Antarctica: the treaty system and territorial claims
Standard Note: SN/IA/5040 Last updated: 18 July 2012
Author: Arabella Thorp Section International Affairs and Defence Section
The unique treaty system that protects the Antarctic is constantly updated and sometimes challenged. A current Private Member’s Bill would implement recent changes in the UK.
The UK is one of seven states with territorial claims in the Antarctic. The 1959 Antarctic Treaty froze all territorial disputes relating to the continent in order to further peaceful scientific investigation and conservation there, and its 1991 Protocol introduced stringent measures on environmental protection including a 50-year moratorium on mineral extraction. A new annex to this Protocol was agreed in 2005 which requires visitors to Antarctica to be prepared for an environmental emergency or pay for the clean-up of any damage: the Antarctic Bill 2012-13 would allow the UK to implement this and make some other minor changes.
The relationship between the Antarctic Treaty System and the 1982 UN Convention on the Law of the Sea – which includes the right to exploit the continental shelf up to 350 nautical miles from shore – is far from clear. Australia and Argentina are the only countries so far to have submitted a claim to a portion of the Antarctic’s extended continental shelf. The UK has only reserved the right to do so in future.
This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.
This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. Contents
1 Introduction 3
2 British presence 4
3 Antarctic Treaty System 5 3.1 The 1959 Antarctic Treaty 5 Competing territorial claims 5 Establishing research stations 5 Purpose of the Treaty 5 Parties to the Treaty 6 Significance of the Treaty 7
3.2 Other agreements and protocols 8 Introduction 8 Five international agreements 8 Mineral development: CRAMRA and the 1991 Protocol 9 1991 Protocol on Environmental Protection 9 UK ratification of the 1991 Protocol and the Liability Annex 10
4 Law of the Sea and claims to the continental shelf 11 4.1 Introduction 11 4.2 1982 UN Convention on the Law of the Sea 11 4.3 Extended continental shelf claims 13 4.4 Claims in the Antarctic 13
2 1 Introduction Antarctica, over 50 times the size of the UK, and bigger than China and India combined, is the largest wilderness on Earth. The continent and its surrounding seas cover one tenth of the globe, and the Antarctic ice-sheet makes up nine tenths of the world’s ice. Its size means that what happens there has enormous effects on the world’s weather and ocean systems, and its relatively pristine environment gives it unique importance to scientific research. This has given rise to a unique system of legal and environmental protection.
[Source: CIA World Factbook]
3 Seven countries – beginning with the UK in 1908 and including Argentina, Australia, Chile, France, New Zealand and Norway – have made territorial claims to the Antarctic. These claims have a variety of grounds, and most are “of rather dubious quality”.1 Several overlap, as the map above shows. The Antarctic Treaty (see below) puts these claims on hold.
Antarctica’s importance is not only scientific and ecological but also potentially commercial. Antarctica is known to have mineral deposits, though any sizeable deposits that are easy to reach are few and not currently economically viable to mine (one of the main problems is the vast covering of moving ice streams and glaciers). The US Geological Survey did not include Antarctica or the surrounding waters in its 2000 World Petroleum Assessment, but some other estimates of Antarctic oil and gas resources have been made. In 2000 the US Environmental Information Administration stated that Antarctica’s Ross and Weddell Seas are thought to have resources of up to 50 billion barrels of oil, an amount roughly equivalent to that of Alaska's estimated reserves.2 The Weddell Sea is largely in the area claimed by the UK.
2 British presence The UK’s Antarctic claim rests on a number of discoveries and claims by British explorers. These include Captain Cook’s 1775 ‘rediscovery’ of South Georgia and his claiming of the island in the name of King George III, and his discovery the same month of the South Sandwich Island group. The first siting of the Antarctic coast is credited to Edward Bransfield, a Royal Navy officer, in 1820.3
The FCO country profile of Antarctica provides the following information on the UK’s territorial claims in Antarctica and the British Antarctic Survey:
The United Kingdom made the first territorial claim to part of Antarctica in 1908, by Letters Patent. It has maintained a permanent presence in the British Antarctic Territory [BAT] since 1943, when Operation Tabarin was established to provide reconnaissance and meteorological information in the South Atlantic Ocean. This ‘secret’ wartime project, which became the civilian Falkland Islands Dependencies Survey in 1945, became in 1962 the British Antarctic Survey (BAS). The BAS is responsible for most of Britain’s scientific research in Antarctica. It maintains active links with scientists world wide and is involved in international programmes devised through the Scientific Committee on Antarctic Research (SCAR). SCAR provides independent technical and scientific advice to the Treaty System’s Consultative meetings. Its permanent Secretariat is based at the Scott Polar Research Institute (SPRI) in Cambridge.
