Challenges for the Antarctic Treaty System

Introduction

1. This article is based on presentations made and opinions expressed during the Academic Workshop on the Antarctic Treaty System held on 25 May 2013 in the Royal Academy of Sciences and Arts in Brussels. This workshop was organised by the Leuven Centre for Global Governance Studies and the United Nations Association Flanders Belgium (VVN) with the support of Belspo and the Royal Flemish Academy of Belgium for Science and the Arts. Chatham House Rules applied to this workshop. Therefore, this article will not credit the opinions it incorporates to the persons who expressed them during the workshop.
   

2. The Antarctic Treaty, which was signed in 1959, determined in its preamble that the Antarctic region would be devoted to peace and science and would not become the scene of international discord. The treaty also banned all nuclear activity from Antarctica.[1] It was a major achievement that such a treaty could be ratified, given the circumstances; not only was there an agreement between the two superpowers of the cold war—the United States and the former USSR—the treaty was also ratified despite the fact that seven states[2] claimed a portion of the Antarctic region and two states[3] reserved the right to do so in the future.[4] Though these claims had little recognition from the international community, they were not abandoned.[5] The issue was ‘frozen’. In other words, the claims retain the status they had at the time of conclusion of the Treaty, meaning they are neither recognised, nor abandoned.[6]

During the course of its existence, the Antarctic Treaty has been able to adapt to new challenges that were presented to it. The Antarctic Treaty grew into a treaty system (known as the Antarctic Treaty System, or the ATS) with inter alia the adoption of different new conventions, such as the Sealing Convention and the Convention on the Conservation of the Antarctic Marine Living Resources (CCAMLR). Finally, in 1991, an Environmental Protocol—one of the most stringent environmental instruments in international law to date—was added to the Antarctic Treaty.

3. However, times have once again changed and new circumstances have arisen. Increase in human activity in the Antarctic region, due to inter alia global warming, and the conclusion of new international conventions and treaties are two of the most important issues putting the Antarctic Treaty System under pressure and giving rise to new challenges. The goal of this article is to discuss these new circumstances and the challenges they pose, and to offer some solutions or at least fresh insights for the highly necessary debate.[7]

4. This text will be divided in two sections. In a first section, it will discuss how the circumstances surrounding the Antarctic Treaty have changed. The melting of the ice, due to global warming, as well as technological advancements have resulted in an important increase in human activity. Human activity has not only increased in absolute numbers, but also in scope with many new activities arising. Besides an increase in human activity, the changing scene of international law will also be discussed.

In the second section, from these changing circumstances, some concrete challenges for the Antarctic Treaty System will be addressed. This article, however, will only focus on three challenges the Antarctic Treaty is faced with: the protection of the Antarctic environment, the regulation of tourism in Antarctica, and the question of jurisdiction in the Antarctic region. Other challenges might shortly be discussed in order to clarify the three challenges mentioned. Along with the discussion of these challenges, some possible solutions will be put on the table.

1. Changing circumstances affecting the Antarctic Treaty System

1.1 Growing and diverging human activity in the Antarctic region

5. It is a well-known and well-documented fact that the Antarctic icecaps are melting due to global warming.[8] Combined with technological advances, this creates greater opportunities for human activity in the Antarctic region. Places that were unsurpassable or unreachable have become available for human presence. Subsequently, a substantial growth in human activity has occurred in the Antarctic region.[9] It suffices to compare a present map of the existing scientific stations with a similar map from thirty of forty years ago.

6. Besides an increase in absolute numbers of human activity in the Antarctic, there are also several new activities being exercised in the Antarctic region. While no one could have foreseen that tourism would become an important activity in Antarctica at the time of the drawing up of the Antarctic Treaty, the number of tourists has steadily grown over the course of the past decennia such that in 2007 no less than 37.500 tourists visited the Antarctic region.[10]
   

7. Another activity that has the potential of becoming very important in the Antarctic region is so-called biological prospecting, often abbreviated to bioprospecting. Although there is a lot of discussion on the definition of this term, bioprospecting can be defined as the commercialisation of knowledge gained from research with regard to bio-organisms.[11] Antarctica is home to different extremophiles because of the extreme circumstances that reign there. Some of the knowledge gained from the study of these extremophiles can be used for commercial purposes. The natural anti-freeze found in certain bacteria in the Antarctic, for example, has found several commercial applications such as the better preservation of certain types of food or even of human organs. Consequently, different companies have expressed their interest in commercialising some of the knowledge gained from the Antarctic research.[12]
   

8. Lastly, IUU (i.e. illegal, unreported and unregulated) fishing, though not new to the Antarctic region, has alarmingly increased during the last decennium. Because it remains difficult to patrol Antarctic waters and because of technical difficulties from the demilitarization of the Antarctic region, IUU fishing poses a real threat to the Antarctic ecosystem, and therefore to the Antarctic Treaty System.[13] Questions of jurisdiction are also raised and the boundaries of the theory of ‘hot pursuit’ have been explored because of this phenomenon.[14]
   

1.2 Changes in international law

9. Since the conclusion of the Antarctic Treaty in 1959, international law underwent profound changes. There has been a proliferation of international and multinational treaties and many new international organisations have seen the light. This has raised the question of the relation of the Antarctic Treaty System and its components to these new international treaties and international organisations.[15]
   

