Antarctic Treaty System: Strengths and Weaknesses

Antarctica is the fifth largest continent on earth and accounts for one-tenth of its total land surface. 98% of the surface of Antarctica is covered with polar icecaps that are 2,160 metres thick on average, which in turn contains about 90% of the earth’s fresh water in the form of ice. Antarctica is also a land rich in marine living resource, with its ice playing an important role in controlling the temperature of the oceans. Indeed, Antarctica is one of the few remaining unspoiled regions in the world. To protect and preserve the precious Antarctic environment, the Antarctic Treaty was adopted in 1959 and took effect in 1961 and presently has signatories.

(i) Discuss the importance of Article IV of the Antarctic Treaty System as regards the sovereignty of the parties and how this has arguably been an essential element of the success of the treaty.

Territorial disputes are central to the legal and political position of Antarctica. There are seven states that have claimed territorial sovereignty over areas of Antarctica.[1] There is also an area over which sovereignty is not claimed by any state. The states do not all recognize each other’s claims to the respective areas, and the claims of three of the states overlap to a large extent. Furthermore, no other states have expressly recognized the territorial sovereignty of any of the claimant states.

In the period preceding the conclusion of the Antarctic Treaty, conflicts ranging from localized disputes to major rivalries of national interests dominated the Antarctic region.[2] Several attempts to ensure international agreement were made but all proposals were met with opposition from one state or another. Finally, the Antarctic Treaty was concluded in 1959. One of the main reasons for that successful cooperation was the inclusion of Article IV.

Article IV of the Antarctic Treaty provides that there will be no “renunciation by any contracting party of previously asserted rights of and claims to” or “any basis of claim” to territorial sovereignty in Antarctica. Action taken while the treaty is in force cannot constitute “a basis for asserting, supporting, or denying” any territorial claims, rights, or bases of claims. “No new claim or enlargement of an existing claim” is permitted while the Treaty is in force.

Article IV effectively “freezes” the legal status quo in relation to territorial claims in Antarctica.

The article creates the ambiguity that promotes important international agreement while having no effect (either detrimental or positive) on sovereignty claims.

The provision leaves each state to interpret its content in accordance with its particular juridical interests. Its inclusion was particularly advantageous to the superpowers: the U.S. and U.S.S.R. (now Russia). The words “any basis of claim” in clause 1(b) may protect the prior interests of non-claimant states which have not previously sought to assert a claim but which might seek to do so in the future. The words “or those of its nationals” cover claims made on behalf of, but not ratified by, the state concerned.[3]

Article IV is called the “corner-stone” of the Antarctic Treaty System, without it the extensive scientific research that has been taking place in Antarctica would not be possible as it involves official agencies and associates of contracting parties’ governments working in areas which some states consider their territory.[4]

Article IV of the Antarctic Treaty and its mirroring articles in the other treaties present an admirable example of effective dispute management where dispute resolution is not feasible. Even though the disputes have not been resolved, nor is it guaranteed they won’t become a source of international tension in the region in the future, these provisions allowed, despite all the divergent interests, the states to cooperate closely in Antarctica in “the interest of all mankind”. As expressed by the British Representative to the Washington Convention, Mr Heap, “the equilibrium achieved between the states by means of Article IV should not be disturbed because it is the foundation of peace in the region”.[5]

(ii) Discuss the effects of Article XII subparagraphs 2) (a) of the Antarctic Treaty System.

Although the treaty does not provide for any specific termination date, it has been the practice of most contracting parties to regard the treaty regime as a temporary one and to interpret Article XII 2)(a) of the treaty as one signifying the termination of the present regime thirty years after the entry into force of the treaty. Subparagraph 2) (a) of Article XII provides that any party can call for a review conference after the expiration of thirty years (i.e. in 1991). No state did so, and on the thirtieth anniversary of the Treaty the parties recognized the continuing strength and relevance of the Treaty by adopting a declaration recording their determination to maintain and strengthen the Treaty and to protect Antarctica’s environmental and scientific values.[6]

(iii) Discuss the weaknesses of the Antarctic Treaty System.

It is true that the Antarctic Treaty System has managed Antarctica effectively to date, especially in keeping the region peaceful and demilitarized. However, there are certain weak points that keep it from being an all-encompassing success of international cooperation.