[…]
The BAT comprises that sector of the Antarctic south of latitude 60 degrees South, between longitudes 20 degrees West and 80 degrees West. It is located in the coldest, driest and windiest continent in the world. The average annual temperature at the South Pole is minus 49 degrees Celsius. Only 0.7% of the BAT’s surface is ice-free. The remainder is covered by a permanent ice sheet of up to 5 kilometres thick. The highest mountain in the BAT, Mount Jackson, is 3,184 metres high.
[…]
1 Malcolm N. Shaw, International Law, 5th edition, 2003, p456 2 US Energy Information Administration, Antarctica: Fact sheet, September 2000 3 Christopher C. Joyner, Antarctica and the law of the sea, 1992, p48
4 Originally administered as a Dependency of the Falkland Islands, the BAT became an Overseas Territory of the United Kingdom in its own right by Order in Council on 3 March 1962. It is administered by the Foreign and Commonwealth Office (FCO) and the Commissioner for the BAT is the Head of the FCO's Overseas Territories Directorate. The BAT has a full suite of laws, and legal and postal administrations.
The BAT, which covers approximately 1.82 million square kilometres (700,000 square miles) of land, has no indigenous population, but contains permanent British research bases as well as the bases of other nations. It is the largest of the British Overseas Territories, and has its own legal system and laws. The BAT issues its own postage stamps and all British research stations have their own post office. British base commanders are sworn in as magistrates and conduct official duties such as stamping visitors' passports.
3 Antarctic Treaty System 3.1 The 1959 Antarctic Treaty Competing territorial claims By the 1950s, five sixths of Antarctica had been claimed by seven countries, and most of the British claim of 1908 was overlapped by Chilean and Argentinean claims.4 Other states were also asserting rights to make their own claims. Although several states have recognised each others’ territorial ambitions in Antarctica, none of the territorial claims is recognised by non-claimant States.5 Significantly, the USA has refused to recognise any Antarctic claims, and although the American Admiral Byrd discovered and claimed Marie Byrd Land for his country, the USA refrained from adopting the claim.6
Establishing research stations At the same time, the importance of Antarctic scientific research was becoming more apparent. During the International Geophysical Year (IGY) of 1957-58, 40 research stations were installed in Antarctica by scientists from 12 countries.7 The success of research ventures and the degree of international co-operation encouraged the countries involved to seek a solution to the governance of Antarctica and establish a mechanism that would defuse escalating disputes over sovereignty.
Purpose of the Treaty Twelve states (some with territorial claims, some not) therefore negotiated the Antarctic Treaty, which was signed in Washington on 1 December 1959, and entered into force in 1961. Its main purpose is to ensure “in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.
The Treaty applies to the entire area south of 60º latitude, including ice shelves, but explicitly does not affect states’ rights under international law with regard to the high seas within that area (Article VI).
4 For a map of the various claims, see the Discovering Antarctica website. 5 Britain’s Role in Antarctica, Foreign and Commonwealth Office, February 1993, p8 6 Malcolm N. Shaw, International Law, 5th edition, 2003, p456 7 Lee Kimball, ‘Environmental law and Policy in Antarctica’, in Greening International Law, ed. Phillipe Sands, 1993, p122
5 Parties to the Treaty The original signatories to the Treaty were the twelve countries that were active in Antarctica during the IGY of 1957-58 and then accepted the invitation of the USA to participate in the diplomatic conference at which the Treaty was negotiated in Washington in 1959. These Parties have the right to participate in the consultative meetings provided for in the Treaty.
