Antarctic Treaty System
The Antarctic Treaty System is the legal regime governing interstate relations with regards to Antarctica, and it is comprised of 4 main Agreements:
- The Antarctic Treaty (AT);
- The Conventions for the Conservation of Antarctic Seals (CCAS);
- The Conservation of Antarctic Marine Living Resources (CCAMLR); and
- The Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).
A fifth agreement, the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), has never entered into force.
The Antarctic legal regime draws its fundamentally special character from the following geopolitical facts:
- Antarctica is a continent made of a huge ice-covered landmass;
- There is no stable human population; and
- No country has sovereign rights over Antarctica, which is one of the four global commons (the others being the high seas, the atmosphere, outer space and telecommunications).
Based on these facts the legal regime that has developed over time is in many ways unique.
Antarctica is governed by the Antarctic Treaty System (ATS), which is the only legal regime which manages an entire continent.
The ATS is made of 5 main agreements:
- The Antarctic Treaty (AT);
- The Conventions for the Conservation of Antarctic Seals (CCAS);
- The Conservation of Antarctic Marine Living Resources (CCAMLR);
- The Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA); and
- The Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).
The ATS includes also the Recommendations adopted at meetings of the Antarctic Treaty parties and the results of Meetings of Experts, the decisions of Special Consultative Meetings and, at a non-governmental level, reflects the work of the Scientific Committee on Antarctic Research (SCAR).
The Antarctic Treaty
The AT "shall apply to the area south of 60° South Latitude, including all ice shelves" (Art. VI), and its main objective is that of ensuring “in the interests 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” (Preamble).
The twelve Signatories to the AT - Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, Russian Federation, South Africa, United Kingdom and United States - were the countries that were active in Antarctica during the International Geophysical Year of 1957–58. Those countries accepted the invitation of the United States to participate in the diplomatic conference held in Washington. During that conference the Treaty was negotiated, in 1959. The AT entered into force in 1961.
The AT is a "membership" agreement, as it establishes a governance hierarchy. Article IX creates three different groups of State parties, only two of which are entitled to attend the Consultative Meetings. These States are the original signatories plus those who acceded to the AT and fulfilled the requirements under art. IX.2. Both groups comprise the Antarctic Treaty Consultative Parties (‘ATCPs’). The third group consists of other accession States which however haven't fulfilled the requirements of art IX.2, whereby an accession country must demonstrate "its interest in Antarctica by conducting substantial scientific research activity there [...]"
The AT prohibits any and all military activities in Antarctica: "There shall be prohibited, inter alia, any measure of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapon" (art. I.2), "any nuclear explosions in Antarctica and the disposal there of radioactive waste material" (art. V) and provides for freedom of scientific investigation (art. II), promoting as well international cooperation and encouraging exchange of information: following art. III the Contracting Parties agree to, to the greatest extent possible, exchange "information regarding plans for scientific programs in Antarctica" (art. III.1), "scientific personnel" (art. III.2) and "scientific observations and results [...] shall be made freely available" (art. III.3). It encourages the peaceful settlement of disputes (Art. XI: "Contracting Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice") and allows for on-site no-warning "inspections" as an enforcing mechanism (with regards to the demilitarization provisions of the AT).
The AT had no Secretariat until 2004, and decision-making was left to the recommendations made at the annual Consultative Meetings, which are hosted in rotation by Consultative Parties. In 2004 an At Secretariat was created in order to: support the Antarctic Treaty Consultative Meeting (ATCM) and the Committee for Environmental Protection (CEP); promote the official information exchange between the Parties of the Antarctic Treaty; collect, maintain and publish the records of the ATCM and the CEP; provide information on the Antarctic Treaty system.
The most important aspect of the AT is linked to sovereignty claims. Article IV deals with that by "safeguarding" the rights of the three groups of countries Parties to the AT15: those countries that had “previously asserted rights of or claims to territorial sovereignty in Antarctica”, those that consider themselves as having “a basis of claim to territorial sovereignty in Antarctica”, and those that do not recognize “any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica” (Art. IV).
However, art. IV also provides that “no acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force".
The first dedicated environmental rules were established by the adoption of the 1964 Brussels Agreed Measures for the Conservation of the Antarctic Flora and Fauna, which designated the Antarctic region as a Special Conservation Area.
The Convention on the Conservation of Antarctic Seals
The next step towards more comprehensive environmental protection was the CCAS, which set limits to seals harvesting, protects fully some species of seals, and limits the method, season and areas for seal hunting. It also establishes that parties must exchange information and provide annual reports to the contracting parties and to the SCAR.
