than developing these four aspects here, the rest of this article sets out the added value and the major potential pitfall of viewing the relationship between the ATCM and the international community through the lens of the stewardship model.
Between pragmatism and ideology
First, as has been mentioned, the stewardship model works well as an analytical model. It closely mirrors the Antarctic consensus that emerged from two decades of deliberations in the UNGA. The last UNGA resolution on the Question of Antarctica (UNGA Res 64/47 of 2005), for example, refers to the three first elements mentioned: it (1) reaffirms that “the management and use of Antarctica should be conducted […] for the benefit of mankind as a whole,” (2) recognises the Antarctic Treaty and its Environmental Protocol as relevant documents which are “in furtherance of the purposes and principles of the [UN] Charter” and (3) welcomes invitations to the UN Environmental Programme to attend ATCMs and the practice whereby regular updates on ATCM functioning are provided to the UN Secretary-General and interested states. Furthermore, the stewardship model offers a cohesive framework to analyse important issues of authority, legitimacy and the connection between both. Finally, applying the model allows for analysis of the ATS through comparison with similar regimes, such as the regime of RFMOs or, to a certain extent, the regime of the Arctic Council, which could fall under the stewardship model.
Second, the stewardship model provides a basis for the
erga omnes effect of the instruments of the ATS and the authority of the ATCM. This is particularly relevant as more private companies become engaged in Antarctic activities like tourism (Vidas, Reference Vidas1993). Against this background, one of the main challenges of the ATS will be to ensure that its rules are globally applicable. As the stewardship model explicitly recognises the authority of the ATCM to regulate for the Antarctic, the
erga omnes effect of its rules is ensured.
Third, the model can serve a normative function, while maintaining a certain measure of pragmatism. Without questioning the entire regime and claiming for replacement by a UN-based regime, it provides certain normative standards against which the legitimacy of the ATCM can be measured. These normative standards could include transparency, participation rights for interested states, IGOs and NGOs, taking into account the UN priorities in the development of Antarctic policy, etc. On the exact list of standards, however, more research is required and this list cannot be considered exhaustive nor definitive (for some ideas, see French, Reference French, Hemmings, Rothwell and Scott2012; Hemmings, Reference Hemmings, Powell and Dodds2014).
Perhaps the model’s greatest strength is that it maintains a balance between pragmatism and ideology, between recognition and – to a certain extent – legitimation of the existing Antarctic regime and the need to provide normative guidelines to enhance its legitimacy. Herein also lies the major risk of the model. It risks being caught between apology and utopia, to borrow Koskenniemi’s famous words (Koskenniemi, Reference Koskenniemi2006). In being too apologetic, it might justify a regime that is illegitimate and unjustly recognise its authority. One could argue that only a universal UN-based regime could legitimately govern Antarctica. In being too utopian, it might set standards of legitimacy that are politically unattainable and therefore might lack relevance. One could argue that claims for universal participation would never be accepted under the current geopolitical constellation for fear they might hinder the effectiveness of the ATCM. Such risks are inherent to a model that is analytical and normative at once. The challenge in elaborating the stewardship model is thus the walk a fine line between “over-justification” and “under-legitimation.” However, if it succeeds in walking this tightrope, it might emerge as an extremely useful model to frame Antarctic governance.
You have
Access
Antarctica and the international community
Conscious of the particular significance of Antarctica to the international community, including for international peace and security, the global and regional environment, its effects on global and regional climate conditions, and scientific research
This recurring consideratum in the United Nations General Assembly (hereinafter UNGA) resolutions on the Question of Antarctica outlines the international community’s interest in Antarctica (see, inter alia, UNGA Resolutions 60/47, 51/51 and 54/45). From its inception, the Antarctic Treaty System (hereinafter ATS) has recognised this interest, as demonstrated by the references to “the interest” and “the progress of all mankind” in the preambles of the Antarctic Treaty and other ATS instruments. Indeed, the idea that the entire international community is affected by what happens in the southernmost region of the world, in particular in the light of contemporary climate change, pervades most Antarctic thinking (Berkman, Reference Berkman2010; Wolfrum, Reference Wolfrum, Dodds, Hemmings and Peder2017).