Firstly, for many years, a major criticism of the System had been the lack of a central body to monitor and enforce the regulations. For most of its existence, the Antarctic Treaty System operated without a permanent secretariat, which was only established in 2004. The Secretariat is subordinate to the ATCM which sits only once a year. A former executive secretary of the Secretariat, Johannes Huber, claims that the parties display disinterest in the “practical questions of ensuring its implementation or even its maintenance as a clear and consistent set of regulations”.[7] The Treaty relies for implementation entirely on the individual governments that are party to it. While the Antarctic Treaty System provides wide powers of inspection and observation, the inspectors lack enforcement powers. For example, in the cases concerning Convention for the Conservation of Antarctic Marine Resources (CCAMLR), inspectors may inspect catch, nets and other fishing gear, data, and records on catch and location. But in the event of a breach, they are only empowered to report and alert the master of vessels. Responsibility to enforce the regulation remains on the flag state.[8]

Secondly, the Treaty has no force for the 140 non-parties of the System. The non-parties are not barred from exploring and exploiting the resources on the Antarctic continent contrary to principles of the Antarctic Treaty System. They may equally pose a threat if they decide to rely on other provisions of international law in their activities. For example, mining in the regulated area is prohibited by the Protocol on Environmental Protection. On the other hand, regions of the Southern Ocean that lie within this area are also subject to deep-sea bed regulation by the United Nations Convention on the Law of the Sea. The deep-sea bed may potentially be subject to resource exploitation.[9]

While the threat of exploiting resources is still potential, there is an existing problem of poor marine life protection.[10] In the absence of sovereignty over the Antarctic land and, consequently, the absence of an Exclusive Economic Zone, the entire Southern Ocean from the edge of the Antarctic continent is considered high seas. All states enjoy high seas freedoms, including the freedom of fishing. CCAMLR contains regulations for management of Antarctic fisheries but their effectiveness is reduced by the inability to enforce CCAMLR against non-party states. Even contracting parties can circumvent CCALMR’s provisions by using flags of convenience.

Furthermore, the Antarctic Treaty System is lacking in governing the matters of jurisdiction. Article VIII of the Antarctic Treaty stipulates that observers, scientific personnel, and members of the staffs accompanying them are subject to jurisdiction of the state of their nationality. In case of any dispute, contracting parties are to reach an agreement via consultations. Thus, the Treaty failes to include any provisions establishing a jurisdictional status for persons other than those three categories. It is not clear how criminal and civil law can be enforced with respect to the non-scientific visitors and the growing numbers of tourists.

Finally, as mentioned above, tourism has experienced significant growth in the past several years. Collective impact of tourists may lead to pollution of the environment, hinder the scientific research and may pose a threat to the conservation of the wilderness of Antarctica. Tourism is barely regulated by the Antarctic Treaty System[11]; it’s left to autoregulation under the International Association of Antarctic Tour Operators (IAATO). However, tourism operators are not obliged to join IAATO and may bypass it in organizing their trips to the Antarctic. With the growth of tourism emerges the possible commercialisation of the Antarctic continent which raises the question whether Antarctica is still a continent devoted to science. Consequently, one may critique the fundamental condition to become a consultative party to the Antarctic Treaty – the obligation to conduct substantial scientific research. Will it still be relevant if scientific research is no longer the only objective of activities performed in the region?

You are a lawyer working for the government of the coastal state of Niceland, which has declared an Exclusive Economic Zone extending 200 miles from the baselines.

Advise its on the following situations:

i.- A Niceland warship navigating in international waters suspects a nearby ship, sailing under the flag of Uglyland, is engaged in slave trading and requests the government permission to board it.

According to article 110 of the United Nations Convention on the Law of the Sea (UNCLOS), a warship which encounters a foreign ship in international waters is justified in boarding it if there is reasonable ground for suspecting that the foreign ship engages in the slave trade. The examination should be carried with all possible consideration. Thus, the government of Niceland may give permission to board the ship of Uglyland. However, Niceland should be aware that the ship of Uglyland will be entitled to compensation for any loss or damage in case the suspicions prove to be unfounded[12].

ii.- Another ship, also with the Uglyland flag, seems to be transporting drugs. Permission is also requested.

UNCLOS does not include drug trafficking in the list of grounds which may justify boarding a foreign ship on the high seas. Instead, article 108 prescribes that all countries shall cooperate in the suppression of illicit traffic of narcotic drugs and psychotropic substances. The Convention promotes the flag state principle, only allowing a state to request international cooperation in suppressing drug trafficking when the state suspects a ship flying its flag of engaging in it.

