Antarctic Treaty Papers
A Brief History of the Antarctic Treaty System
By Jack A. Bobo, Esq.
The Antarctic Treaty of 1959
The International Council of Scientific Unions organized an eighteen month program of scientific study in Antarctica, from July 1, 1957 until December 31, 1958, which was known as the International Geophysical Year. Although the decision by many countries to participate heavily in the IGY was more political than scientific, the result was significant cooperation among scientists of different nations.
Toward the end of the study period the Soviet Union announced that it would maintain the bases it had established as the basis of a sector claim. The continued dispute between the South American claimants and Great Britain, and the Soviet intent to maintain its bases made evident the need for an Antarctic accord. Consequently, the other IGY parties sought a more permanent solution to territorial claims. The result of the ensuing negotiations was the Antarctic Treaty of 1959.
The Antarctic Treaty was signed on December 1, 1959, by Argentina, Australia, Belgium, Chile, France, Great Britain, Japan, New Zealand, South Africa, the USSR and the United States of America. The Treaty applies to the area south of sixty degrees South latitude. The Treaty entered into force, after ratification by all signatories, on 23 June 1961.
Two major accomplishments of the Antarctic Treaty were to preserve Antarctica for peaceful purposes and to avoid a confrontation among the claimant states on the issue of territorial claims. To ensure compliance with the terms of the Treaty, the Parties provided for the inspection of "[a]ll areas of Antarctica, including all stations, installations and equipment within those areas." Although the Treaty does not present an ultimate resolution to the issue of sovereign claims, the Parties were able to agree to hold their claims in abeyance during the period the Treaty is in force.
While the Antarctic Treaty of 1959 does not contain any provisions for protection of the environment it did allow for the Parties to elaborate further agreements on such issues. The ability of the treaty to grow and provide for changing circumstances has been an important factor in its continued survival.
The Antarctic Treaty is open to accession by any United Nations member state or any other state invited to accede by the consent of all of the Antarctic Treaty Consultative Parties (ATCPs). Those nations acceding to the Antarctic Treaty can be divided into three categories: the original signatory Consultative Parties, Acceding Consultative Parties, and Non-Consultative Acceding Parties. Consultative Parties are entitled to send representatives to participate in and vote on issues at Antarctic Treaty Consultative Meetings (ATCMs). An acceding nation can only gain Consultative status after demonstrating an "interest in Antarctica by conducting substantial scientific research there, such as the establishment of a scientific station or the dispatch of a scientific expedition." Presently twenty-six nations have gained Consultative status in the Antarctic Treaty System. The advantage of states achieving ATCP status is the right to vote on matters concerning the ATS, such as Recommendations on environment.
Recommendations and Conventions
Although there were no provisions in the original treaty concerning protection of the environment, there have since been a number of Recommendations and Conventions adopted by the ATCPs to operate in conjunction with the Antarctic Treaty. Recommendations represent the most common form of regulatory device within the ATS framework. In practice Recommendations come in three forms, mandatory, hortatory, and internal (recommendations that only deal with the internal workings of the Treaty). The Agreed Measures on the Conservation of Antarctic Fauna and Flora are mandatory Recommendations, once implemented in domestic legislation they create binding obligations on the part of the signatory Party. In practice most Recommendations have been hortatory, states have not enacted with alacrity the necessary domestic legislation to bring the Recommendations into force. There is no administrative body to oversee implementation of these measures. In the absence of such an administrative framework there are inevitable problems of enforceability. The only methods of dispute resolution provided by the Antarctic Treaty are negotiation, arbitration, or, if all the parties to the dispute agree, adjudication by the International Court of Justice.
Following the adoption of the Agreed Measures were two other important conservation efforts: the Convention for the Conservation of Antarctic Seals and The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).
Representatives at the 1964 Antarctic Treaty Consultative Meeting (ATCM) adopted the Agreed Measures on the Conservation of Antarctic Fauna and Flora (Agreed Measures). The representatives were careful to keep the Agreed Measures within the bounds of the Antarctic Treaty Area. The Agreed Measures, adopted as annexes to Recommendations, attempt to protect the native plants and animals from human activities, in furtherance of the principles and goals of the Antarctic Treaty, such as the preservation of the continent for peaceful purposes and scientific investigation. Humans may not kill, capture, wound, or molest birds or mammals without a permit. The taking of plants is only restricted in Specially Protected Areas which represents a lower level of protection than that accorded to fauna. The prohibited activities do not extend to harm arising from the cumulative impact of repeated visits by humans. Pursuant to the Agreed Measures the Parties have also established Specially Protected Areas which may be entered only in accordance with a special permit and where even research activities are restricted.
The Antarctic Treaty Consultative Parties promulgated the Convention for the Conservation of Antarctic Seals in 1972. The Seals Convention is significant since it was promulgated as a preventive measure, rather than in response to a current threat to the species. The Antarctic seal population had been hunted to near extinction before commercial hunting ceased, but the fur seal populations has since increased. There was no commercial harvesting of seals in Antarctica at the time of the convention’s promulgation, only concern that it might start again; no harvesting has since developed.
In 1980, the Antarctic Treaty Parties promulgated the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). CCAMLR was in response to increased krill fishing in the early 1970s. Due to the natural range of the krill the convention had to apply beyond 60 degrees South latitude, the Antarctic Treaty Area, using the Antarctic Convergence as an outer boundary. The Antarctic Convergence is the fluctuating border between the Antarctic and Southern Oceans, the boundary where the cold Antarctic waters meet the warmer northern waters. The parties extended the range of applicability beyond the Antarctic Treaty’s 60 degree South latitude boundary because krill swim beyond that mark as far north as the Convergence.
Madrid Protocol for the Protection the Antarctic Environment
The Parties to the Antarctic Treaty signed the Madrid Protocol on October 4, 1991 after two years of negotiation. The Protocol provides that it will not enter into force until after it has been ratified by all states which are ATCPs as of the date the Protocol was adopted. At present there is one (of twenty-six ATCPs) states left to ratify the Protocol.
The Protocol developed as a reaction to efforts to establish the Convention on the Regulation of Antarctic Mineral Resource Activities, known as CRAMRA. The purpose of CRAMRA, as stated in the Preamble, was to create an Antarctic mineral resource regime consistent with the Antarctic Treaty. At the end of negotiations for CRAMRA, France and Australia, supported by various environmental groups, indicated their unwillingness to sign the minerals convention. This meant that CRAMRA could not enter into force, since decisions in the ATS must be unanimous. NGOs saw CRAMRA as a system for exploiting Antarctic mineral resources to the detriment of the Antarctic environment and encouraged states to strengthen rather than weaken protection of the continent’s living resources. With the demise of CRAMRA the way was open for the establishment of an environmental protocol to the Antarctic Treaty.
Purpose and Scope of the Protocol
The Preamble to the Protocol establishes two principles out of which the instrument developed: the need to protect the Antarctic environment and dependent and associated ecosystems, and the desire to "supplement the Antarctic Treaty." Protection of the Antarctic Environment is necessary for scientific reasons, as well as in the interest of mankind. The idea of supplementing the Treaty, rather than adopting a "free-standing" convention, was a significant concession to those who supported maintenance of the existing system. However in most of the important respects the Protocol could well have stood alone.
See also: Virutal Antarctica: History of the Antarctic Treaty
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