Since 1959, 38 other countries have acceded to the Treaty. They are entitled to participate in the consultative meetings when they are “conducting substantial research activity” in Antarctica. Of the 38 acceding countries, 16 have had their activities in Antarctica recognised according to this provision, so there are now 28 Consultative Parties altogether. The other 22 non-Consultative Parties are invited to attend the consultative meetings but do not participate in decision-making.8
Original signatories Other consultative parties Non-consultative parties Argentina Brazil Austria Australia Bulgaria Belarus Belgium China Canada Chile Ecuador Columbia France Finland Cuba Japan Germany Czech Republic New Zealand India Denmark Norway Italy Estonia Russia South Korea Greece South Africa Netherlands Guatemala United Kingdom Peru Hungary United States of America Poland North Korea Spain Malaysia Sweden Monaco Ukraine Pakistan Uruguay Papua New Guinea Portugal Romania Slovak Republic Switzerland Turkey Venezuela
The annual Antarctic Treaty consultative meetings (ATCM) are the highest-level international forum responsible for the protection and management of the Antarctic region. They are for "exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering and recommending to their Governments measures in furtherance of the principles and objectives of the Treaty" (Article IX). The ATCM adopt decisions and resolutions (which are not legally binding) and measures (which are legally binding once they have been approved by all the Consultative Parties).
At the 35th ATCM, for example, held in Australia in June 2012, the parties agreed actions to ensure that tourism activities in Antarctica are conducted safely and in a manner that
8 Secretariat of the Antarctic Treaty website, Parties [undated; viewed 17 July 2012]
6 protects the environment, and guidelines on the planning of safe and environmentally responsible yacht expeditions in Antarctic waters.
The next ATCM will be in Belgium in May 2013.
Significance of the Treaty The 1959 Treaty was in several ways a remarkable and trend-setting agreement. It was designed to further peaceful scientific investigation and conservation of the continent, and it owes much to an unusual degree of international co-operation and foresight. The international scientific community played an integral part in its creation and development, and the involvement of the UN was minimal.
One of the most important features of the Treaty was that, in order to further peaceful scientific investigation, the substantial differences concerning territorial claims were put on hold:
ARTICLE IV
1. Nothing contained in the present treaty shall be interpreted as:
(a) a renunciation by any Contracting Part of previously asserted rights of or claims to territorial sovereignty in Antarctica;
(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;
(c) prejudicing the position of any Contracting Party as regards its recognition or non- recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica.
2. 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.9
The Parties also agreed to demilitarise the continent, foregoing any military activities including conventional or nuclear weapons testing, and banning the disposal of radioactive waste. A regular procedure for the exchange of information and planned activities was developed, and the Treaty included precedent-setting inspection provisions, to allow a country to descend unannounced on another’s research station in order to verify compliance with the Treaty.10
As well as the peaceful pursuit of science, there may be other motives behind the presence in the content of many nations. It has been suggested, for example, that the bases owned by Chile and Argentina were overtly military and carried out relatively little science, their role being to maintain a sovereign presence.11 Indeed, though the Treaty’s ‘freeze’ on territorial claims is often assumed to mean that these claims are not a factor in policy debates, some
9 Article IV para 2 10 Lee Kimball, ‘Environmental law and Policy in Antarctica’, in Greening International Law, ed. Phillipe Sands, 1993, p124 11 ‘Dawn at the end of the earth’, The Economist, 25 September 1993, p127
7 commentators suggest that “nothing could be further from the truth”.12 All new policies and protocols have to be carefully drafted to avoid prejudicing the legal positions of claimants and non-claimants. The Treaty preserves the incompatible views regarding territory, but prevents any action being taken to support, deny, create or extend claims to territorial sovereignty as long as it is in force. All of these factors make the governance of Antarctica more complex than anywhere else on earth.13
3.2 Other agreements and protocols Introduction It was recognised early on that the Antarctic environment is highly sensitive to human interference, and that much of the continent’s scientific and ecological importance derives from its uncontaminated, unpolluted nature. The likelihood of many scientists and other visitors converging on the limited areas where bases could readily be established (the 2% of the continent not permanently under ice) and the likely effects of this on the local wildlife were also recognised.
