Introduction

Although it is so remote, the Antarctic is a significant region amounting to nearly a tenth of the land surface of our planet and a tenth of the world's ocean. Formerly the keystone of the southern supercontinent Gondwana, it is now isolated from the other continents by a wide deep ocean, and all but 1% of the land surface is covered by ice, over 4 km deep in places, a result of its polar position, which makes it the highest and coldest continent. The relative positions of the south geographic and geomagnetic poles have implications for geophysical studies. It has importance for meteorological and climatic studies, having a world-wide influence due to the fact that it is the strongest cooling centre of the global system. Being without an indigenous human population, Antarctica is still relatively unaffected by human activities. As such it can serve as a baseline for studies on global pollution of various kinds and the clear atmosphere confers advantages for certain research. A range of biological problems can be studied better there than anywhere else. A further advantage is the unique political situation and the absence of national boundaries under the Antarctic Treaty which allows large-scale international cooperation in science. However, because of the high costs of supporting research in such a remote and rigorous environment, there need to be very good reasons for conducting research there, rather than elsewhere. At the same time, the dependence of scientists on a common provision of logistic support tends to encourage interdisciplinary programmes.

It is easy to forget today that conservation is a relatively new concept in western society and that in many other parts of the world it has still to make an impact. When the Antarctic Treaty was negotiated in the late 1950s conservation was not one of the pressing issues to be included in it. It was not until the Third Antarctic Treaty Consultative Meeting (ATCM) in 1964 that a set of rules directed towards environmental protection, the Agreed Measures for the Conservation of Antarctic Fauna and Flora, was drawn up.

The Agreed Measures form a rather simple practical code of conduct having four main articles:

1. i) it is forbidden to kill, wound or capture any native mammal or bird;

2. ii) harmful interference with the normal living conditions of native and birds must be minimised and pollution of coastal avoided;

3. iii) Specially Protected Areas may be designated where unique or outstandingly interesting species or ecological systems can be preserved; and finally,

4. iv) the introduction of non-indigenous species is banned.

More than 20 years later, most practising conservation managers would see the Agreed Measures as being rather naively drawn, and indeed, in retrospect, it would have been helpful if there had been a more effective input at the drafting stage from people with practical experience of environmental protection.

The Agreed Measures were extended by other recommendations made at subsequent ATCMs, notably at the Seventh, when the concept of the establishment of Sites of Special Scientific Interest (SSSI) was introduced.

It has become common practice for informed commentators upon Antarctic Treaty Party negotiations for a minerals regime to deny the economic viability and technological feasibility of exploitation of Antarctic minerals. It is also customary for them to adopt a conservative stance when detailing the extent of mineral deposits and when making geological comparisons between the Antarctic continent and shelf and other resourcerich landmasses. The need to tell so cautionary a tale has been prompted by extravagant assertions of a minerals boom in Antarctica and by fears of an international scramble to share in the benefits of exploitation. It remains, nonetheless, difficult for interest groups outside the Antarctic Treaty system, most particularly conservationists, to accept these assurances when minerals negotiations are proceeding. Do these commentators protest too much? Why is it necessary to negotiate a minerals regime if exploration and exploitation are so unlikely? Surely the negotiation of a legal structure to manage resource exploitation implies acceptance by the Antarctic Treaty system of minerals exploitation? Will the existence of a regulatory mechanism encourage mineral exploitation and create a presumption in favour of exploitation?

Each of these questions was discussed at the British Institute's Conference. These questions pose the dilemma for international lawyers, government negotiators and interest groups as to the most appropriate stage at which to plan measures in advance of needs and problems. Indeed, it has been a signal feature of CCAMLR that it was negotiated well before irreparable damage to stocks was inflicted by over-fishing. It may be perfectly reasonable to initiate negotiations to regulate minerals exploitation in an atmosphere in which exploitation is a distant possibility.