10. An important treaty in this respect is the United Nations Convention on the Law of the Sea (also known as UNCLOS), signed in 1982.[16] This convention consists largely of codified customary law, but also incorporates some major changes. A main example of such a change is the regime for the deep seabed[17]. An International Seabed Authority (ISA) has been founded which is responsible for granting permits for the exploitation of mineral resources from the deep seabed. The question has therefore arisen whether the ISA could grant permits for mineral exploitation of the deep seabed in the Antarctic region, despite the Madrid Protocol, which prohibits mineral exploitation in the Antarctic. To answer this question, some other questions need to be answered first, such as the territorial scope of the Antarctic Treaty and its different components. These questions, which are merely some examples of the great number of questions raised by the entering into force of UNCLOS, will be examined more closely in the second section.

11. UNCLOS has also had important consequences for the Antarctic Treaty System because of the obligation it contains for all states wishing to claim an extended continental shelf to submit certain information to the Commission on the Limitation of the Continental Shelf within a period of ten years. This has prompted the different Antarctic claimant states to reassert their claim by making a submission, which has given rise to a renewed debate on the question of national sovereignty in the Antarctic.[18]
    

12. Another change in international law relevant to the Antarctic Treaty System is the growth of the number of environmental treaties in force, such as the Biodiversity Treaty. This raises the question of the application of these treaties to the Antarctic Treaty Area and of cooperation between the organisations founded by these treaties and the Antarctic Treaty Members.[19]

2.  Challenges posed by the changing circumstances

2.1 Objectives of the Antarctic Treaty System

13. To distil the concrete challenges from these changed circumstances, the objectives the Antarctic Treaty regime must first be determined. After all, the changed (and still changing) circumstances only challenge the Antarctic Treaty System in so far as they affect the possibility of reaching the objectives of this system.
    

14. Most of the objectives of the Antarctic Treaty and its system can be found in the preamble of the Antarctic Treaty itself:
    

“Recognizing that it is 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;

Acknowledging the substantial contributions to scientific knowledge resulting from international cooperation in scientific investigation in Antarctica;

Convinced that the establishment of a firm foundation for the continuation and development of such cooperation on the basis of freedom of scientific investigation in Antarctica as applied during the International Geophysics Year accords with the interests of science and the progress of all mankind;”

15. Three main objectives can be distilled from this part of the preamble. Firstly, Antarctica may never become the scene or object of international discord. Secondly, Antarctica may only be used for peaceful purposes. Lastly—and this objective was meant to be the glue keeping the Antarctic Treaty together—international cooperation in the field of scientific investigation is also an important objective of the Antarctic Treaty.
    

16. These objectives were confirmed in the preamble of the Environmental Protocol of 1991. The Environmental Protocol, however, also confirmed that during the course of its existence, the Antarctic Treaty System had gained a new objective, namely the protection of the Antarctic environment.[20] This environmental protection objective, which remarkably includes the protection of wilderness and aesthetic values, seems to now have become (one of) the main objective(s) of the Antarctic Treaty System as evidenced by article 3.1 of the Environmental Protocol:

“The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.”

17. Research performed by scholars in different countries shows that these four objectives correspond greatly to what people around the world consider the main objectives for the Antarctic Treaty System should be.[21] Because of this great popular support for these objectives, they should be taken all the more seriously.
    

18. When the objectives of the Antarctic Treaty System are confronted with the new circumstances that have arisen, it immediately becomes clear that the Antarctic Treaty System faces a lot of challenges. However, since this article is based on the presentations and discussions at the academic workshop held on 25 May 2013, the challenges discussed will be limited to the challenges that were discussed during this workshop.[22]

Firstly, the environmental protection system of the Antarctic Treaty System and the impact of growing human activity in the region will be confronted. In this paragraph, the question will be asked if the environmental protection system in place will suffice to ensure the protection of the environment despite the growing human activity. Secondly, the issue of the growing touristic industry in the Antarctic will be discussed.[23] Although this topic is closely related to the first one, tourism also poses a lot of challenges that are not environment-related. For example, it also poses a challenge to the objective of scientific research.[24] Therefore it merits an own section. Thirdly, the issue of jurisdiction will be discussed. Though jurisdiction is not a goal in itself for the ATS, the regulation of jurisdiction is necessary to attain the other objectives of the ATS. This issue is also not new, but with the growth of human activity, the importance and relevancy of this issue have grown exponentially.

2.2 Protection of the environment

2.2.1 Very good work on paper

19. As has been mentioned above, the Antarctic Treaty System has one of the most stringent environmental protection systems of the international law.[25] Since the entry into force of the Environmental Protocol in 1991, no activity in the Antarctic can be organised without a prior environmental impact assessment.[26] Also, mineral exploitation has been completely prohibited in the Antarctic Treaty area since the entry into force of this protocol.[27]
    

20. With regard to protection of the fauna of Antarctic, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) has to be mentioned. This Convention has a different area of application than the Antarctic Treaty itself, which applies south from 60° Southern Latitude. CCAMLR applies south from the Antarctic Convergence. This convergence, which is mostly situated between 50° South Latitude and 60° South Latitude dependent on the location, marks the limit of the Antarctic ecosystem. By defining the territorial scope of CCAMLR thusly, the members of the Treaty have adopted an ecosystem approach. This ecosystem approach is essential for conservation of the Antarctic ecosystem because it is very unstable due to its great reliance on krill[28].
    

