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Fear and Loathing in the South Pole: the Need to Resolve the Antarctic Sovereignty Issue and a Framework for Doing It

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Fear and Loathing in the South Pole: the Need to Resolve the Antarctic Sovereignty Issue and a Framework for Doing It FEAR AND LOATHING IN THE SOUTH POLE: THE NEED TO RESOLVE THE ANTARCTIC SOVEREIGNTY ISSUE AND A FRAMEWORK FOR DOING IT “Great God! This is an awful place.” - Captain Robert Scott, 19121 I. INTRODUCTION Antarctica is a continent on the brink. The constant political instability of oil- rich nations, coupled with an increasing global petroleum demand, is fueling the likelihood that the world will turn its thirsty eyes towards this great unexplored frontier in search of natural energy resources. Mineral exploration in Antarctica, however, has been effectively barred since 1959 under the Antarctic Treaty System (“ATS”),2 which, in its current form, prohibits mineral exploration as far into the future as 2048.3 The strategic potential presented by this vastly unpopulated continent has not gone unrecognized by the major global political players. To add further strain to this inherently tense environment, seven nation states have publicly expressed sovereignty claims to some part of the continent, with the United States and Russia reserving a right to assert such a claim in the future.4 The existing ATS amounts to an agreement to disagree on the issue of sovereignty between claimant states. History has shown that long-unsettled sovereignty disputes can boil over into full-scale military confrontations. Two examples illustrate the fallacy of simply “waiting out” competing claims. First, the Spratly Islands, a group of more than a hundred islands in the South China Sea5 that are believed to possess significant oil reserves, have been witness to armed conflicts between claimant states on at least four different occasions.6 Second, the longstanding Falkland Islands territorial dispute between Argentina and the United Kingdom boiled over into war in 1982, resulting in numerous casualties on both 1.PETER J. BECK, THE INTERNATIONAL POLITICS OF ANTARCTICA 14 (1986). 2. The ATS is comprised of the Antarctic Treaty of 1959 and the Madrid Protocol of 1991. See infra III.A. and III.B. (describing the development of the ATS and other related international agreements). 3. Protocol on Environmental Protection to the Antarctic Treaty art. 1, Oct. 4, 1991, S. TREATY DOC. NO. 102-22, 30 I.L.M 1455 [hereinafter Madrid Protocol]. 4. The seven nation states consist of Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. The United States expressly does not recognize the sovereignty of any government on the continent and both the United States and Russia have reserved the right to make future claims over territory. BECK, supra note 1, at 119-25. 5. CIA World Factbook, Spratly Islands, https://www.cia.gov/library/publications/the- world-factbook/geos/pg.html (last visited Mar. 24, 2008). 6. Jeffrey Robertson, China's Power Hunger Trumps Japan Diplomacy, ASIATIMES (H.K.), Nov. 2, 2004, available at http://www.atimes.com/atimes/China/FK02Ad01.html (explaining that Chinese disputes with Vietnam over the Spratly Islands have resulted in armed conflict on no less than four occasions). 213 214 TEMPLE INT’L & COMP. L.J. [22.1 sides.7 The time to decide on claims of sovereignty is now, before these powerful nations are tempted to resort to military means. Otherwise, the fundamental principle espoused by the drafters of the initial agreement—that “Antarctica shall be used for peaceful purposes only”8—will be jeopardized. The purpose of this Comment is two-fold: first, to put forth an argument as to why nothing short of a determination of Antarctica’s sovereignty can resolve the minerals exploitation issue; and second, to provide a framework for resolving the conflicting overlapping claims of the United Kingdom, Argentina, and Chile. Part II of this Comment provides the contextual background behind the issues of a mineral regime and sovereignty in Antarctica. Part III describes the purpose and scope of the existing multinational agreements directly governing Antarctica, as well as other important agreements affecting the continent. Part IV sets forth reasons why this existing system is wholly inadequate to accommodate a sustainable minerals exploitation regime. Part V describes the competing claims on the Antarctic Peninsula by Argentina, Chile, and the United Kingdom, and serves to illustrate the various types of claims over the rest of the continent. Part VI provides a potential resolution, as developed from existing international law, to the territorial sovereignty disputes in the Antarctic Peninsula and explains why the United Kingdom has the strongest claim over the Peninsula. II. THE PROSPECT OF OIL EXPLORATION IN ANTARCTICA A. Antarctica’s Geography An appreciation of Antarctica’s extreme elements and singular geography