As a result, the Consultative Parties have adopted hundreds of measures, decisions and recommendations. As well as these, five separate international agreements, each in its time acknowledged as a trail-blazer in international environmental law, have been agreed. Together with the original Treaty, these provide the framework governing all activities in Antarctica. This is collectively known as the Antarctic Treaty System. It remains outside the UN system, and now has its own Secretariat of nine permanent staff based in Argentina.
Five international agreements The five international agreements in addition to the Antarctic Treaty are:
• Agreed Measures for the Conservation of Antarctic Fauna and Flora (adopted June 1964): protect designated species and areas, and prohibit the deliberate introduction of non-native flora and fauna, parasites and diseases. They also provide that no native bird or mammal can be killed or captured without a licence from a competent authority. Concentrations of wildlife such as seal and penguin colonies are protected from disturbance, and specially-protected areas and species are designated.
• Convention for the Conservation of Antarctic Seals (CCAS) (adopted December 1972, entered into force March 1978): seeks to curb high seas sealing. It bans commercial sealing for some species and sets quotas for some others. It sets areas and seasons when sealing is prohibited and establishes three seal reserves.
• Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) (adopted May 1980, entered into force April 1982): regulates commercial fisheries around the Antarctic. Reflecting recognition of the significance of krill in the food web, the CCAMLR takes an ‘ecosystem approach’, considering the effect of commercial fishing not only on the targeted species but also on the prey and predators of that species. It entered into force in 1982, about a decade after fishing started in the Southern Oceans, by which time the fish stocks were already seriously depleted.14 However, it has made good progress since then.
12 Lee Kimball, ‘Environmental law and Policy in Antarctica’, in Greening International Law, ed. Phillipe Sands, 1993, p125 13 Ibid 14 Britain’s Role in Antarctica, FCO, February 1993, p12
8 • Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) (adopted June 1988, but superseded by the 1991 Protocol on Environmental Protection and unlikely to enter into force) – see below.
• Protocol to the 1959 Antarctic Treaty on Environmental Protection (adopted October 1991, entered into force January 1998) – see below.
Mineral development: CRAMRA and the 1991 Protocol The question of mineral wealth in the Antarctic became more urgent in the 1970s. The 1972 OPEC oil embargo, inquiries from marine geophysical prospecting companies and circumstantial evidence of hydrocarbons from a deep-sea drilling exercise in the Ross Sea continental shelf in 1972-73 all spurred discussion among Treaty nations as to the possibility of setting up a legal regime to govern mineral activities.
This resulted in the signing in June 1988 of the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), a legally-binding agreement to govern the possibility of mineral resource development in the continent and to prohibit any development unless it was authorised by consensus and in accordance with environmental assessment and other safeguards.
Several states signed the Convention, but opposition to it began to grow, including a General Assembly resolution voicing ‘deep regret’ at the signing of such a convention despite earlier resolutions calling for a moratorium on negotiations to create a minerals regime in the Antarctic.15 The CRAMRA has not entered into force.
During the 1980s, general environmental awareness and public concern over problems such as climate change and ozone depletion had been growing, and international environmental campaigns, led notably by Greenpeace, had developed, opposing the prospect of any mineral development whatsoever in the Antarctic. It had also become clear during the 1980s that the Antarctic Treaty System with CRAMRA was not flexible enough to adapt to new environmental protection provisions.
It appears that several countries came simultaneously to the conclusion that CRAMRA should be abandoned, that mineral development should be banned completely, and that comprehensive environmental protection was needed. In 1989 the UK convened a special meeting to discuss the possibility. Australia and France then jointly proposed an alternative environmental protection convention, and together with New Zealand, subsequently endorsed both a ban on mineral activities and the establishment of Antarctica as a ‘wilderness reserve’.
However, other governments still hoped to retain CRAMRA, simply adding environmental measures on top. This split led the UN to hope that support for the Antarctic Treaty System as the appropriate forum for dealing with Antarctic issues might be dislodged, in favour of the UN.16
1991 Protocol on Environmental Protection Instead, the 1991 Protocol on Environmental Protection was agreed with “remarkable speed”17 and entered into force on 14 January 1998. By 2008, 33 states had approved the
15 GA Resolution 43/83 16 Lee Kimball, ‘Environmental law and Policy in Antarctica’, in Greening International Law, ed. Phillipe Sands, 1993, pp134-5 17 Ibid
9 Protocol, which “effectively marked the end of the limited mining approach” embodied in the CRAMRA.18
The 1991 Protocol designates the Antarctic Treaty Area as “a natural reserve, devoted to peace and science”, and provides a framework for the “comprehensive protection of the Antarctic environment and dependent and associated ecosystems”.