21. Theoretically, the environmental protection system of the Antarctic Treaty System is incredibly strict. And, when reading through different texts adopted by the Antarctic Treaty Members, one can notice that these states regard themselves as being the stewards or trustees of the Antarctic region.[29] They consider it up to them to ensure that future generations have similar possibilities as the present generation, as they govern the continent for the benefit of all mankind.[30] The Antarctic Treaty Members seem engaged in conserving the Antarctic environment and, on paper, they are even doing a very good job.
    

2.2.2 Business-as-usual will not suffice

22. However, even the already strict system will not lead to sufficient protection of the environment to ensure similar possibilities for the future generations. The greatest danger to the Antarctic environment comes from cumulative impacts. Though every little activity in itself does not harm the Antarctic environment greatly, the combination of all these little activities on the other hand poses a great threat. The obligatory environmental assessment impacts do little to counter this problem. Therefore, in a scenario of business-as-usual (meaning that Antarctica will get more crowded and hotter), the current legislation does not suffice. The Environmental Protocol does not go beyond damage control.

23. Not only does the current legislation not suffice, there are also problems with the implementation of the Environmental Protocol. Not all countries have implemented the Protocol in a sufficiently strict manner. This leaves possibilities for individuals or companies wanting to develop activities in the Antarctic to go forum-shopping, to look for ‘jurisdictions of convenience’, where the rules with regard to the environmental impact are less strict. Combined with the problems of jurisdiction vis-à-vis third state nationals, which will be discussed below, there are great difficulties in enforcing the environmental regulations of the ATS.

24. Lastly, there is also an underlying issue causing problems for the Antarctic Treaty’s environmental protection system. Policymakers have to build their legislation on scientific findings to create working environmental legislation. However, when doing so, they are faced with the fact that even exact sciences are subject to major discussions and that scientific findings are not always as clear as hoped. Therefore, those who are opposed to more stringent environmental protection rules can easily base their opposition on scientific findings and theories, thus judging that there is no need to regulate more strictly. This raises the question of how to deal with disparities in scientific findings when designing environmental policy.[31]

2.2.3 What is needed?

25. To resolve this situation, firstly, the Antarctic Treaty Members must pressure every member state to the Antarctic Treaty System to implement the rules of the ATS in a strict manner. New, more stringent environmental protection regulations will be of no avail if they are not properly implemented.

26. Besides proper implementation of the existing regulation, more stringent new regulation will also be needed. When designing this new regulation, policymakers will have to base this regulation on scientific findings. However, as mentioned above, this is not evident. Therefore, scientists will have to learn how to translate scientific findings into policy-relevant information. This will be a condition sine qua non for a performant environmental protection system. This will pose even greater difficulties if the Antarctic Treaty Members want to start acting more proactively and taking the precautionary principle into account. However, taking this principle into account is greatly needed. It is, for example, highly recommended to implement long term monitoring programs at every station.

27. However, most of all, the Antarctic Treaty Members need to cope with the problem of cumulative impacts. As mentioned above, it is the combination of all the little activities that is putting the Antarctic environment and ecosystem under great pressure. Coping with these cumulative impacts could prove most problematic, since in liberal societies it is difficult to forbid activities. This is even more difficult when the activity in itself is not very damaging to the environment.

28. Therefore, what is needed most is a real behavioural change. People need to be taught how fragile the Antarctic environment and ecosystem are. They need to understand the problems posed by cumulative impacts. Moreover, they need to organise their activities accordingly. This is one of the great challenges, not only for the ATS, but also for every liberal society that wants to engage in environmental protection.

2.3 Regulation of Antarctic tourism

2.3.1 Issues arising from the growing tourism

29. As mentioned above, tourism experienced incredible growth at the beginning of the new millennium.[32] Though this growth has had some positive consequences by creating ‘ambassadors’ for the Antarctic continent, it has also had a lot of negative impacts. In the field of environmental protection, tourism is a prime example of cumulative impacts[33]: one tourist will not harm the Antarctic environment in any considerable way, but 37.500 tourists a year might. These tourists could not only pollute the environment, but also sites which have not yet been researched by scientists, possibly putting tourism as an activity at odds with scientific research as one of the primary goals of the Antarctic Treaty System. Also, these tourists pose a great threat to the conservation of a certain wilderness in Antarctica.
    

30. Despite the clear threat tourism poses to the Antarctic environment, it is barely regulated by the Antarctic Treaty Members. The states have only built a skeletal framework and have left it to the tourism sector to regulate itself. Responsible for this autoregulation is IAATO (the International Association of Antarctic Tour Operators). The autoregulation, despite being rather strict, has some issues. For example, tourism operators are not obligated to join IAATO and could therefore organise tourist trips to the Antarctic without the IAATO regulations being applicable to them. In other words, there are great gaps in the tourism regulation system, and the ATS lacks a holistic policy.
    

31. Because of the tourism issue, some structural issues of the ATS are also surfacing. A first fundamental question which is raised by the tourism issue, is the question whether Antarctica still remains a continent devoted to science. After all, with the rise and growth of tourism comes the possible commercialisation and commodification of the Antarctic continent. The fear of commercialisation and commodification is strengthened by the appearance of activities as bioprospecting.