is essential to understanding the issues that surround the development of an Antarctic mineral exploitation regime and the determination of sovereignty. If hell were to freeze over, it would resemble Antarctica. Although the average temperature of Antarctica is difficult to determine because of its variable geography, the only part of the continent to experience temperatures above freezing is the northern portion of the Antarctic Peninsula and, even then, only in the summer months.9 Visitors wishing to “beat the heat” of the Peninsula can head south to seek refuge in the continent’s interior, which has seen temperatures reach minus 89.6 degrees Celsius and wind speeds of 215.65 kilometers per hour, making it both the coldest and windiest landmass on Earth.10 7. Joseph S. Roucek, The Geopolitics of the Antarctic: The Land Is Free for Scientific Work but Its Wealth of Minerals Has Excited Imperialist Claims, 45 AM. J. ECON. & SOC. 69, 75 (1986). 8. Antarctic Treaty art. I, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71. 9.F.M. AUBURN, ANTARCTIC LAW AND POLITICS 2 (1982). 10.BECK, supra note 1, at 10. By way of comparison, the temperature of “dry ice” is only 78.5 degrees Celsius. T 2008] FEAR AND LOATHING IN THE SOUTH POLE 215 The Antarctic, unlike the Arctic, has an actual continental land mass underlying its immense ice sheet.11 The continental land mass measures approximately 14.2 million square kilometers (5.5 million square miles), roughly ten percent of Earth’s land surface.12 Antarctica’s surface area is greater than the combined surface area of the United States and Mexico.13 Ninety-five to ninety- eight percent of this area is covered year-round by an ice sheet with an average thickness of 2,450 meters (1.52 miles), and which exceeds 4,500 meters (2.79 miles) in some places.14 This ice sheet represents approximately seventy percent of all the fresh water on Earth.15 The sheer weight of it has pushed the bedrock surface down toward the Earth’s core as much as 800 meters in some places, and is believed to be responsible for the abnormal depth of water over the continental shelves, approximately four times the world average.16 If the ice sheet were to melt it is believed that “the surface of the world’s oceans would rise an estimated 200 feet, flooding many major cities and inhabited coastal areas.”17 Extending beyond the continental ice sheet are permanent ice shelves that reach over the coastline into the ocean and are responsible for the production of massive fresh water icebergs.18 There are ten principal ice shelves, with the biggest being the Ross Ice Shelf, which has an “area of at least 325,000 sq. km. (though estimates vary widely), is between 200 and 400 metres thick and projects approximately 30 metres above sea-level.”19 Meanwhile, underneath the ice shelves, water depths reach 1,300 meters.20 Surrounding the continent is a dynamic belt of sea ice that acts as a pulsating monster, ranging from 2.6 million square kilometers in the summer to 19.0 million square kilometers in the winter,21 and has proven to be a pelagic Venus flytrap to more than one trekker who overstayed his summer welcome.22 Until the twentieth century, both the physical obstacles 11.KEITH SUTER, ANTARCTICA: PRIVATE PROPERTY OR PUBLIC HERITAGE? 4 (1991). 12. Beck, supra note 1, at 8. 13. Id. 14. Id. at 9. 15.JACK CHILD, ANTARCTICA AND SOUTH AMERICAN GEOPOLITICS: FROZEN LEBENSRAUM 5 (1988) 16.BECK, supra note 1, at 9. 17.CHILD, supra note 15, at 5. 18. Some icebergs “may be 30-40 km long and up to 200 [meters] thick, although [ice]bergs of 400 km in length and over have been observed.” BECK, supra note 1, at 9. 19.AUBURN, supra note 9, at 32. 20.Id. 21.Id. at 1. 22. E.g., PHILIP W. QUIGG, A POLE APART: THE EMERGING ISSUE OF ANTARCTICA 20 (1983). (explaining that in 1897, the Belgian Belgica became trapped in the middle of the Bellingshausen Sea for nearly a year, during which time “[o]ne man died of heart failure, two went mad, and all suffered from anemia, lethargy, and acute depression or paranoia”); Russian Ship Rescue “Will Be Slow,” CNN, June 17, 2002, http://archives.cnn.com/2002/WORLD/africa/06/17/rescue.ship/index. (explaining that in 2002 a Russian ship, the Magdalena Oldendorff, along with its 107 passengers became trapped for weeks in the pack ice after making a wrong turn). 216 TEMPLE INT’L & COMP. L.J. [22.1 presented by the Antarctic ice and the belief that the continent provided little commercial benefit deterred sovereignty claims and attempts at large-scale exploitation of mineral resources on the continent.23 B. The Amount of Oil in Antarctica Over the last century, the notion of Antarctica’s providing commercial benefit to the world has grown with the belief that it may possess significant untapped oil reserves beneath its deep seabed. Estimates of the oil reserves in Antarctica are derived from a combination of geological theory and limited exploration.
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