Crucially, Articles 7 and 25 impose a 50-year moratorium on all mineral exploitation (mining and drilling) in Antarctica. This can be lifted only if all the Consultative and non-Consultative parties to the Atlantic Treaty agree a binding legal regime on Antarctic mineral resource activities that includes an agreed means for determining whether (and, if so, under which conditions) any such activities would be acceptable.
After 50 years, a proposal to lift the ban will need a simple of majority of all (Consultative and non-Consultative) parties, with the proviso that three quarters of the states that were Consultative parties at the time of adoption of the 1991 Protocol must agree.
Despite the 1991 Protocol's 50-year moratorium, the expected increase in world demand for energy may expose Antarctica to countries and markets looking for alternative petroleum supplies. If Antarctica is indeed eventually opened for oil exploration activities, which many believe it will be, the potential for oil pollution occurrences such as oil tanker spills, the dumping of waste oil, natural oil seeps and well blowouts will rise substantially.19
The Protocol also establishes a Committee for Environmental Protection, and sets out detailed mandatory rules in six Annexes concerning:
• environmental impact assessment; • conservation of Antarctic flora and fauna; • waste disposal and waste management; • prevention of marine pollution; • extended protection and management of designated areas; and • liability arising from environmental emergencies (this sixth annex is not yet in force).
It provides for inspections, and requires each Party to establish contingency plans for environmental emergencies and report annually. The Protocol also makes arrangements for compulsory, binding dispute-settlement. Thus it substantially strengthens the binding nature of provision on conservation and environmental protection in Antarctica.
UK ratification of the 1991 Protocol and the Liability Annex The UK was the first country to sign the 1991 Protocol. It ratified it following the Antarctica Act 1994, which made provision in UK law for ratifying the Protocol and extended the application of UK criminal law to UK nationals in Antarctica.
The 1994 Act requires anyone remaining in Antarctica on a British expedition, station, vessel or aircraft to have a permit. All mineral resource activities by UK nationals are prohibited unless under a permit for scientific research or in connection with construction, repair or maintenance of a British station or transport infrastructure. Killing, injuring or capturing any native animal or bird is also prohibited, as is significant damage to native plants and the introduction of non-native species without a permit. Entering restricted areas established by
18 Malcolm N. Shaw, International Law, 5th edition, 2003, pp458-9 19 US Energy Information Administration, Antarctica: Fact sheet, September 2000
10 the Protocol is unlawful without either a permit or the written authorisation of another contracting party. These offences may be prosecuted as if they had been committed in the UK.
The 1994 Act also repealed the Antarctic Minerals Act 1989 which had contained measures to implement the CRAMRA.
The 1994 Act does not cover Annex VI to the Protocol, on liability for environmental emergencies. This ‘liability annex’ was agreed in 2005, after the UK had ratified the rest of the Protocol, and will come into force once approved by all Consultative Parties. It requires organisers of Antarctic expeditions (including scientists and tour operators) to insure themselves against the risk of environmental damage and to make appropriate responses in an environmental emergency.
The UK intends to ratify the liability annex. It consulted on a draft Antarctic Bill20 in 2009-10 which would have made the necessary changes, but no Bill appeared in Parliament until Neil Carmichael’s Antarctic Bill 2012-13, which is due to have its second reading debate in the House of Commons on 2 November 2012. This Bill would incorporate the liability Annex into UK law (including new criminal offences and financial liability provisions). It would also make some other small changes, including applying existing offences to non-British nationals on British expeditions. There is further information in a Library Standard Note on The Antarctic Bill.21
4 Law of the Sea and claims to the continental shelf 4.1 Introduction The Antarctic Treaty covers the area south of 60º latitude, including ice-shelves, but Article VI states that it does not affect the rights of states under the international law on the high sea within that area. Otherwise, the Treaty’s relationship with the law of the sea (as embodied in the 1982 UN Convention on the Law of the Sea (UNCLOS)) is not explicit. This has given rise to many important questions, primary among which is whether recognised zones of maritime jurisdiction under UNCLOS (which include exploitation rights) apply to the Antarctic despite the restraints of the Antarctic Treaty system.22
4.2 1982 UN Convention on the Law of the Sea UNCLOS covers a wide range of issues relating to the world’s oceans, including the rights over the sea-bed as well as fishing, navigation and shipping. It brought together traditional rules for the uses of the oceans and new legal concepts and regimes, as well as providing the framework for further development of specific areas of the law of the sea. It entered into force in 1994, and has now been ratified by 162 countries23 (the USA is amongst countries that have not ratified it).
