Since the Antarctic Treaty was negotiated in 1959, it has undergone major substantive legal transformations as it grew into a multifaceted regime known as the Antarctic Treaty system. Many of those transformations stemmed from actions by the principal decision makers, the Antarctic Treaty Consultative Parties (ATCPs), as they adopted new strategies and values alongside binding legal agreements for managing their activities in circumpolar southern waters. This essay examines the evolution of the modern law of the sea and seeks to explain how it embellished (has it at times challenged?) the character, significance and purposes of the Antarctic Treaty.
It was not until the mid-twentieth century that the law of the sea advanced from a set of customary-based norms to hard, black letter international law. The timing was apt given on the one hand, the growing capacity of humankind to explore and exploit the seas and oceans including the seabed and on the other, the onset of the cold war that transformed the world's oceans into strategic arenas. In 1958 a special international conference convened in Geneva to negotiate and codify a modern law for the oceans. These discussions produced four separate conventions for regulating the territorial sea and contiguous zone, the high seas, the fishing and conservation of living resources of the high seas, and the continental shelf. By 1966 all had entered into force.
Nonetheless, these agreements soon became overtaken by further developments in technology, the global economy and world political conditions. The upshot was a perceived need for a new body of law to govern the world's oceans. Consequently, from 1973–1982 another UN conference on the law of the sea convened in thirteen negotiating sessions to revise and update the 1958 Geneva conventions. The culmination of those efforts came in the 1982 UN Convention on the Law of the Sea (UNCLOS). This multilateral agreement, which entered into force in November 1994, contains the modernised international law for ocean space that covers 71 percent of the earth's surface. What makes these developments inextricably linked to Antarctica is that the frozen continent is surrounded by the Southern Ocean, the legal status of which falls under this prevailing law of the sea. This point is sharpened by the realisation that, while the Antarctic Treaty says relatively little about the continent's circumpolar seas (bar Article 6), the appendages negotiated since then draw much from the concepts, rules, norms and principles that comprise the modern law of ocean space. It also bears noting that in 2009, there are 158 parties to the 1982 UNCLOS, including all but five of the 47 parties to the Antarctic Treaty, Ecuador, Peru, Turkey, Venezuela and, most notably, the United States. Notwithstanding that caveat, all Antarctic Treaty states continue to apply the cardinal rules, norms and principles of contemporary ocean law in their relations with one another as well as with foreign vessels in the south polar waters. By doing so, international ocean law is strengthened and the status of Antarctica is more firmly incorporated into global norms and practices.
The 1982 UNCLOS contains the core international law regulating activities in ocean space, including that in the Southern Ocean. This agreement updates, clarifies and codifies into contemporary ocean law the key rules, norms and principles, which are clustered into six major issue areas:
1 territorial jurisdictional limits offshore a state;
2 fishing and resource conservation on the high seas;
3 marine environmental protection;
4 marine scientific research;
5 navigation through straits;
6 deep seabed mining.
The essential ingredient for the application of international law to these issues is the coastal state and the rights and duties obtained by its government from becoming a party to the 1982 UNCLOS.
Regarding offshore territorial limits, the concept of the coastal state and the definition of coastal baselines are factors critical 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 recognised borders alongside an ocean, that is occupied by a population under an organised government and which, in its foreign affairs, possesses the qualities of sovereignty and independence. It is well known that seven of the original parties to Antarctic Treaty, Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom, assert sovereign claims to portions of the continent. Therein lies the rub: do any of those claimed sectors qualify as a coastal state, or a territory recognised as sufficiently sovereign to generate legal rules for regulating offshore activities? During the 50 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. In 1959, the law of the sea did not feature on the diplomatic radar screen and in that sense the Antarctic Treaty was an agreement designed to manage the continent itself. This irresolute situation persists today. Why is this still relevant after 50 years? It is because in all seven cases, the claims asserted extend beyond the continent into ocean space; six of them extend out to 60° S, the legal jurisdictional ambit of the treaty, and Norway's claim extends seaward, but lacks a specifically defined ocean endpoint. Moreover, the status of the ocean space offshore the continental sectors has been proclaimed by the claimants as various UNCLOS zones, but go unrecognised as lawful by the rest of the international community.
The 1982 UNCLOS in its Parts II and V permits a coastal state to claim up to a 12 nautical mile (nm) territorial sea, a 24 nm contiguous zone and a 200 nm exclusive economic zone (EEZ). States may also claim rights to explore and exploit resources on and in the continental shelf out to 200 nm. If the shelf geologically extends out beyond that point, the coastal state may prepare a claim out to a distance of 350 nm, the lawfulness of which will be determined by a special UNCLOS Commission on the Limits of the Continental Shelf. In that event, the ocean space beyond the EEZ remains high seas. Critical to establishing these zones legally is defining a coastal baseline, which is normally determined by the ‘low water line along the coast’ of a state. However, as much of Antarctica is surrounded by ice throughout the year, it is not practical to determine a low water mark. 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.