Introduction

The title of this chapter appears to imply that Antarctic resources must be developed. This is by no means a unanimous view. Many people regard preservation of the present regime of peaceful scientific cooperation on the vast continent south of latitude 60° S as of so high a priority, and prospects of worthwhile development of new resources there (especially mineral resources) as so remote, that they are willing to forego all proposals for development in order to preserve the gains that have been made under the Antarctic Treaty. Linked with this view, is a feeling that the Antarctic Treaty is a fragile instrument, liable to crack under the strain of competitive commercial pressure.

Although, like most people who have worked in the Antarctic, I would number myself among those who would prefer not to see any part of its magnificent environment disrupted by mining or by the construction of associated bases, for the purposes of this chapter I am going to assume that mineral resource development and, indeed, the continued development of other living and non-living environmental resources of the region, remain possibilities. I believe this is a realistic assumption, given that the Antarctic Treaty Consultative Parties have already agreed upon a series of measures to conserve the resources and environment of the region and to regulate activities that might damage it, and are currently engaged in discussions about the content of a regime to control mineral exploration and exploitation.

Antarctica of today is a continent of peace and cooperation. Eighteen countries with diverse political and economic systems successfully cooperate in managing all matters concerning the southern continent. A further 14 have expressed their political belief in the Antarctic Treaty system by adhering to the Antarctic Treaty. The last few years have seen an important increase in the number of new member states.

When one considers the potential for conflict in the Antarctic the situation of today is quite remarkable. In spite of widely differing conceptions as to territorial sovereignty, and undaunted by fluctuations in the global political climate over the last 25 years, the Antarctic Treaty Consultative Parties have unfailingly pursued the high goals set by themselves in the Antarctic Treaty. As will be seen from my following remarks, the achievements by the Consultative Parties in preserving the Antarctic from political and juridical strife are both considerable and, in their consequence, of benefit to all mankind.

In order to assess the political and legal facts in Antarctica today, it is necessary briefly to look back in time to the beginning of this century. I shall not endeavour to go into the details of the grand days of the Antarctic explorers of earlier times. It is of importance to keep in mind, however, that human enterprise has been significant on and around the southern continent for a very long time.

During the twentieth century, exploratory, scientific and commercial expeditions were carried out in the Antarctic by a number of countries. Seven of these countries – the United Kingdom, New Zealand, France, Norway, Australia, Chile and Argentina – made formal territorial claims to parts of Antarctica between 1908 and 1942.

An objective of the British Institute's conference, Whither Antarctica?, was to consider the future of Antarctic management. The following three papers, each of which recognises that the Antarctic Treaty Parties must make accommodation to external or outside interests, provide a stimulus for some new thinking about Antarctic regulation. With the successful negotiation of the 1982 Convention on Law of the Sea, some states have attempted to transfer the concept of common heritage of mankind to Antarctica. The assertion that Antarctica is the common heritage of mankind is, as yet, little more than a political aspiration. It has little legal content in so far as it is applied in Antarctica and it gives rise to confusion as to its consequences. Zain-Azraai moves beyond rhetoric by presenting the moral and legal bases for wider international participation in decision-making for Antarctica. He explains the dilemma of non-Treaty states which have the opportunity of joining the Antarctic Treaty System. To join is to imply that reform is possible from within the system while some non-Treaty Parties believe that radical changes can be achieved only through a wider international forum. J. A. Heap recognises that the Antarctic Treaty system is, in principle, no more or less effective than other international agreements. However, his experiences in Antarctic management have convinced him of the international ‘fact of life’ that a wider universal regime will represent the lowest common denominator and that regulations will be honoured in the breach rather than in observance.

Antarctica is unique in its isolated location (990 km from the southern tip of South America), size (one-tenth of the surface of the globe), permanent ice-cap (covering 98% of the continent) with consequent extremes of climate, and absence of permanent human habitation. Do such unique characteristics, stressed by the explorers and scientists who know the region, make law unnecessary? Regulation is required where a people grows in number beyond family and tribal constraint and exchange and communication with other groups of people take place. With the few thousand scientists at present in Antarctica and their logistic support, provided in part by personnel of the armed forces – both disciplined groups under their home state laws – there is at the present time, apart from some conservation and communication measures, little need for the apparatus of legislation, courts and law enforcement as it exists in the modern state.