The different areas of sea and the rights of states over them set out in UNCLOS can be summarised as follows:24
20 Command Paper 7635 21 SN6388, 18 July 2012 22 For a full discussion of this issue, see Christopher C. Joyner, Antarctica and the law of the sea, 1992 23 UN Treaty database (as at 14 July 2012) 24 See Antonio Cassesse, International Law, 2nd edition (2005) pp84-94
11 • Internal waters. Inland rivers and lakes but also sea waters within the baselines from which the breadth of the territorial sea is measured. Subject to the full and exclusive sovereignty of the coastal state. No right of passage for foreign vessels without permission.
• Territorial sea. The waters surrounding a state’s territory and including its bays, gulfs and straits, up to 12 nautical miles from the baselines (which are usually taken as the low-water line, but there are special rules for bays, inlets and islands). Coastal states have full sovereignty over the territorial sea (plus airspace, seabed and subsoil) subject to the right of innocent passage of foreign merchants’ ships and warships.
• Contiguous zone. Extends for up to 24 nautical miles from the baselines. The coastal state may prevent and punish infringements of its customs, fiscal, immigration or sanitary regulations.
• Exclusive economic zone (EEZ). Extends for up to 200 nautical miles from the baselines. The coastal state has sovereign rights for specific matters: exploring, exploiting, conserving and managing living and non-living natural resources; and extensive powers of enforcement. It may not prevent other states from exercising rights of navigation and overflight, or the right to lay cables and pipelines. Land-locked and geographically disadvantaged states have the right to participate on an equitable basis in exploitation of an appropriate part of the surplus of the living resources of the EEZs of coastal states of the same region or sub-region; highly migratory species of fish and marine mammals are accorded special protection.
• Continental shelf. Either 200 nautical miles from the baseline, or the seabed and subsoil of the natural prolongation of a coastal state’s land territory into the sea to the outer edge of the continental margin, whichever is the further. States wishing to assert rights over the continental shelf between 200 and 350 nautical miles beyond their coastlines can demonstrate the prolongation of an adjoining continental shelf according to various complex formulas, including tracing the 2,500-metre submarine contour, establishing the foot of the continental shelf and measuring the thickness of sedimentary rocks. The coastal state has sovereign rights to explore and exploit the natural resources of the continental shelf. Coastal states must share with the international community part of the revenue derived from exploiting resources from any part of their shelf beyond 200 nautical miles.
• High seas. All parts of the sea that are not included in the internal waters, territorial sea or EEZ of a state. The high seas are open to all states for navigation, overflight, laying of cables and pipelines, fishing and scientific research.
The status of all these zones (other than the high seas) under international law depends on the status of the coastal state’s adjacent land.
In the case of Antarctica, whether any coastal state actually exists is “subject to considerable conjecture”.25 If there is no recognised sovereign state, the logical assumption is that there can be no zones of offshore jurisdiction, which would mean that the high seas extend up to the edge of the land. The Antarctic Treaty System, whilst clearly accepting that the law of the sea applies to the waters around the continent, says nothing about zones of offshore
25 Christopher C. Joyner, Antarctica and the law of the sea, 1992, p75
12 jurisdiction. This leaves “fundamental questions… on which aspects of contemporary ocean law are relevant to the Antarctic and what maritime rights and duties are applicable to which states over what parts of the region”.26 UNCLOS did little to resolve the issue, and may even have produced further ambiguities.