Despite these geophysical irregularities, claimant states contend that their continental claims hold the legal status of coastal territories. Accordingly, they have asserted forms of all the UNCLOS jurisdictional zones offshore their Antarctic sectors. Australia, New Zealand, France, the United Kingdom, Argentina, and Chile have proclaimed territorial seas off their Antarctic territories. Norway reserves the right to do so. Contiguous zones have been proclaimed by Australia, New Zealand, France, Argentina, and Chile. EEZs have been proclaimed by Australia, Argentina, France, and Chile. Perhaps most significantly, claims to continental shelf areas beyond 200 nm have been submitted to the UNCLOS Commission by Australia, the United Kingdom, and Norway. New Zealand also made a submission and reserves the right to make such an extended continental shelf claim, while Chile declares its jurisdiction over the continental shelf in an area it designates as the ‘presential sea.’ Significantly, claimant states are not pushing application of their domestic laws establishing these zones on other governments involved in Antarctic affairs. Non-claimant states generally do not recognise the validity of any of these maritime claims, primarily because they believe that no true coastal states are present and no ‘new’ claims are permitted under the Antarctic Treaty. Most states regard circumpolar waters legally as high seas, free for navigation and use by mariners from any state regardless of whether they are either a signatory of the Antarctic Treaty or UNCLOS.
The 1982 UNCLOS strives in its Part VII to set out rules for fishing and conservation of marine resources. So, too, have the ATCPs worked to apply these standards in the southern circumpolar high seas. Prior to the treaty regime, the international community sought to protect whales in the southern seas by negotiating a management regime in the 1946 International Convention for the Regulation of Whaling. Even so, while this instrument remains in force and its commission takes policy relevant decisions, two of the original Antarctic Treaty parties, Japan and Norway, stand out for their nationals continuing actively to take whales from Antarctic waters. Of all the ATCPs, Australia stands out for its active opposition to Japanese whaling in Antarctic waters. It does so by publicizing the brutality of Japanese whaling, constantly monitoring their whalers, and arresting and judicially prosecuting them in Australian courts.
During the Antarctic Treaty's lifetime, two other salient conservation instruments have been adopted. To preclude Antarctic seal populations from being decimated by seal hunters, in 1972 the ATCPS negotiated the Convention on the Conservation of Antarctic Seals. The taking of any seals south of 60°S must be done through licensing arrangements. Similarly, when the ATCPs became concerned over increasing amounts of krill being taken from Antarctic waters, they moved in 1980 to negotiate another mandatory preservation instrument, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). This agreement strives to protect not only krill, but also all species of marine birds (including penguins), squid, and finfish in the region. Importantly, since the 1990s its administrative commission has shifted attention primarily to halting illegal, unreported and unregulated fishing in the Southern Ocean (mostly for Patagonian toothfish) by vessels flagged under non-Antarctic Treaty states. Where CCAMLR extends to include islands in the Southern Ocean, a bifocal approach to sovereignty is adopted. This allows for the synchronisation of interests between states whose continental claims are contested and those whose Southern Ocean possessions are not (for example Heard, McDonald, and Macquarie Islands owned by Australia and Kerguelen and Crozet Islands owned by France).
A third issue area codified in Part XII of the 1982 UNCLOS is marine environmental protection. In this regard, the ATCPs undertook impressive obligatory actions to protect the Antarctic marine environment from man made degradation. Between 1964 and 1990, the ATCPs adopted a number of agreed measures and recommendations that aimed to protect the Antarctic marine environment. The turning point came in 1991 in the form of the Protocol on Environmental Protection to the Antarctic Treaty. This accord, which entered into force in 1998, aims to harmonise protection of the Antarctic environment and its circumpolar marine ecosystem into a comprehensive and legally binding document. It designates Antarctica as a ‘natural reserve, devoted to peace and science’ and establishes environmental principles for the conduct of all human activities in the region. The essential foundation for these principles is the need to plan and conduct activities within the Antarctic Treaty area so that any adverse impacts on the Antarctic environment and dependent and associated ecosystems are ‘limited.’ The protocol also prohibits mining and drilling on and offshore in the Antarctic for at least 50 years after the instrument enters into force (which is in 2048). The six annexes appended to the protocol provide specific rules for implementing critical features of the protocol in the areas of environmental impact assessment, the conservation of Antarctic fauna and flora, waste disposal and waste management, the prevention of marine pollution (made consistent with rules in the International Convention for the Prevention of Pollution from Ships), the management of protected areas, and liability for environmental emergencies. Finally, it should be noted that negotiations were completed during the 1980s for a complicated Antarctic minerals treaty, which held salient law of the sea implications were any offshore hydrocarbon development to occur. That instrument, however, never came to legal consummation owing to objections from environmental groups and the withdrawal of Australia and France from formal participation in arrangement. Consequently, it remains shelved and not in force.