What relevance, then, has Antarctica for the lawyer? Probably little, at the present time, for the practitioner in one particular national system. Material for the comparative lawyer and private international lawyer is equally scanty.

But, if the absence of an indigenous population dispenses with the need for laws to preserve internal order, the size of Antarctica and its untapped resources in an international community increasingly aware of its finite limits, has produced a conflict of interests between states. The reconciliation and regulation of such conflict of interests falls squarely in the field of the public international lawyer. Antarctica, therefore, and the legal issues which it has presented, ever since its explorers received state backing, is of direct relevance to the international lawyer.

Introduction

In the Antarctic the living resources offer a complete contrast between marine and terrestial systems. The Southern Ocean is rich with life – among which krill, whales, seals and penguins are the best known; historically, man's visits to the Antarctic have been largely those of sealers, whalers and fishermen engaged in harvesting these resources. The management problems are those of ensuring that this harvesting is carried out in a rational manner, with due regard to future interests in the resources. The Antarctic land mass is cold and barren and extremely hostile to life. What life there is, is probably vulnerable to disturbance through man's other activities, such as research, tourism, or, possibly in the future, extraction of minerals. The management problem is that of diminishing or minimising that disturbance.

The management problems of sea and land are therefore best discussed separately. The exception is the needs of seals and penguins for a firm base (land, or ice-shelves) on which to breed. These essentially marine animals can be vulnerable to damage to, or disturbance at, these breeding sites, and mechanisms to prevent this are best discussed together with other aspects of terrestrial management.

While the Antarctic Treaty applies to the seas south of 60° S, in considering the marine resources it is better to look at the whole area south of the Antarctic Convergence. The exact position of the Convergence is variable, but on average corresponds closely to the boundary of the area of responsibility of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR).

While seven states claim territorial sovereignty over all but a small wedge of the continent, other states, particularly those most active in the area, have refused to recognise these claims. The difficulties raised by conflicting juridical positions on Antarctic sovereignty have persistently retarded negotiations concerning Antarctic resource and environmental regulation. Indeed, the Antarctic Treaty and related Conventions and Recommendations are incomprehensible in the absence of some understanding of the legal positions of claimant and non-claiming Parties on the question of territorial sovereignty.

Despite the diametrically opposed arguments of states claiming territorial sovereignty in Antarctica and those denying it, and despite the complicating contentions of those states which deny existing claims but reserve their own rights to make claims in the future, legal and diplomatic techniques have succeeded in avoiding direct conflict over sovereignty. The debates in the First Committee of the General Assembly in 1984 demonstrate that most states, regardless of their ideological perspective, accept that the Antarctic Treaty regime has been a remarkably successful mechanism through which universal interests in preservation of the Antarctic environment, non-militarisation of the area, prohibition of nuclear explosions and radioactive waste disposal and free scientific access have been protected and advanced.

The precise claims to sovereignty which are made and the legal principles upon which they are based have been amply and frequently described. These claims are justly criticised as inappropriate principles for the determination today of territorial sovereignty in Antarctica. The fact remains, however, that claimant states continue to parade a conglomerate of asserted classical theories in support of their territorial acquisitions – geographical contiguity, discovery, acquiescence, recognition, spheres of influence, effective occupation or manifestations of sovereign activities.

The Antarctic is unique in so many respects that is difficult to avoid superlatives in any description. Flying up the Beardmore Glacier from the New Zealand headquarters in McMurdo Sound at Scott Base in a US Navy Hercules Cl 301 was struck by the marvellous beauty of the Antarctic and yet its innate harshness. Landing at the South Pole under the midnight sun and spending a brief few hours at the American base one at once realises how different it all is to the rest of the world, including even north polar regions. While the North Pole is situated on sea ice over an ocean 3000 m deep, the South Pole is in the middle of a plateau of ice of similar depth, stretching as it seems endlessly in all directions.