Conservation of Antarctic Marine Living Resources
CCMALR was adopted in 1980 and entered into force in 1982. Its objective is that of protection, scientific study and rational use (Art. II.2 "For the purpose of this Convention, the term ‘conservation’ includes rational use") of marine living resources. CCAMLR takes an multi-species ecosystem and precautionary approach, and as such has been considered a path-breaking agreement, and it has inspired more recent conservation MEAs such as the Convention on Biological Diversity which has "adopted it as a 'framework for the analysis and implementation of the objectives of the Convention'" (Redgwell 1999 quoting Decision II/8 (1995)).
CCAMLR's mandate is that of widely protecting the ecosystem within which marine living resources thrive, as opposed to focus on single species management: as art. II makes clear, one of the objectives is that of maintaining "the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources" (art. II.b) as well as that of preventing "decrease in the size of any harvested population to levels below those which ensure its stable recruitment" (art. II.a).
The precautionary approach is laid out by art. II.c, which states that "of changes or minimization of the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades" must be prevented, also "taking into account the state of available knowledge of the direct and indirect impact of harvesting, the effect of the introduction of alien species, the effects of associated activities on the marine ecosystem and of the effects of environmental changes, with the aim of making possible the sustained conservation of Antarctic marine living resources".
Convention on the Regulation of Antarctic Mineral Resource Activities
The CRAMRA was meant to regulate mineral resources activities such as prospecting, extraction and development, and the conditions under which they could be carried out. Article 1.6 defines mineral resources as "all non-living natural non-renewable resources, including fossil fuels, metallic and non-metallic minerals". It hasn't entered into force – and it will likely never do – as by the time of its adoption its provisions were widely considered not to provide a satisfactorily enough protection to the Antarctic environment. As France and Australia declared in 1989 that they would not ratify CRAMRA, it is unlikely that it will ever enter into force.
However, CRAMRA showed some very interesting and innovative provision which would subsequently inspire other MEAs (In particular with regards to liability rules for environmental damage, environmental impact assessment, dispute settlement etc). In particular it is worthy of mention the precautionary approach embraced by article 4 of CRAMRA which establishes environmental impact assessment as an objective of the Convention and as one of its principles. In particular, article 4.2 states that no activity shall be carried out "until it is judged, based upon assessment of its possible impacts on the Antarctic environment and on dependent and on associated ecosystems" that said activity wouldn't have harmful effects on air and water quality (Art. 4.2.a), atmospheric, terrestrial or marine environments (Art. 4.2.b), distribution, abundance or productivity of populations of species of fauna or flora (Art. 4.2.c), or generate further risks to already endangered or threatened species (Art. 4.2.c), and finally on areas of special biological, scientific, historic, aesthetic or wilderness significance (Art. 4.2.d).
Protocol on Environmental Protection to the Antarctic Treaty
The Madrid Protocol on Environmental Protection to the Antarctic Treaty was signed in 1991 by the parties to the AT and entered into force in 1998. It brings to completion what can be characterized as an "environmental transformation" of the Antarctic legal regime. The protocol – pursuing its goal of strengthening the environmental protection of Antarctica – established a fifty-year moratorium on Antarctic mineral resource activities. The Protocol and its Annexes "comprise the most comprehensive and stringent regime of environmental protection rules" (Sands 1995) negotiated under public international law. The main objective is the "comprehensive protection of the Antarctic environment and dependent and associated ecosystems" (art. 2). Moreover, the same article designate Antarctica as a "natural reserve, devoted to peace and science" (art. 2). However, prior to the adoption, many countries and NGOs had argued for Antarctica to be made into a World Park and brought within the UN management. Article 3 lays the rules that must regulate any activity in the Antartcic region, with paragraphs 2.a and 2.b repeating the provisions of CRAMRA article 4, hence following the same precautionary approach, with the (important) difference that the only activities allowed under the Protocol are scientific research (Art. 3.3 establishes that priority shall be given to "scientific research and to preserve the value of Antarctica as an area for the conduct of such research, including research essential to understanding the global environment".) and tourism. Article 3 establishes the environmental principles that shall regulate any activity in the Antarctic region: "The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and its aesthetic values and its values as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be of fundamental considerations in the planning and conduct of all activities in Antarctica". Article 3 also states that activities "shall be planned and conducted on the basis of information sufficient to allow prior assessment of, and informed judgments about, their possible impacts on the Antarctic environment and dependent and associated ecosystems", with sub-paragraphs i through vi listing what such judgments must be take account of.