4.3 Extended continental shelf claims The UN Commission on the Limits of the Continental Shelf (CLCS) was established to mediate between the legal and the scientific aspects of the UNCLOS provisions on the continental shelf. Its role is to verify the outer limits of the continental shelf beyond 200 nautical miles proposed by states on the basis of the formula contained in UNCLOS, and to provide appropriate scientific and technical advice to states if requested.
The CLCS does not resolve territorial disputes between states: if a dispute exists, it will not consider a submission unless prior consent is given by all states concerned.27 Disputes over extent between opposite or adjacent states may instead be resolved through two alternative procedures: the principle of equidistance from the nearest points of the respective baselines28 or “by agreement in accordance with equitable principles”.29 Any disputes relating to UNCLOS can be submitted to the International Tribunal for the Law of the Sea (ITLOS) established under UNCLOS,30 to the International Court of Justice, or to arbitration. Conciliation is also available and, in certain circumstances, submission to it would be compulsory.
According to UNCLOS Annex II Article 4, a coastal state must submit its proposal for establishment of its continental shelf beyond 200 nautical miles to the CLCS within 10 years of UNCLOS entering into force for that state. For the countries that initially ratified UNCLOS, including the UK, the deadline for presenting submissions to the CLCS expired on 13 May 2009.31
Once the coastal state has established the limit of its continental shelf in accordance with the recommendations of the CLCS, that limit is final and binding (Article 76(8)).
4.4 Claims in the Antarctic Despite the uncertainties surrounding the application of UNCLOS and its rules on the continental shelf to Antarctica, a number of states with claims to territory in the Antarctic have submitted or considered submitting claims to an extended Antarctic continental shelf.
Of the seven Antarctic claimant states, only Australia and Argentina have actually submitted a claim to CLCS regarding the Antarctic. According to the FCO:
In Antarctica, the right to an extended continental shelf under the UN Law of the Sea has to be considered against the provisions of the Antarctic Treaty, which put all territorial claims in abeyance. Of the seven Claimant States in Antarctica, Australia made a submission to the UN Commission for the Limits of Continental Shelf in respect
26 Ibid 27 CLCS Rules of Procedure, CLCS/3/Rev.2, 4 September 1998, Annex I 28 1958 Convention on the Continental Shelf, Article 6 29 North Sea Continental Shelf Case, ICJ, 20 February 1969, ICJ Reports 1969, 4-54, at 53 30 UNCLOS Part XV and Annex VI 31 This date is ten years after the date of adoption of the CLCS’s Guidelines, as agreed by the Meeting of States Parties to UNCLOS, Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea, 29 May 2001
13 of the Australian Antarctic Territory in 2004. Australia submitted full co-ordinates of its continental shelf margin, but asked that the CLCS simply store the data and not consider it (because of the Antarctic Treaty). In 2006, New Zealand notified the CLCS that it was not submitting data for the continental shelf around its Ross Dependency in Antarctica, but that it reserved the right to do so in the future. The UK followed the New Zealand model in May 2008. The UK expects that the remaining Claimant States will also follow one of these two approaches.32
The Guardian newspaper reported in October 2007 that the UK had asked the CLCS to approve its claim to 1 million square kilometres of Antarctic seabed “in defiance of the spirit of the 1959 Antarctic Treaty”.33 The Southern Ocean surrounding Antarctica is described by British Antarctic Survey as “highly relevant politically, socially and economically to the UK”. It cools 40% of the world’s oceans and regulates regional and global climate; it contains the planet’s largest unexploited marine protein resource; and it has unique ecosystems and exceptional biodiversity.34
The report prompted comments from a professor of geography and from a professor of law:
It is important that the media and other commentators retain a sense of perspective regarding Britain's Antarctic interests (Britain to claim more than 1m sq km of Antarctica, October 17). In submitting materials to the UN commission for the delimitation of the continental shelf, the UK government is merely taking advantage of a period of time to submit such claims (ie within 10 years of the law of the sea convention being ratified by the UK).
The problem with this submission is not that it is illegal or evidence of an unprincipled seabed grab; it is rather that rival claimants may be provoked to raise their campaign to challenge British claims not only in the Antarctic but also in the Falklands and South Georgia. It will confirm what many Argentine nationalists have long suspected: that Britain came to the rescue of Falkland Islanders in 1982 because it was determined to secure long-term strategic and resource-based interests in the South Atlantic and Antarctic. More widely, other countries, especially in the third world, will look upon this development as further evidence of a select group of countries attempting to colonise the Antarctic and the Southern Ocean for their benefit rather than the international community.