Closely related with the issue of commercialisation, is the critique against the condition to become an Antarctic Treaty Consultative Party (ATCP)[34], namely the obligation to conduct substantial scientific research in the Antarctic region.[35] Can this condition be upheld if the Antarctic continent does not remain devoted to scientific research?[36]

A third fundamental issue raised is whether the ATS has to be governed by consensus, since de facto every ATCP can now exercise a veto, which can easily lead to blockages in the Antarctic Treaty Consultative Meeting. Voting by consensus has inter alia stopped the Antarctic Treaty Consultative Parties from acting more proactively and strictly in the field of tourism. Defenders of the consensus-system, however, respond that majoritarian decision-making would be the cause of lots of frictions, as they have seen happen in several other international organisations. Also, decisions taken by majority would lead to more problems when it comes to implementation of the regulations adopted.

The tourism issues also raises fundamental questions about jurisdiction in Antarctica. These questions will however be considered in a next section.

2.3.2 Reforms proposed

32. To deal with the important threat posed by the growing tourism in the Antarctic, some reforms are needed. First of all, negotiating a dedicated tourism convention for the Antarctic region would at least force the ATCPs to discuss the threat posed by tourism. Also, this convention could serve to reaffirm the philosophic base of the Antarctic Treaty, namely international cooperation in scientific research, and in doing so combat the commercialisation of the Antarctic region.

Secondly, scientific and environmental organisations related to the Antarctic Treaty, such as SCAR (Scientific Committee on Antarctic Research) and CEP (Committee for Environmental Protection), should be consulted more often on issues of tourism. This could lead to a better overview of the impact of tourism on the Antarctic environment and research.

Thirdly, tourist operators would have to be taxed by the Antarctic Treaty System as a whole. The funds gained from these taxes could then be used to fund a tourism secretariat, which could serve a twofold purpose. On the one hand, this secretariat could be used to accredit tourism operators to develop activities in Antarctica and to control these activities. On the other hand, this secretariat could assemble information, such as statistics on the number of tourists visiting Antarctica per year or on the situation of the Antarctic tourism, which would allow for a better overview of the situation.

Lastly, the ATCPs should consider setting up partnerships with certain UN organisations and other international organisations, such as the International Maritime Organisation, the UN Environmental Program, and the World Tourism Organisation. This could lead to a sharing of knowledge and institutional capacity. It could also enhance the legitimacy of the Antarctic Treaty System, making it easier to exercise jurisdiction in the Antarctic region.

2.4 Jurisdiction

2.4.1 A well-known problem for Antarctica

33. Jurisdiction has been a problem for the ATS since the beginning. This is evidenced by the fact that article IX.1(e) provides that questions relating to the exercise of jurisdiction in Antarctica shall be discussed periodically. In 1962, the United Kingdom asked to set up a committee of experts to definitively determine the grounds for jurisdiction in Antarctica. However, their plea fell on deaf ears. In 2012, after an incident during which French tourists damaged a historical hut and could not be prosecuted by the French state due to a lack of jurisdiction, France again asked to put the question of jurisdiction on the agenda. However, the question of jurisdiction has still not been solved.[37]
    

34. It is practically impossible to apply the normal grounds for jurisdiction in international law, such as territory or nationality (or flag state), because of the specific circumstances in Antarctica. The main problem is the uncertainty that exists with regard to sovereignty in the Antarctic region. Since jurisdiction is normally linked to sovereignty, uncertainty with regard to who is sovereign leads to uncertainty with regard to who can exercise jurisdiction.[38]
    

35. If jurisdiction poses such great challenges to the ATS, why has the problem not been solved after more than 50 years? Two possible explanations can be given. Firstly, states don’t want to discuss jurisdiction because it is so closely linked to sovereignty. Admitting to the existence of certain kinds of jurisdiction could lead to a weakening or a strengthening of the existing claims. For example, if jurisdiction on the base of nationality were the rule, this would weaken the existing claims since claimant states would lose a claim to territorial jurisdiction.

Secondly, some states also view the question of jurisdiction as a purely internal question for them. Jurisdiction is a national matter and international law only needs to deal with problems of non-compliance.

36. The evolution of human activity in Antarctica can also explain why the question of jurisdiction has not been dealt with from the beginning. When the Antarctic Treaty entered into force, most of the people on the Antarctic continent were pursuing scientific activities. Scientific activities are easily related to a certain state (through state funding for example), which makes it intuitive to accord jurisdiction over scientific personnel to the related state. However, the growing human and NGO activity in Antarctica will eventually force the ATCPs to more clearly determine grounds for jurisdiction. As disputes over jurisdiction start to rise with the growing number of tourists and the growing number of reports of IUU fishing, it would be better to start the discussion on the subject soon.