There are great mountains distant from the Pole, and amongst those nearer the coast are impressive dry valleys and canyons, empty even of snow and sometimes with a small lake which very occasionally thaws. At the New Zealand base at Lake Vanda the temperature at the bottom of the lake is –25 °C. Nearby there is a small strip of brown moss close to the glaciers. In the few ice-free areas have been found not only coal deposits, but also traces of minerals which could be of economic interest. It will be many years, if ever, before these will be exploited, though it is perhaps otherwise with the potential hydrocarbon fields under the Antarctic seas, not to mention the enormous stocks of fish, squid and krill in the ocean south of the Antarctic Convergence.

The four-way veto

Just as all roads lead to Rome so all agreements, recommendations and practices within the Antarctic Treaty system are referrable to and are explained by differing juridical positions on sovereignty. Four groups of state interests can be identified which adopt significantly different legal perspectives on the question of Antarctic sovereignty:

1. – Antarctic Treaty states which claim territorial sovereignty in Antarctica;

2. – Antarctic Treaty Parties which deny, or do not recognise, claims to territorial sovereignty and which make no claim of their own;

3. – Antarctic Treaty Parties which do not recognise any claim to Antarctic sovereignty but which reserve their own rights to make a claim in the future;

4. – states which are not party to the Antarctic Treaty regime but which deny claims to sovereignty on the ground that Antarctica is, or should become, part of the common heritage of mankind.

Each group of states has the political and legal power to protect its interests in a manner which has been described by Australia's Ambassador Brennan as a four-way veto. It is this power of veto which must be defused or avoided both within the treaty system, the negotiations for a minerals regime and the United Nations itself if the Antarctic Treaty regime is to survive.

The claimant states

Seven states claim territorial sovereignty in Antarctica: the United Kingdom, in 1908; New Zealand, in 1923; France, in 1924; Australia, in 1933; Norway, in 1939; Chile, in 1940 and Argentina, in 1942. The claims of Argentina, Chile and the United Kingdom overlap.

I have had some connection with several Antarctic Treaty Consultative Meetings, but none with Australian government policy since 1983. Also, the topic I have been assigned is ‘a third strategy’ – which I have amended to ‘alternative strategies’ – and I am focusing on that brief. So what I shall write in no way reflects any official Australian position; indeed a good deal may depart from it.

Hegel pointed out the difference between sollen and sein, between the world as it ought to be and the world as it is in hard reality. The distinction applies forcibly to the case of Antarctica. There are many views about what ought to happen there: what will happen there in fact will be shaped by the interplay of pressures and interests expressed in the policies of governments – with the international conservation movement, in particular, as chorus. It is likely to work itself out over an extended period, and both process and outcome are really impossible to predict.

If I had to make a prediction, my first point would be that the Treaty partners, if they continue to stick together as effectively as they have done so far, and given their considerable recent accretion of membership, are a formidable group. The Treaty has on occasion been described as a house of cards, which could rapidly collapse under pressure.

Introduction

The more important current activities in the Antarctic are:

1. i) scientific research (that is scientific observation and measurement);

2. ii) science logistics (ships, aircraft and stations and their respective activities necessary for the pursuit of scientific research in Antarctica);

3. iii) tourism (activities of all those whose primary purpose in being in Antarctica, whether they paid for the privilege or not, is aesthetic enjoyment); and

4. iv) fishing exploitation of any Antarctic marine living resources.

Among possible future activities are:

1. i) exploration for Antarctic mineral resources and their possible exploitation; and

2. ii) the removal of ice in the form of icebergs to provide water in areas of the world where there is not enough.

One of the primary purposes of the Antarctic Treaty states is to ensure that ‘Antarctica shall be used exclusively for peaceful purposes’ and that it ‘shall not become the scene or object of international discordrsquo;. In order to secure the first of these objectives, the Treaty provides for the demilitarisation of the Antarctic, for the provision of information about national activities in Antarctica and for international inspection of national activities to ensure that the uses to which Antarctica is being put are exclusively peaceful. These provisions of the Treaty have proved effective. Inspections have been carried out and no activities have been found which are inconsistent with the principles and purposes of the Treaty. None of the current problems in Antarctica arise out of conflict between the inherent nature of the activities going on there and the provision for exclusively peaceful use.