The core of the Protocol is article 7, which states that "Any activity relating to mineral resources, other than scientific research, shall be prohibited". Article 14 expands the inspection mechanism of the AT, establishing furthermore that all reports of inspections shall be made publicly available, after having given the inspected country to comment prior to publication (art. 14.4). The Protocol's operations are managed by the AT consultative meetings and the newly created Committee for Environmental Protection, upon whose recommendations the meetings shall draw in carrying out its tasks and deliberating its decisions (art. 10.2).
There are VI Annexes to the Madrid Protocol. The Protocol and its first four annexes were adopted in Madrid, Spain, on October, 4 1991 and entered into force on January, 14 1998. The first four annexes are:
- Annex I on Environmental Impact Assessment;
- Annex II on Conservation of Antarctic Fauna and Flora;
- Annex III on Waste Disposal and Waste Management; and
- Annex IV on Prevention of Marine Pollution.
Annex V on Area Protection and Management was adopted under Recommendation XVI-10 at the XVIth Antarctic Treaty Consultative Meeting (ATCM) in Bonn, Germany, on October, 17 1991 and entered into force on May, 24 2002.
Annex VI on Liability Arising From Environmental Emergencies was adopted under Measure 1 (2005) at the XXVIIIth ATCM in Stockholm on June 14, 2005 and has yet to enter into force (although ratification procedures are ongoing).
Annex I: Environmental Impact Assessment
Annex I on Environmental Impact Assessment establishes the rules for a three levels of Environmental Impact Assessment. If an activity will have less than minor or transitory impact, it may proceed without further ado. An Initial Environmental Evaluation (IEE) is required if impacts will be minor or transitory, and the IEE must contain enough details so as to allow assessment of whether an activity will have only minor or transitory impact. If an activity will have more than a minor or transitory impact, a Comprehensive Environmental Evaluation (CEE) is required. When the CEE is required, it must follow publicity rules and must be considered by the Committee for Environmental Protection. The CEE requires that a draft be made public and circulated among the parties for a period of 90 days, in order to allow comments. Any comment must be included in the final version of the CEE, upon which decisions on the activity in question must be based (art. 4 Annex I).
Annex II on Conservation of Flora and Fauna restates and replaces the 1964 Agreed Measures on the Protection of Flora and Fauna. Annex III on Waste Disposal and Waste Management sets stringent waste disposal standards. Annex IV deals with Prevention of Marine Pollution, and sets standards similar to those of the MARPOL Convention, and it specifically links to it. MARPOL's ANNEX I in fact prohibits discharges of oil in certain special areas, of which Antarctica is one. Annex V is about Area Protection and Management.
A sixth Annex on Liability Arising From Environmental Emergencies has been adopted but it hasn't entered into force yet. It arose out of art. 16 of the Madrid Protocol. "Consistent with the objectives of this Protocol for the comprehensive protection of the Antarctic environment and dependent and associated ecosystems, the Parties undertake to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area and covered by this Protocol. Those rules and procedures shall be included in one or more Annexes to be adopted in accordance with Article 9 (2)"
The ATS has been able to make – through an incremental approach to environmental protection – significant contributions to international law and provided an advanced model of environmental regime. Notably, elements of innovation regards decision-making by international organizations; expanded use of techniques for environmental impact assessment and monitoring, new approaches to such issues as liability.
Antarctica was very well suited for a comprehensive treaty system such as the ATS, due to the lack of any permanent human population and the lack of any commercial or industrial activity. Once the sovereign claims were frozen, the country parties were able to develop over time an innovative regime of stringent environmental protection based on a precautionary, multi-species, ecosystem-based approach, entirely managed through the ATS, which has been described as a "microcosm for the evolution of international environmental law and policy" (Kimball L. as quoted in Sands 1995).
- Antarctic Treaty Secretariat
- Cohen, H. K., Handbook of the Antarctic Treaty System, 2002, United States Department of State, Under Secretary for Democracy and Global Affairs, Bureau of Oceans and International Environmental and Scientific Affairs Report
- Sands, P., Principles of International Environmental Law – Volume I standards, principles and implementation, Manchester Unviersity Press, 1995
- Nowlan, L. Arctic Legal Regime for Environmental Protection, 2001, IUCN Environmental Law and Policy Paper No. 44
- Redgwell, C., Protection of Ecosystems under International Law: Lessons from Antarctica, in International Law and Sustainable Development, Boyle, A. and Freestone, D. (eds), Oxford Unviersity Press, 1999
- Rothwell, D., The Polar Region and the Development of International Law, Cambridge: Cambridge University Press, 1996