2.4.2 Jurisdiction provisions in the Antarctic Treaty System

37. The Antarctic Treaty System is, however, not entirely silent with regard to jurisdiction. When reading through the Antarctic Treaty System, some provisions can be found which hint as to how jurisdiction can be determined. However these provisions only relate to jurisdiction in case of violation of the rules of the ATS. Except for article VIII of the Antarctic Treaty, discussed below, there is no clue in the ATS as to how general criminal and civil law can be enforced. Therefore, the exercise of general criminal and civil law depends entirely on the approach of the states involved, except for the cases envisaged by article VIII of the Antarctic Treaty.[39]
    

38. Article VIII of the Antarctic Treaty deals with jurisdiction over observers and exchanged scientific personnel. With regard to these types of persons, only the state of which these persons have the nationality has jurisdiction. This jurisdiction on the basis of nationality can, however, not be expanded to other persons as well, since article VIII itself provides that it is without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica.
39. Several scholars, therefore, look to Article VII(5) of the Antarctic Treaty as a base to build a system of jurisdiction for Antarctica on. This article determines that states have to give advanced notice to the other states of activities organised from their territory. On this ground, it could be argued that the state from which an activity is organised, has jurisdiction over the activity and the persons exercising it.

Though this article surely has some promise, there remain several problems with its application.  Firstly, the article supposes that all member states to the ATS have to set up some kind of system to know which activities are organised from their territory. However, not all states have set up such systems. If article VII(5) were to be accepted as an exclusive ground for jurisdiction, this gap in compliance could lead to forum-shopping and gaps in the jurisdictional net.

Secondly, it is unclear if all activities exercised in Antarctica fall under the obligation of article VII(5) of the Antarctic Treaty. In this respect, reference has to be made to the Environmental Protocol, which obliges every activity to be subject to a preliminary environmental impact assessment. With regard to the activities envisaged by this obligation, article 8.2 of this Protocol contains the wording ‘any activities undertaken in the Antarctic Treaty Area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty Area for which advance notice is required under Article VII(5) of the Antarctic Treaty’. This clarifies at least that the obligation of advance notice is not limited to scientific activities. However, the question remains if there are certain activities for which advance notice is not obligatory. If there are any, then the question is which grounds of jurisdiction apply to these activities.

40. Though these two articles are the most important articles of the Antarctic Treaty, several other articles can be found in the ATS which hint to certain types of jurisdiction. However, all these provisions will not be discussed here, since they are too numerous. Also, the articles above only hint to possible grounds of jurisdiction. In no way are these grounds for jurisdiction accepted by all member states to the ATS. The grounds for jurisdiction are, thus, not at all clear in the ATS.

2.4.3 Enforcing ATS legislation vis-à-vis third states (and their nationals)

41. Building upon the uncertainty of the ATS itself, is the question of whether the legislation adopted by the ATCPs can be enforced vis-à-vis third states and their nationals. Under normal circumstances, treaties are only binding upon the contracting parties that, if needed, have to ensure the compliance of their nationals. There are, however, certain exceptions to this principle.
    

42. One of these exceptions, which some contracting parties claim is applicable to the ATS, is the theory of the objective regime.[40] Essentially, an objective regime is a regime governing a certain region that claims universal enforceability. Some scholars are of the opinion that the ATS qualifies for this theory, because it has ruled the Antarctic for more than 50 years without too much resistance and because most people in the world are nationals of a state which is party to the ATS.
    

However, the theory of the objective regime knows little (or no) applications.[41] Also, though most people belong to a state which is party to the ATS, most states are not party to the ATS: of 192 existing states, only 50 are included. Thirdly, there has long been fierce opposition against the Antarctic Treaty System and the way it was governed, especially in the Eighties when the ATCPs were considering the possibility of mineral exploitation of the Antarctic continent. Lastly, the most important argument pertains to the question of whether objective regimes can even exist in a system of international law that is based upon the ideas of consensus and the free consent of states. Therefore, it seems difficult to grant the ATS the status of an objective regime, and enforcing the ATS legislation vis-à-vis third states and their nationals remains difficult.

2.4.4 Determining the territorial scope of application

43. Finally, even if the legal quagmire surrounding jurisdiction under the ATS were to be resolved, and even if the ATS were to find a way of enforcing its legislation against third states and their nationals, there would remain a problem with regard to the territorial scope of application of the Antarctic Treaty. This problem relates to the question whether maritime territorial zones (can) exist in Antarctica.[42] This is not only relevant for determining the territorial scope of enforcing jurisdiction, but also for the territorial application of the Antarctic Treaty System. As mentioned above, the question whether maritime zones exist in Antarctica is greatly relevant to determine the rules applicable under UNCLOS, such as the competence of ISA.[43]
    

44. For maritime zones to exist, it is required that there is a coastal state which exercises sovereign rights over the adjacent coast. However, due to the limited recognition of their claims and their weak foundation under international law, it is uncertain whether the claimant states can be regarded as sovereign coastal states. If the claimant states were not regarded as coastal states, no maritime territorial zones could exist. This would also mean that the high seas would extend up to the coast of the Antarctic continent.[44] Furthermore, due to the wordings of article VI of the Antarctic Treaty, which determines that nothing in the Antarctic Treaty will prejudice the exercise of the freedoms of the high seas, it is generally agreed that the legislation of the ATS (except for that of CCAMLR) does not apply to the high seas. Therefore, the territorial scope of the ATS (with the exception of the territorial scope of CCAMLR) would be limited to Antarctic landmass.[45] 

 

2.4.5 Possible solutions

45. Solving all these jurisdictional issues will not be easy. However, four recommendations can be made. Firstly, the ATCPs have to start negotiating about the grounds on which jurisdiction can be based. In doing this, they already have some articles, especially article VII(5), on which they can base themselves. This might lead to tensions because of the situation with regard to sovereignty, but with the growing human activity the need to determine the grounds for jurisdiction also grows, as recognised by the 35^th ATCM in Resolution 2(2012).
    