Consequently, consideration of the international community’s interest has become one of the cornerstones of the ATS’s legitimacy; it is widely acknowledged that legitimate Antarctic governance should benefit all mankind (Chopra, Reference Chopra1991). This idea was in the minds of most negotiators present at the 1959 Washington Conference and continues to inform Antarctic deliberations. McIntosh, the New Zealand delegate to the Washington Conference, for example, reminded his colleagues to “keep in mind the responsibilities we owe the rest of the world” (Saul & Stephens, Reference Saul and Stephens2015, p. 15). Further evidence is offered by the Washington Ministerial Declaration on the Fiftieth Anniversary of the Antarctic Treaty in which the Consultative Parties affirmed their commitment “to continue and extend for the benefit of all humankind their cooperation established in the Treaty and in the Treaty system over the last fifty years.” (my emphasis)
Given the established interest of the international community, one would expect UN involvement in how Antarctica is governed (Pinto, Reference Pinto1978). After all, the UN is widely recognised as the guardian of the international community (Delbrück, Reference Delbrück1997). Indeed, several states, including the US, New Zealand, India and Malaysia, have proposed UN-based regimes to govern the Antarctic both before and since the adoption of the Antarctic Treaty in 1959. However, the reception of such proposals by other ATS member to the ATS has ranged from lukewarm to ice-cold (generally, on the UN-ATS relationship, see Beck, Reference Beck, Dodds, Hemmings and Peder2017). Instead, most ATS insiders argue that the UN’s involvement in Antarctic governance should be limited to a minimum.
Different visions on the UN’s role in Antarctic governance clashed strongly in the age of the new international economic order, as the Question of Antarctica was put on the UNGA’s agenda by Antigua and Barbuda and Malaysia, representing the G-77 (on Malaysia’s Antarctic policy, see Jayaseelan, Reference Jayaseelan2019). Their criticism of the non-transparent and exclusive nature of the existing regime was countered by arguments referring to its effectiveness in peacefully and sustainably governing the continent. Australia, representing the Consultative Parties, argued that “[t]he [Antarctic] Treaty serves the international community well” and that any attempt to replace or revise it could have “very serious consequences for international peace and co-operation” (UN Docs. A/38/439/Rev. 1). After two decades, the debate seemed to settle into a consensus: the ATS’s authority to govern the continent was recognised by the international community on the condition that it acts in the interest of “all mankind.” The UN was awarded only a very minor role. This article argues that the “Antarctic consensus” constitutes an example of the stewardship model. What this stewardship model implies and how it applies to the Antarctic Treaty Consultative Meeting (ATCM) as the main body of the ATS are discussed below.
The stewardship model: authority and legitimacy
The stewardship model refers to a governance system whereby an institution, a state or a collection of states – the steward(s) – governs an area or a thing in name of the international community. It should be noted that the concept, as it is conceptualised in this article, is different from “environmental stewardship,” which focuses rather on the attitude and responsibilities of humankind towards nature (Barritt, Reference Barritt2014; Bastmeijer, Reference Bastmeijer2011). In casu, the ATCM acts as steward for the international community as a whole in the governance of the Antarctic continent.
Methodologically, this model serves both an analytical and a normative purpose. Analytically, the model provides a means to conceptualise the current relationship between the ATCM and the broader international community. The current relationship is strongly characterised by the debate in the UNGA and the Antarctic consensus which emerged therefrom (Aumond, Reference Aumond2009). The ACTM has undeniably managed to claim authority in Antarctic governance. Indeed, it has governed uncontested for at least 15 years now. Yet, this claim to authority depends on the legitimacy of its actions. Thus, the relationship between the ATCM and the international community can be characterised as one of authority conditional upon legitimacy.
This model equally comprises a normative component focused on issues of legitimacy. Central to the legitimacy question is how the international community is given a voice in Antarctic governance. How can and should the stewards take into account the broader international community’s interests and perspectives? This question gains particular relevance, given the exclusion of the UN from the Antarctic governance. The stewardship model offers certain procedural standards against which to measure the practices of the existing regime.
The stewardship model draws inspiration from the institutional model set up by the 1995 UN Fish Stocks Agreement for regional fisheries management organisations (RFMOs). Although this agreement has its own share of problems, in particular concerning implementation, as evidenced by the reports of the Review Conference which met in 2006, 2010 and 2016, it provides a functioning legal example of – and basis for – the stewardship model. On the one hand, this Agreement grants these regional organisations authority to regulate fisheries in certain designated maritime areas: if a state engages in fisheries in such a maritime area, it is obligated to join the competent RFMO or, at least, to abide by its conservation measures (article 8.3–8.4). Vice versa, an RFMO has to adopt conservation measures through a legitimate decision-making process. Most importantly, an RFMO cannot maintain conditions for participation by interested states, which are unduly restrictive or discriminatory in nature (article 8.3–8.4). Other obligations also exist, among which the obligations that RFMOs must apply “any generally recommended minimum standards for the responsible conduct of fishing operations” (article 10(c)), base their decisions on the best scientific evidence available (articles 10(d), (f), (g) and 14) and be sufficiently transparent by allowing other inter-governmental (IGOs) and non-governmental organisations (NGOs) to attend meetings (article 12).