A fourth issue area in new ocean law is that of marine scientific research. In Part XIII of the 1982 UNCLOS, coastal state jurisdiction within its territorial sea remains absolute, and consent is required before any scientific activities are undertaken. Within the EEZ and in cases involving research on the continental shelf, the coastal state must give prior consent, albeit such consent for research for peaceful purposes is supposed to be granted ‘in normal circumstances’ and should not be ‘delayed or denied unreasonably’. With respect to the waters around Antarctica, the ATCPs regularly engage in several scientific activities since it plays a critical role in the global climate system owing to its unique physical, biogeochemical, and ecological features. To conduct these studies, no permission is ought by national scientists from a claimant state, and none is demanded. The Scientific Committee on Antarctic Research (SCAR), the scientific appendage of the Antarctic Treaty system, takes a leading role in organising studies and assessments involving krill and fishery stocks, climate change, marine biodiversity, managing a census of Antarctic marine life, and conducting an ocean mapping programme to gain better knowledge of the sea floor topography in the Southern Ocean. The CCAMLR sponsored scientific research in the 1981 BIOMASS/FIBEX programmes and the 2000 synoptic survey concerning krill biomass and their distribution, and continues to do so today.
The provisions in Part III of UNCLOS pertain to the fifth issue in the law of the sea, namely the passage of vessels through international straits. In Antarctic circumstances, however, they hold little relevance in contrast to the Arctic and contested zones such as the Northwest Passage. It is true that straits do exist in the Antarctic, for example the Bransfield, Gerlache, and Lemaire Straits. Nevertheless, the ambiguous situation over whether there are actual ‘coastal states’ on the continent renders arguable at best the existence of strait states and the necessity for applying the new regime of ‘transit passage’ contained in the convention. While the regime of transit passage preserves the international status of the straits and provides for the rights of unimpeded navigation and overflight, vessels in transit passage must still observe international regulations on navigational safety, civilian air-traffic control and prohibition of vessel source pollution. In any event, these rules for safe navigation are certainly pertinent for logistical resupply vessels as well as the increasing number of tourist ships navigating around the continent's peninsula region.
The final issue area in modern ocean law relates to the international regime for mineral resource development in the deep seabed area beyond national jurisdiction, which is contained in Part XI of the 1982 UNCLOS. This was arguably the most controversial aspect of UNCLOS and explains the reluctance of the United States to ratify its provisions. In the Antarctic these provisions would permit an International Seabed Authority to regulate seafloor development activities beyond the limits of continental shelf claims made by Australia, the United Kingdom, Norway and New Zealand, pending their approval by the UN Continental Shelf Commission. If that approval were not forthcoming, the area under the authority's jurisdiction would probably begin at the edge of the continent. Regardless of these legal niceties, oceanographic and geophysical realities suggest that deep seabed mining arrangements applied to offshore Antarctica are never likely to occur. The circumpolar waters are ice-covered much of the year, and throughout the spring and summer months, these seas are among the windiest, coldest and harshest on the planet. There is no evidence that the objects of this mineral regime, rock concretions called polymetallic nodules or manganese nodules, actually exist in commercially recoverable quantifies on Southern Ocean's seabed. In any event, conducting mining operation in such extreme conditions would be prohibitively expensive, never mind incredibly hazardous for operators at sea.
In conclusion, during the 50 year life of the Antarctic Treaty, the law of the sea emerged into a fully fledged legal regime for managing the world's oceans. At the same time, parties to the Antarctic treaty had to adjust to changing political, economic, legal, scientific, environmental and geophysical circumstances affecting Antarctica and its surrounding seas. Significantly, as the law of the sea progressively changed during this period, so too did certain parties to the Antarctic parties seek to apply new concepts and principles of that law to bolster (at times controversially) their interests on and around the continent. The 1982 UNCLOS furnished the fundamental rules, principles and norms for doing so, especially in setting up agreements for conservation and preservation of living marine resources and protection of the marine environment. With respect to offshore zones of territorial jurisdiction, the lawfulness of those efforts remains polemical between the groups of claimant (including three counter-claimants) and non-claimant governments involved in the Antarctic Treaty. Finally, the geophysical conditions in the Antarctic make it unlikely that the UNCLOS regimes for strait passage and deep seabed mining will actually be applied to in the waters south of 60°S. For the foreseeable future, the modern law of the sea will most profoundly impact Antarctic waters by furnishing the ways and means for more effectively conserving the region's living marine resources and protecting the integrity of the circumpolar marine ecosystem.