46. Secondly, while the proposed negotiations with regard to the grounds for jurisdiction should be underway, the ATCPs should cooperate in matters of general civil and criminal law. This will allow to partly overcome the lack of clear jurisdictional rules.
    

47. Thirdly, the ATCPs should claim collective jurisdiction over the maritime zones. For example, they could submit a joint claim to the Committee on the Limitation of the Continental Shelf demanding the establishment of an extended continental shelf appurtenant to the Antarctic continent. This will clarify the regime applicable to the waters surrounding Antarctica, which will inevitably grant more legitimacy for interventions against, for example, individuals engaged in IUU fishing.
    

48. Lastly, the ATCPs should try to woo third states which are not parties to the ATS, but which want to develop activities in the region, into joining the ATS, as they have successfully been doing for the last 50 years. This will render the problem of exercising jurisdiction against third states less important.
    

Conclusion

49. For over 50 years, the Antarctic Treaty System has proven able to adapt to changing circumstances and challenges that have arisen. Whether the system can also survive these new challenges remains to be seen. After all, some of the challenges arising actually confront the foundation of the Antarctic Treaty System. The growing importance of tourism, for example, and the commercialisation and commodification which come with it, seem to be at odds with scientific research as the main goal of the Antarctic Treaty System. Also, the growing need to determine the grounds for jurisdiction threatens to resurface the sovereignty issue, as the entering into force of several provisions of UNCLOS has already done to some degree. Lastly, dealing with the cumulative impacts endangering the Antarctic environment will prove difficult and might even conflict with the foundations of liberal society.
    

50. Therefore, the debate on these topics cannot wait any longer. If the Antarctic Treaty Members start the debate too late, this will only cause the debate to get all the more heated. We can only hope that this article transfers some sense of urgency to the Antarctic policymakers and offers some interesting points of view for the debate that must start now.

Appendix. Agenda of the Academic Workshop on Antarctica of 25 May 2013

09:00-10:00       Introductory Keynotes

 Chair: Prof. Dr. Jan Wouters, Jean Monnet Chair EU and Global Governance, Full Professor of International Law and International Organizations, Director, Leuven Centre for Global Governance Studies, KU Leuven

• Keynote by Prof. Dr. René J.M. Lefeber, Professor of International Environmental Law, University of Amsterdam
  Legal Aspects: Achievements and Challenges for the Antarctic Treaty System
• Keynote by Prof. Dr. Kees J. Bastmeijer, Professor of Nature Conservation and Water Law, Tilburg University
  The Antarctic Treaty System: Human Use and Protection of Antarctica ‘in the Interest of All Mankind’?

10:00-11:30 Panel 1: Challenges for the Antarctic Treaty System

 Chair: Prof. Dr. Frank Maes, Professor of Environmental Law, Ghent University

• Tina Tin, Human Engagement with the Antarctic Environment
• Jessica O’Reilly¸College of St. Benedict/St. John’s University, Technocratic Wilderness: An Ethnography of Scientific Expertise and Environmental Governance in Antarctica
• Jane Verbitsky, AUT University, Antarctic Tourism: Facing the Rubicon?
• Gonchar, Russian Ministry of Foreign Affairs, Internal and External Challenges for the Antarctic Treaty Regime

11:45-13:15 Panel 2: Legal and Policy Issues

 Chair: Prof. Dr. Erik Franckx, Member of the Permanent Court of Arbitration, Research Professor, President of the Department of International and European Law, Vice-dean of the Faculty of Law and Criminology, Vrije Universiteit Brussel

• Philippe Gautier, Université catholique de Louvain, The Exercise of Jurisdiction over Activities in Antarctica
• Jill Barrett, British Institute of International and Comparative Law, Exercise of Jurisdiction in the Antarctic Treaty Area in Relation to Non-Governmental Activities

13:15-13:30 Concluding Remarks by the Organizers

 

[1] Article V Antarctic Treaty

[2] The United Kingdom, New Zealand, Australia, France, Norway, Argentina and Chile.

[3] The USA and the USSR

[4] The foundation for these claims is contestable at least: C.P. Economides, “Le Statut International de l’Antartique résultant du Traité du 1 décembre 1959”, RHDI 1962, Vol. 15, 76-86.

[5] These claims are still actively being defended: K. Dodds, “Sovereignty watch: claimant states, resources, and territory in contemporary Antarctica”, Polar Record 2011, 231-242.

Some authors state though that these claims should be abandoned: A.D. Hemmings, “Beyond Claims: Towards a Non-Territorial Antarctic Security Prism for Australia and New Zealand”, New Zealand Yearbook on International Law 2008, Vol. 6, 77-92; and J. Grobb, “Antarctica’s Frozen Territorial Claims: A Meltdown Proposal”, Boston College International and Comparative Law Review 2007, Vol. 30, 461-484.

[6] Article IV of the Antarctic Treaty.