Interdiction of a foreign ship is regulated by the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance. Article 17 of the Convention sets forth that when there are reasonable grounds to believe that a ship is engaged in illicit drug transportation, the suspecting state must seek the flag state’s consent before boarding the ship.

The Niceland warship is not allowed to board the ship flying the flag of Uglyland. The government of Niceland may request authorization from Uglyland to board and search the ship after confirming the ship is registered in Uglyland. In case of proceeding with the interdiction, the Niceland authorities should not endanger the safety of the sea life, the security of the ship and its cargo or prejudice the commercial and legal interests of Uglyland[13].

iii.- A Niceland warship has witnessed an oil tanker, sailing under the flag of Uglyland, cause serious marine pollution by recklessly discharging fuel 6 miles from the baselines, and has followed it. Both ships are now 50 miles from the baselines. Can it be boarded?

What if the discharge took place 20 miles from the baselines?

First of all, we need to establish that 6 miles from the baselines is within the territorial sea of Niceland; and 20 miles from the baselines is within the contiguous zone and the EEZ of Niceland.

UNCLOS defines marine pollution as “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”[14]. Discharge of pollutants into the sea could be either deliberate dumping of wastes or pollution due to shipping activities.

1. If what Niceland warship witnessed was an act of dumping as defined by article 1(5) UNCLOS, then according to article 210 UNCLOS Uglyland would have needed an express prior approval from Niceland before dumping within the territorial sea or the EEZ. Dumping without prior express approval of the coastal state constitutes a violation of UNCLOS.
2. If what took place was pollution due to shipping activities, it was most likely an operational discharge of fuel into the sea. International law of sea differentiates between operational and accidental discharges of oil. Accidental discharges occur when there’s a collision of vessels or a situation of distress at sea, such as explosion, engine breakdown or running aground. Operational discharges are deliberate and result from maintenance operations.^[15] Judging from the facts presented, we assume that the oil tanker under the flag of Uglyland was not in distress at sea as it continued sailing without interruption. Operational discharge of oil by vessels is not prohibited unless it violates certain standards laid by international agreements and national legislation. The main source for regulation of pollution from ships is the 1973 International Convention for the Prevention of Pollution by Ships as amended by the Protocol of 1978 (MARPOL).

In addition to international rules and standards, a state can enact laws and regulations pertaining to prevention and control of marine pollution in its territorial sea or the EEZ.

In the instance of the discharge happening 6 miles from the baselines, i.e. within the territorial sea of Niceland, article 220(2) UNCLOS is applicable. According to it, “where there are clear grounds for believing that the vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, […], may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, …”. If Niceland warship has reasonable grounds to believe that a violation of pollution prevention laws took place, it has the right to board and inspect the oil tanker. The fact that both ships are now 50 miles from the baselines suggests that the warship had to undertake the hot pursuit in accordance with article 111 UNCLOS. It had to be commenced only after a clear signal to stop was given to the oil tanker and could be continued outside the territorial sea if it had not been interrupted. Granted that all conditions are adhered to, the warship may detain and board the oil tanker.

In the case of the discharge happening 20 miles from the baselines, i.e. within the contiguous zone and the EEZ of Niceland, article 220 UNCLOS is again applicable. If Niceland has clear grounds to believe that the oil tanker violated applicable international rules or regulations of Niceland for pollution prevention, Niceland may require the oil ranker to five information regarding its identity and port of registry, its last and next port of call and other relevant information required to establish whether any such violation has occurred[16]. If the oil tanker failed to give relevant information and the discharge was substantial as to cause or threat significant pollution, Niceland could exercise physical inspection of the tanker[17]. If Niceland has clear objective evidence that such discharge will cause major damage to the coastline, it may detain the oil tanker[18]. In order to perform inspection or detention of the tanker the Niceland warship may commence the hot pursuit pursuant to article 111(2) UNCLOS and subsequently board the tanker, providing there was a clear signal to stop and the pursuit was not interrupted.

iv.- A fishing ship, sailing under the flag of Smileland, is operating 100 miles from the coast of Niceland. When confronted by a Niceland warship, it replies it’s operating in International waters and can therefore fish as much as it wants.

In accordance with the article 57 UNCLOS Niceland established an Exclusive Economic Zone extending 200 miles from the baselines. Regardless of the method employed to determine baselines, a ship operating 100 miles from the coast of Niceland is operating within the Exclusive Economic Zone of Niceland. The surface waters within the EEZ are referred to as international waters only when implying high seas freedom of navigation[19].

