Environmental conservation policy

On the basis of the provisions of the Antarctic Treaty which have a rather indirect bearing on environmental questions, the Consultative Parties have undertaken an intensive norm-creating function in this field. It has taken the form, in the first place, of the adoption of various recommendations relating to the topic of the Impact of Man on the Antarctic Environment, and recently has focussed more specifically on the problem of oil pollution. As we had the opportunity to examine in Chapter 2, the measures enacted by the Consultative Parties can have either a recommendatory or a binding nature depending on the specific contents of the instrument in question. In the environmental field the trend has been generally to introduce measures of a binding nature, particularly by means of the resources regimes; the fact, however, that many times there are no adequate institutional procedures for enforcement has determined that State practice has become the single most important controlling factor of this policy, sometimes leading to abuses or distortions, a case in point being the recent discussion about the French airstrip at Pointe Géologie.

The competence of the Consultative Parties in the environmental sphere is largely founded upon the concept of the ‘special responsibility’ of the Treaty Parties in this field. Concurrently, the steps that have been taken in respect of the separate but linked resources regimes have been closely associated with the concerns existing in relation to environmental protection.

A trend clearly emerging from the evolution of the Antarctic Treaty System and its historical background is the strengthening of the process of international co-operation in Antarctica. While the development of this process has been characterized by a slow pace during the first twenty-five years since the 1959 Treaty came into force, there has been a recent acceleration of that pace and it can only be expected that further and quicker developments will take place in the near future.

Co-operation in the Antarctic has gained, firstly, in intensity. The rather simple approach of the 1959 Antarctic Treaty and early recommendations has given place to more elaborate mechanisms in recent recommendations and, above all, in the conventions that have come to supplement the initial framework of co-operation. Greater availability of instruments and procedures has accompanied this aspect of the unfolding process of co-operation, for which purpose the Treaty system has relied on some elements of flexibility arising from the Law of Treaties and from the practice of international organizations relating to the approval, entry into force and legal effects of resolutions and other instruments. This process has also gained in extension, as can be measured by the growing number of subjects covered by various forms of co-operation and by the larger number of States acceding to the Treaty system and related instruments or becoming engaged in active work in the Antarctic.

The complexity of interests involved in the negotiation

When the Antarctic Treaty parties embarked on their consideration of mineral resources, the basic elements of the applicable regime gradually began to take shape. The principles approved by the preparatory meeting in Paris in 1976 were successfully taken up and developed by Recommendations IX-1, X-1 and XI-1, which defined the essential features of the content and scope of such a regime. These instruments were based on the deliberations of specialized working groups which were convened either on the occasion of the various Consultative Meetings or on an ad hoc basis.

The detailed elaboration of the mineral resources regime has been the result of the tasks undertaken by the Fourth Special Consultative Meeting which began its work in 1982. The negotiations that have taken place in that context were of a highly complex nature since they involved a confrontation of ideas that differed both on the nature of the Antarctic Treaty system and on the specific problems relating to the management and organization of mineral resources.

The first type of conflicting interests involved in these negotiations was the approach that has traditionally separated claimant countries from those that do not recognize claims of sovereignty, a difference of point of view which, in the case of mineral resources, is exacerbated by the fact that the link between these resources and the question of sovereignty or sovereign rights is stronger than in the context of other subjects.

Since the Antarctic Treaty was signed in 1959, co-operation in the Antarctic has been the subject of continuing evolution and rapid change. The negotiation and subsequent enactment of various regimes for the conservation and management of Antarctica's natural resources has been a particularly important cornerstone in this process of adaptation to, and regulation of, new activities in Antarctica. The aggregate of treaties, recommendations and other instruments and procedures which have come to be known as the Antarctic Treaty system, contribute today to an impressive body of emerging law which governs the activity of men in that continent and in the Southern Oceans.

The first part of this book examines the main characteristics of the international legal framework governing the co-operation of States in Antarctica, with particular reference to the problems of conservation of resources in the area, inquiring into the evolution of this process of co-operation at different stages of activity in Antarctica and the new problems and requirements which the system has had to address as a consequence of the changing conditions. The expansion of the system into new fields of co-operation has been a central feature of this evolutionary process, giving place not only to increased law-making by the Treaty parties but also to important institutional developments.

The key question which any Antarctic regime has had to face either directly or indirectly is that of the exercise of jurisdiction and the legal bases on which it could be founded.

The Antarctic Treaty system has been based until now fundamentally on the activities of the Consultative Parties. This is not due to the fact that it is desired to make it an exclusive club, as some authors have described it, but because all the States which historically have developed an interest in this continent have acquired the status of Consultative Party, either because it was so recognized by the 1959 Treaty or because the special admission procedure was used to admit them as such.

The first programmes for the co-ordination of various types of international activity in Antarctica specified broad criteria for participation. The International Geophysical Year in 1957–1958 was a case in point. Among the many countries which participated in it, only twelve had a continuing interest in the Antarctic, shown by the maintenance of permanent bases in the continent and the carrying out of scientific research. It was from such interest and activities that the status of Consultative Party in the Antarctic Treaty originated and they have been the criterion generally adopted for the admission of new countries to this status. Whenever a country has qualified in terms of conducting the pertinent activities in the Antarctic it has not failed to acquire the status of Consultative Party by means of the procedures for admission.