[7] Other interesting texts in this regard are: A.D. Hemmings, “From the New Geopolitics of Resources to Nanotechnology: Emerging Challenges of Globalism in Antarctica”, Y.B. Polar Law 2009, 55-72; C.C. Joyner, “Challenges to the Antarctic Treaty: Looking back to see ahead”, New Zealand Yearbook of International Law 2008, Vol. 6, 25-62 and D.R. Rothwell and H. Nasu, “Antarctica and International Security Discourse: A Primer”, New Zealand Yearbook of International Law 2008, Vol. 6, 3-23.

[8] For a discussion of the relation between climate change and international law, see: R. Lefeber, “Polar Warming: An Opportune Inconvenience” (Draft),  Amsterdam Law School Legal Studies Research Paper No. 2012-86, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151241, lastly consulted on 25 November 2013.

[9] The discussion with regard to the use of Antarctic resources is not new: F. Zegers-Santa Cruz, “El Sistema Antártico y la Utilización de los Recursos”, University of Miami Law Review 1978-1979, Vol. 33, 426-473.

[10] For statistics, see: http://iaato.org/tourism-statistics

[11] For example, some definitions of bioprospecting do not include commercialisation as the purpose of bioprospecting.

[12] The UN have made a report on this phenomenon: D. Lohan and S. Johnston, Bioprospecting in Antarctica, UNU-IAS Report, May 2005, http://www.ias.unu.edu/binaries2/antarctic_bioprospecting.pdf, 30p. For the legal issues ensuing from this new activity, see: E. Giroux, “Bioprospection en Antarctique: Juridiction des Etats et Libre Disposition des Résultats”, Revue Québécoise de droit international 2010, Vol. 23, 187-208; J. Jabour-Green and D. Nicol, ‘Bioprospecting in Areas Outside National Jurisdiction: Antarctica and the Southern Ocean’, Melbourne Journal of International Law 2003, Vol. 4, 76-111 and C.C. Joyner, “Bioprospecting as a challenge to the Antarctic Treaty” in A.D. Hemmings, D.R. Rothwell and K.N. Scott, Antarctic Security in the Twenty-First Security. Legal and Policy Perspectives, Oxon, Routledge, 2012, 197-214.

[13] See for example: M. Haward, “Marine Resources Management, security and the Antarctic Treaty System, an ongoing agenda?”, in A.D. Hemmings, D.R. Rothwell and K.N. Scott, Antarctic Security in the Twenty-First Security. Legal and Policy Perspectives, Oxon, Routledge, 2012, 215-237, and E.J. Molenaar, “Southern Ocean Fisheries and the CCAMLR Regime” in A.G. Oude Elferink and D.R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, The Hague, Martinus Nijhoff Publishers, 2001, 293-316.

[14] See for example: R. Davis and E. Lee, ‘Marine Environmental Protection and the Southern Ocean: The Maritime Jurisdictional Dimension of the Antarctic Treaty System’ in A.G. Oude Elferink and D.R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, The Hague, Martinus Nijhoff Publishers, 2001, 201-224.

[15] For a discussion of the relation of the Antarctic Treaty System to these other Conventions, see inter alia: P. Vigni, “The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area”, Max Planck Yearbook United Nations Law 2000, Vol. 4, 481-542.

[16] D.R. Rothwell, “The Law of the Sea and the Antarctic Treaty System: Rougher Seas Ahead for the Southern Ocean?” in J. Jabour-Green  and M. Haward (eds.), The Antarctic: Past, Present and Future. Antarctic CRC Research Report #28, Hobart 2002, 113-125.

[17] I.e. the subsoil of the ocean beyond the boundaries of national sovereignty.

[18] See for example: M. Weber, “Delimitation of the continental shelves in the Antarctic Treaty area: lessons for regime, resource and environmental security” in A.D. Hemmings, D.R. Rothwell and K.N. Scott, Antarctic Security in the Twenty-First Security. Legal and Policy Perspectives, Oxon, Routledge, 2012, 172-196, and N. Krüger, Anwendbarkeit von Umweltschutzverträgen in der Antarktis : the applicability of environmental treaties in the Antarctic, Berlin, Springer, 2000, XXII+360p.

[19] See for example: R. Lefeber, “Polar Warming: An Opportune Inconvenience” (Draft),  Amsterdam Law School Legal Studies Research Paper No. 2012-86, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2151241, lastly consulted on 25 November 2013.

[20] “Convinced that the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems is in the interest of mankind as a whole.”

[21] T. Tin, K. Bastmeijer, J. O’Reilly, and P. Maher, “Public Perception of the Antarctic Wilderness: Surveys from an Educated, Environmentally Knowledgeable European Community” in: A. Watson, J. Murrieta-Saldivar and B. McBride (eds.), Science and Stewardship to Protect and Sustain Wilderness Values , proceedings of the Ninth World Wilderness Congress Symposium, 6-13 November, 2009, Meridá, Yucatán, Mexico, published by United States Department of Agriculture Forest Service, Rocky Mountain Research Station (Proceedings RMRS 64), Fort Collins, August 2011, available at http://www.fs.fed.us/rm/pubs/rmrs_p064.pdf, pp. 109-117, lastly consulted on 25 November 2013.

[22] Some topics which were only briefly discussed during the workshop will not be discussed, while others will be only shortly discussed, such as the problems with regard to bioprospecting and the sovereignty issue.