The Fish Stocks Agreement does not only grant authority to and set out legitimacy criteria for RFMOs, it also connects both. In other words, an RFMO needs to be legitimate to be able to claim authority. This is quite clear in one instance: the prohibition to establish unduly restrictive conditions for participation of states interested in fishing activities is directly linked to that state’s duty to abide by the RFMO’s conservation measures. If any state “having a real interest” is denied the right to participate while acting in good faith, it could engage in fisheries outside of the framework of the RFMO (Molenaar, Reference Molenaar2000, p. 493). When it comes to participation by the interested states, the authority of an RFMO depends on whether its conditions for participation are legitimate. Whether the authority of RFMOs can legally be questioned if it does not meet the other legitimacy criteria remains unclear, however, and is not a matter that can be discussed in detail here.
A similar stewardship model applies to the ATS: the ATCM acts as a steward for the international community in the governance of the Antarctic continent. The application of the stewardship model equally implies that the ATCM has authority to regulate only insofar as it acts and takes decisions in a legitimate fashion. In other words, the stewardship model breaks down into four components:
(1) the international community has an interest in the governance of the Antarctic,
(2) the ATCM has the authority to regulate these issues of community interest,
(3) the ATCM is obligated to act legitimately and
(4) the ATCM’s authority is conditional upon it acting legitimately.
All four of these elements require considerable further elaboration. Unfortunately, this brief article does not allow for a complete discussion of these different aspects, but they are developed further in my PhD thesis. Therefore, rather than developing these four aspects here, the rest of this article sets out the added value and the major potential pitfall of viewing the relationship between the ATCM and the international community through the lens of the stewardship model.
Between pragmatism and ideology
First, as has been mentioned, the stewardship model works well as an analytical model. It closely mirrors the Antarctic consensus that emerged from two decades of deliberations in the UNGA. The last UNGA resolution on the Question of Antarctica (UNGA Res 64/47 of 2005), for example, refers to the three first elements mentioned: it (1) reaffirms that “the management and use of Antarctica should be conducted […] for the benefit of mankind as a whole,” (2) recognises the Antarctic Treaty and its Environmental Protocol as relevant documents which are “in furtherance of the purposes and principles of the [UN] Charter” and (3) welcomes invitations to the UN Environmental Programme to attend ATCMs and the practice whereby regular updates on ATCM functioning are provided to the UN Secretary-General and interested states. Furthermore, the stewardship model offers a cohesive framework to analyse important issues of authority, legitimacy and the connection between both. Finally, applying the model allows for analysis of the ATS through comparison with similar regimes, such as the regime of RFMOs or, to a certain extent, the regime of the Arctic Council, which could fall under the stewardship model.
Second, the stewardship model provides a basis for the erga omnes effect of the instruments of the ATS and the authority of the ATCM. This is particularly relevant as more private companies become engaged in Antarctic activities like tourism (Vidas, Reference Vidas1993). Against this background, one of the main challenges of the ATS will be to ensure that its rules are globally applicable. As the stewardship model explicitly recognises the authority of the ATCM to regulate for the Antarctic, the erga omnes effect of its rules is ensured.
Third, the model can serve a normative function, while maintaining a certain measure of pragmatism. Without questioning the entire regime and claiming for replacement by a UN-based regime, it provides certain normative standards against which the legitimacy of the ATCM can be measured. These normative standards could include transparency, participation rights for interested states, IGOs and NGOs, taking into account the UN priorities in the development of Antarctic policy, etc. On the exact list of standards, however, more research is required and this list cannot be considered exhaustive nor definitive (for some ideas, see French, Reference French, Hemmings, Rothwell and Scott2012; Hemmings, Reference Hemmings, Powell and Dodds2014).
Perhaps the model’s greatest strength is that it maintains a balance between pragmatism and ideology, between recognition and – to a certain extent – legitimation of the existing Antarctic regime and the need to provide normative guidelines to enhance its legitimacy. Herein also lies the major risk of the model. It risks being caught between apology and utopia, to borrow Koskenniemi’s famous words (Koskenniemi, Reference Koskenniemi2006). In being too apologetic, it might justify a regime that is illegitimate and unjustly recognise its authority. One could argue that only a universal UN-based regime could legitimately govern Antarctica. In being too utopian, it might set standards of legitimacy that are politically unattainable and therefore might lack relevance. One could argue that claims for universal participation would never be accepted under the current geopolitical constellation for fear they might hinder the effectiveness of the ATCM. Such risks are inherent to a model that is analytical and normative at once. The challenge in elaborating the stewardship model is thus the walk a fine line between “over-justification” and “under-legitimation.” However, if it succeeds in walking this tightrope, it might emerge as an extremely useful model to frame Antarctic governance.