The maritime extension of the Antarctic Treaty system

The national positions that have been explained have a determining influence on the approach of each country or group of countries to the problems related to the application of the law of the sea in Antarctica. The central question that has arisen in this regard is whether the subjection of maritime zones to national jurisdiction is a concept that can be made applicable to the situation of the Antarctic. Given the close links between the concepts of the territorial sea, the exclusive economic zone and the continental shelf and the territory of a coastal State from which these concepts derive, the territorial status of the continent is the starting point for developing a reply to this question.

The complexity of the problem is due not only to the different positions that have been adopted by the Treaty parties with regard to this territorial status but also to the fact that a process of rapid development in the international law of the sea itself was initiated simultaneously with the development of the Antarctic system. It may reasonably be stated that, at the time when the Antarctic Treaty was signed, the continental shelf doctrine was already established in customary international law in addition to the jurisdictional concepts governing traditional maritime areas such as the territorial sea and the high seas.

‘Realities’ in dealing with Antarctica

Central to all considerations of Antarctica is the fact that there is no agreement on the issue of sovereignty. But it could also be said that except inter se the seven claimant states (and leaving aside the matter of overlapping claims), all other states do not recognize these claims. There is also a large unclaimed sector. In addition, two states assert they have a ‘basis of claim’. Thus, in relation to the sovereignty issue, there is the reality of the claims, on which the claimant states are insistent; there is also the reality that these claims are not recognised by an overwhelming majority of states.

There are other realities which include the following:

1. i) the Antarctic Treaty has existed since 1959 and today has 32 signatory states; a number of conventions and agreements have evolved within the framework of the Treaty dealing with various activities in Antarctica; the parties to the Antarctic Treaty System (ATS) are anxious that its achievements which are based on the fragile agreement of Article IV of the Treaty, should not be prejudiced;

2. ii) Antarctica is not a minute atoll of no significance but it occupies some l/10th of the surface of the globe with a strategic location, fragile ecosystem, rich marine and, possibly, mineral resources; it therefore has great significance for international peace and security, economy, environment, scientific research, meteorology, telecommunications and so on; it also has no permanent human habitation;

3. […]

Introduction

Public interest in Antarctica is probably greater now than for many years, and seems likely to grow. Much of this interest is due, directly or indirectly, to the intergovernmental negotiations in which participating states are seeking to reach agreement upon a regime to govern the possible future search for and development of Antarctic minerals – negotiations which began formally in 1982, but for which the groundwork had been laid over the previous decade. These negotiations are still continuing. Add to this the potential economic significance of the subject-matter of the negotiations, the appeal of Antarctica and its capacity to stir the imagination, and speculation about untold wealth lying below the ice, and it is not hard to see why public interest is aroused.

The Antarctic minerals negotiations must, however, be set in a slightly different, and less glamorous, perspective. The realities can, perhaps, best be appreciated by posing, and then trying to answer, some basic questions:

1. i) What minerals?

2. ii) Why try to negotiate a regime now?

3. iii) Why does a regime have to be negotiated?

4. iv) Why should the Antarctic Treaty Consultative Parties be conducting negotiations?

5. v) What are the real problems?

6. vi) What are the answers?

What minerals?

In the present state of knowledge, speculation about untold mineral wealth in Antarctica, of an ‘El Dorado of the ice’, is no more than that – speculation. That cannot be emphasised too strongly, or repeated too often. The geology of Antarctica is something best left to others, but very much in laymen's terms, and in summary, such geological evidence as there is suggests that mineral deposits could well exist in Antarctica.

In 1984 the Secretary-General reported that ‘exploration for mineral deposits has barely started in Antarctica’. The reasons are clear; there is little incentive to search for economic deposits because of the hostile environment, lack of infrastructure, significant transportation problems, and high costs of exploration and mining operations and of developing the necessary technology. It is notable, for example, that the Antarctic continent is submerged thousands of feet below sea level by an ice-cap and only approximately 2% of the entire continent is exposed.

Despite these apparently insuperable difficulties, international attention has been attracted by discoveries of natural gas by the Glomar Challenger on the continental shelf off the Ross Ice Shelf in 1973, interests which became more acute after the oil crisis of 1970. Indeed, spectacular claims were made for a ‘Middle East’ in the Antarctic, including an assertion by the Wall Street Journal that oil reserves reported by the United States Geological Survey almost matched ‘the proven reserves of the entire United States’. Geological surveys which have been undertaken suggest a more conservative estimation of resources. Two mineral accumulations have been identified which are sufficiently large to term ‘deposits’; iron in the Prince Charles Mountains and coal in the Transantarctic Mountains. Occurrences of a wide range of minerals have been recorded including: copper, molybdenum, gold, silver, chromium, nickel, cobalt, tin, uranium, titanium, manganese, lead and zinc. Predictions are based in part upon the similarity between the Antarctic continent and other southern continents of comparable structure and age.