[23] See for example: J. Verbitsky, “titanic Part Two?: Tourism, Uncertainty, and Insecurity in Antarctica” in A-M. Brady (ed.), The Emerging Politics of Antarctica, London, Routledge, 2013, 220-241.

[24] By introducing some sort of commercialisation in the Antarctic Treaty Area, and because of the possibility of the pollution of sites that have not yet been explored and researched by scientists.

[25] For a discussion, see: S. Pannatier, ‘La protection du milieu naturel antarctique et le droit international de l’environnement’, European Journal of International Law 1996, Vol. 7, 431-446.

[26] Article 8 of the Environmental Protocol.

[27] Article 7 of the Environmental Protocol.

[28] A crustacean that forms the main diet for a lot of the animals living in the Antarctic ecosystem.

[29] Which has been explicitly recognised by New Zealand: “New Zealand Statement of Strategic Interest in Antarctica, revised 2002”, New Zealand Yearbook of International Law2004, Vol. 1, 219-221.

[30] This applies also the continuing existence of wilderness. Therefore, the principle of protection of the wilderness and aesthetic value of the Antarctic region can be found in this Protocol. See on this topic: K. Bastmeijer, “Protecting Polar Wilderness: Just a Western Philosophical Idea or a Useful Concept for Regulating Human Activities in the Polar Regions”, Yearbook Polar Law 2009, Vol. 1, 73-99.

[31] See for example: J. O’Reilly, “Tectonic History and Gondwanan Geopolitics in the Larsemann Hills, Antarctica”, PoLAR 2011, Vol. 34, 214-232 and S. Pannatier, ‘La protection du milieu naturel antarctique et le droit international de l’environnement’, European Journal of International Law 1996, Vol. 7, 431-446.

[32] Interesting articles with regard to the tourism issue are inter alia: K. Bastmeijer, “Tourism in Antarctica: Increasing Diversity and the Legal Criteria for Authorisation”, New Zealand Journal on Environmental Law 2003, Vol. 7, 85-118; E.J. Molenaar, “Sea-Borne Tourism in Antarctica: Avenues for Further Intergovernmental Regulation”, International Journal of Marine and Coastal Law 2005, Vol. 20, 247-295; A.N. Wright, “Southern Exposure: Managing Sustainable Cruise Ship Tourism in Antarctica”, California Western International Law Journal 2009, Vol. 39, 43-86 and J. Verbitsky, “titanic Part Two?: Tourism, Uncertainty, and Insecurity in Antarctica” in A-M. Brady (ed.), The Emerging Politics of Antarctica, London, Routledge, 2013, 220-241.

[33] This is especially true since 85% of the tourism is concentrated around the Antarctic Peninsula.

[34] States can only vote on Antarctic Treaty meetings if they have attained the status of Antarctic Treaty Consultative Party.

[35] There are many complaints that this condition is effectively keeping developing countries from attaining the right to vote.

[36] This question reminds us of the situation in the eighties, when the Antarctic Treaty Consultative Parties were considering the possibility of mineral exploitation in the Antarctic region.

[37] The Antarctic Treaty Members did however agree to cooperate on the discussion with regard to jurisdiction in Resolution 2(2012) of the 35^th Antarctic Treaty Consultative Meeting. This resolution can be found on the website of the Antarctic Treaty: http://www.ats.aq/documents/ATCM35/fr/ATCM35_fr002_e.pdf

[38] This uncertainty has caused some problems for Australia in the HSI litigation. See: R. Davis, “Enforcing Australian Law in Antarctica: the HSI Litigation”, Melbourne Journal of International Law 2007, Vol. 8, 142-158.

[39]  For a proposal to clarify this point, see: T.F. Chatham, “Criminal Jurisdiction in Antarctica: A Proposal for Dealing With Jurisdictional Uncertainty and Lack of Effective Enforcement”, Emory International Law Review 2010, Vol. 24, 331-356.

[40] For an application to the Antarctic Treaty, see: B. Simma, “The Antarctic Treaty as a Treaty Providing for an Objective Regime”, Cornell International Law Journal 1986, Vol. 19, 189-209.

[41] The discussion of the existence of objective regimes revolves mostly around the question whether the ATS can be regarded as such a regime.

[42] Because of the uncertainty with regard to the legal status of ice, there is also a problem with the baseline—and thus the outer limits—of maritime zones. This problem will, however, not be discussed here. For a discussion of these problems, see: S.B. Kaye, “Territorial Sea Baselines Along Ice Covered Coasts: International Practice and Limits of the Law of the Sea”, Ocean Development & International Law 2004, Vol. 35, 75-102, and A.G. Oude Elferink and D.R. Rothwell (eds.), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction, The Hague, Martinus Nijhoff Publishers, 2001, 382p.

[43] The competence of the ISA to grant exploitation permits would extend up to the coast of the Antarctic continent, if no maritime zones would exist.

[44] Defending this point of view: C.A. Hoefsmit, “Southern Ocean Shakeup: Establishing Sovereignty in Antarctica and the Consequence for Fishery Management”, Roger Williams University Law Review 2010, Vol. 15, 547-582.

[45] The question then remains whether ice formations are regarded as landmass or as high seas.