This move does unquestionably challenge the spirit of the 1959 Antarctic treaty and remind us that one of the problems facing those who seek to protect Antarctica from commerical development is that a number of overlapping legal regimes and treaties run contrary to an agreement secured 50 years ago.
Professor Klaus Dodds Department of geography, Royal Holloway, University of London
Your leader (October 18) on Britain's Antarctic continental shelf claim is tilting at windmills. The 1982 UN convention on the law of the sea requires all coastal states to notify the UN of the outer limits of their continental shelves, and the UN deadline for depositing the necessary information is fast approaching. Defining the outer limits of the shelf changes nothing and confers no new rights on anyone. It does not violate or threaten the future of the Antarctic treaty, under which the continent is preserved for scientific research. Moreover, extraction of oil, gas and minerals on the Antarctic
32 Foreign and Commonwealth Office, The Continental Shelf and the UN process, 8 April 2009 33 ‘Britain to claim more than 1m sq km of Antarctica’, Guardian 17 October 2007 34 House of Commons Science and Technology Committee, Investigating the Oceans, 10th Report of 2006–07, HC 470, October 2007, para 206
14 continental shelf is prohibited by a protocol to the treaty, so states with territorial claims can gain no economic advantage from their rights over the continental shelf.
Only states with territorial claims have the necessary legal jurisdiction to police activities in and around Antarctica, including illegal fishing - presently a serious problem. Your solution of declining to exercise territorial jurisdiction would leave the shelf open for exploitation by commercial enterprises from the many states that are not participants in the treaty. Nothing in the claim suggests government policy on the protection of Antarctica has changed. On the contrary, we are reinforcing our ability to enforce our commitments under the treaty.
Professor Alan Boyle School of law, University of Edinburgh35
In fact, the UK did not make a claim. Instead it notified the CLCS that it was not submitting data for the continental shelf around the British Antarctic Territory but that it reserved the right to do so in the future.
Nevertheless, as foreseen, Argentina's foreign minister responded by warning that the UK will be challenged over any claim to parts of the southern Atlantic seabed, and that his country would apply for sovereignty over the ocean floor around the Falkland Islands and Antarctica.36 On 21 April 2009 Argentina submitted its claim over a sector of the Antarctic (and The Falklands, South Georgia and the South Sandwich Islands) to the CLCS. This prompted the UK and other countries to state that in the light of the Antarctic Treaty they did not recognise Argentina’s claim to territory in Antarctica.37
The Antarctic claimants could make a joint submission to the CLCS,38 seeking confirmation of the extent of the continental shelf under UNCLOS without considering the boundaries between them or (presumably) the status of their claims to Antarctic territory. Alexandre Albuquerque, a Brazilian who chaired the CLCS until his death in 2012, reportedly said that it “would be comfortable to the commission if Antarctic claimants got together and made a joint submission”.39 This technique is being used for a submission by the UK relating to disputed territory in the Bay of Biscay.40 However, with that joint submission the CLCS appears to be requiring each jointly-submitting state to show independently what part of the area claimed would have been theirs if they had submitted an individual claim. This would negate the advantage for states of making joint submissions.41
No submission to the CLCS, whether single or joint, would resolve the primary issue of sovereignty over the Antarctic.
35 ‘Icy imperialism or reinforcement of the Antarctic treaty?’ Letters to the Guardian, 19 October 2007 36 ‘Argentina ready to challenge Britain's Antarctic claims’, Guardian 19 October 2007 37 United Kingdom Mission to the United Nations, Note No. 84/09, 6 August 2009 38 CLCS Rules of Procedure, CLCS/3/Rev.2, 4 September 1998, Annex I para. 4 39 ‘Antarctica: the next North Pole?’, International Herald Tribune 1 Feburary 2008 40 Joint submission by France, Ireland, Spain and the United Kingdom of Great Britain and Northern Ireland, 2006 41 Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work of the Commission, UN doc CLCS/56, 4 October 2007, p6
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