Pursuant to article 56 of the Convention, Niceland as the coastal state has sovereign rights over “exploring and exploiting, conserving and managing the natural resources, whether living or non-living” in its EEZ. Furthermore, Niceland determines the allowable catch of the living resources in the EEZ[20]. If Niceland granted access to other states to its EEZ for the purposes of harvesting the living resources, nationals of these other states would have to comply with the terms and regulations established by Niceland, which may include, inter alia, quotas of catch[21].

The fishing ship of Smileland had no right to fish 100 miles from the coast of Niceland, unless Smileland was given access to the living resources of Niceland’s EEZ, in which case the amount of allowable catch is not “as much as it wants” but that established by Niceland.

The Niceland warship may proceed with boarding, inspection, and arrest of the Smileland ship as may be necessary to ensure compliance with the laws and regulations of Niceland[22].

v.- The government of Smileland has informed the government of Niceland of its intention to lay down a submarine pipeline near a pre-existing one laid some years ago by Niceland. The pipeline would be laid at a distance from baselines ranging from 10 to 300 miles.

The proposed submarine pipeline will be laid in several maritime zones: the territorial sea (10 to 12 miles), the EEZ (12 to 200 miles) and the continental shelf (200 to 300 miles) of Niceland.

1. Niceland has the right to establish conditions for pipelines entering its territorial sea[23]. Niceland may also adopt regulations restricting the innocent passage through its territorial sea to protect existing cables and pipelines, and the living resources of the sea.
2. In the EEZ all states enjoy, subject to the relevant limitations, the freedoms referred to in article 87, including the freedom of laying submarine pipelines[24]. Therefore, Smileland’s activities of laying the pipeline are subject to Niceland’s sovereign rights to explore, exploit, conserve and manage natural and living resources of its EEZ.[25]
3. All states can lay submarine pipelines on the continental shelf subject to the coastal state’s right “to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines”.[26] It is also necessary to acquire consent of the coastal state to the proposed course of laying the pipeline.

Given that Smileland intends to lay its pipeline close to the pipeline laid by Niceland, Smileland should give the latter due regard and ensure that the possibilities of repairing the Niceland’s pipeline are not prejudiced.[27]

Article 19-21 of the Vienna Convention on the Law of Treaties 1969 allows states to enter reservations unless these are refused by other states or contrary to the objective of the treaty in question.

In 2011, the International Law Commission has discussed whether reservations should be permitted in the field of human rights.

Review the criteria established by the commission and discuss whether or not you consider that reservations should be permitted in the area of human rights.

In its Guide to Practice on Reservations to Treaties[28] completed in 2011 the International Law Commission (ILC) did not have a separate guideline relating to human right treaties. Instead, it opted for more general terms and urging consideration of the specifics of the treaty under review.

Part 3 of the Guide establishes the criteria for permissibility of reservations. It starts with reproducing the contents of Article 19 of the 1969 Vienna Convention. According to guideline 3.1 a reservation is permissible unless: a) it is prohibited by the treaty; b) it is not among the specified reservations permitted by the treaty: c) it is incompatible with the object and purpose of the treaty. Regarding the field of human rights, most issues arise when specifying the notions of “object and purpose” of a treaty. Guideline 3.1.5. gives the general idea of the meaning of the expression and guideline 3.1.5.1 provides a method of determining the “object and purpose” of the treaty. The next guidelines that apply specifically to human rights are 3.1.5.4 and 3.1.5.6.

In 3.1.5.4 the ILC clarifies that a reservation is not permitted to a provision “concerning rights from which no derogation is permissible under any circumstances, unless the reservation in question is compatible with the essential rights and obligations arising out of that treaty”.

Guideline 3.1.5.6 refers to treaties “containing numerous interdependent rights and obligations” which is usually the case of treaties in the field of human rights. In assessing the compatibility of a reservation with the object and purpose of such treaties, account should be taken of the importance of the provision in question within the general scope of the treaty, and also the extent of its importance on the treaty. Therefore, it can be inferred that certain right protected by international treaties may be less essential than others, and even in the case of essential rights, reservations may be permissible if they do not impede protection of the rights and do not excessively modify their legal regime.

While conceding that reservations to treaties in the field of human rights are “incompatible with the fundamental notion of human rights as being universal in application to every single human being”[29], we have to agree with the ILC that such reservations should not be declared impermissible ab initio, but should rather be subject to particular standards of examination. In our opinion, at the present time, reservations cannot altogether be avoided due to the diverging positions of states and the necessity to encourage participation of as many states as possible in the human rights treaties. The ILC attempted to improve the “object and purpose” test but, ultimately, its efficiency depends on its objective enforcement. Placing the task of deciding the permissibility of reservations on an independent body, established for the purpose of interpreting the treaty and monitoring the compliance by states with its provisions, seems to be a possible solution to the problem.

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[1] They are Argentina, Australia, Chile, France, New Zealand, Norway, the United Kingdom.

[2] Stokke, Olav Schram., and Davor Vidas. Governing the Antarctic: the effectiveness and legitimacy of the Antartic Treaty System. Cambridge University Press, 1996, p. 49, books.google.ru/books?id=hGC6ShBYdy0C&lpg=PP1&hl=ru&pg=PP1#v=onepage&q&f=false. Accessed 20 Apr. 2017.

[3] Gillian Triggs, The Antarctic Treaty Regime: A Workable Compromise or a Purgatory of Ambiguity, 17 Case W. Res. J. Int’l L. 1985, p. 200, heinonline.org/HOL/LandingPage?handle=hein.journals/cwrint17&div=&id=201&page=. Accessed 10 Apr. 2017.

[4] Watts, Arthur. International law and the Antarctic Treaty system. Vol. 11, Cambridge University Press, 1992, p. 126, books.google.ru/books?id=etNtoK1kqJYC&printsec=frontcover&hl=ru#v=onepage&q&f=false. Accessed 10 Apr. 2017

[5] Romualdo Bermejo, Antarctic System: Crisis or Success of Multilateralism, 22 Comp. & Int’l L.J. S. Afr. 1989, p. 22

[6] “The Antarctic Treaty Explained.” British Antarctic Survey, www.bas.ac.uk/about/antarctica/the-antarctic-treaty/the-antarctic-treaty-explained/. Accessed 11 Apr. 2017.

[7] Huber J, The Antarctic Treaty: Towards a new partnership, Berkman PA et al. (eds), Science Diplomacy: Antarctica, Science and the Governance of International Spaces. Washington DC: Smithsonian Institution, 2011, p. 44, www.atsummit50.org/media/book-14.pdf. Accessed 13 Apr. 2017.

[8] Martin Lishexian Lee, A Case for World Government of the Antarctic, 9 Gonz. J. Int’l L. 2005, p. 84, www.law.gonzaga.edu/gjil/2006/04/a-case-for-world-government-of-the-antarctic/. Accessed 12 Apr. 2017.

[9] Martin Lishexian Lee, A Case for World Government of the Antarctic, p. 83.

[10] Christina A. Hoefsmit, Southern Ocean Shakeup: Establishing Sovereignty in Antarctica and the Consequences for Fishery Management, 15 Roger Williams U. L. Rev. 2010, p. 565, heinonline.org/HOL/Page?handle=hein.journals/rwulr15&start_page=547&collection=journals&id=551. Accessed 19 Apr. 2017.

[11] “Challenges for the Antarctic Treaty System.” Vereniging voor de Verenigde Naties, www.vvn.be/wereldbeeld/challenges-antarctic-treaty-system/. Accessed 20 Apr. 2017.

[12] Article 110(3) UNCLOS.

[13] Article 17(5) of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substance.

[14] Article 1(4) UNCLOS.

[15] Global Marine Oil Pollution Information Gateway – Oil spills (Accidental discharges). oils.gpa.unep.org/facts/oilspills.htm. Accessed 15 Apr. 2017.

[16] Article 220(3) UNCLOS.

[17] Ibid at Article 229(5).

[18] Ibid at Article 220(6).

[19] Ibid at Article 58(1).

[20] Ibid at Article 61.

[21] Ibid at Article 62(4).

[22] Ibid at Article 73.

[23] Article 79(4) UNCLOS.

[24] Ibid at Article 58.

[25] Ibid at Article 56.

[26] Ibid at Article 79(1),(2).

[27] Ibid at Article 79(5).

[28] Report of the ILC on the Work of its 63rd session, GA, Official Records, 66th Session, Supplement No. 10, Addendum 1, Doc. A/66/10/Add. 1, legal.un.org/ilc/reports/2011/english/addendum.pdf. Accessed 23 Apr. 2017.

[29] Fournier, J., Reservations and the Effective Protection of Human Rights. Goettingen Journal of International Law 2(2), 2010. p.440, www.gojil.eu/issues/22/22_article_fournier.pdf. Accessed 23 Apr. 2017.