Antarctic Treaty System: Strengths and Weaknesses

Antarctica is the fifth largest continent on earth and accounts for one-tenth of its total land surface. 98% of the surface of Antarctica is covered with polar icecaps that are 2,160 metres thick on average, which in turn contains about 90% of the earth’s fresh water in the form of ice. Antarctica is also a land rich in marine living resource, with its ice playing an important role in controlling the temperature of the oceans. Indeed, Antarctica is one of the few remaining unspoiled regions in the world. To protect and preserve the precious Antarctic environment, the Antarctic Treaty was adopted in 1959 and took effect in 1961 and presently has signatories.

(i) Discuss the
importance of Article IV of the Antarctic Treaty System as regards the
sovereignty of the parties and how this has arguably been an essential element
of the success of the treaty.

Territorial
disputes are central to the legal and political position of Antarctica. There
are seven states that have claimed territorial sovereignty over areas of
Antarctica.[1]
There is also an area over which sovereignty is not claimed by any state. The
states do not all recognize each other’s claims to the respective areas, and
the claims of three of the states overlap to a large extent. Furthermore, no
other states have expressly recognized the territorial sovereignty of any of
the claimant states.

In
the period preceding the conclusion of the Antarctic Treaty, conflicts ranging
from localized disputes to major rivalries of national interests dominated the
Antarctic region.[2]
Several attempts to ensure international agreement were made but all proposals
were met with opposition from one state or another. Finally, the Antarctic
Treaty was concluded in 1959. One of the main reasons for that successful
cooperation was the inclusion of Article IV.

Article
IV of the Antarctic Treaty provides that there will be no “renunciation by any
contracting party of previously asserted rights of and claims to” or “any basis
of claim” to territorial sovereignty in Antarctica. Action taken while the
treaty is in force cannot constitute “a basis for asserting, supporting, or
denying” any territorial claims, rights, or bases of claims. “No new claim or
enlargement of an existing claim” is permitted while the Treaty is in force.

Article
IV effectively “freezes” the legal status quo in relation to territorial claims
in Antarctica.

The
article creates the ambiguity that promotes important international agreement
while having no effect (either detrimental or positive) on sovereignty claims.

The
provision leaves each state to interpret its content in accordance with its
particular juridical interests. Its inclusion was particularly advantageous to
the superpowers: the U.S. and U.S.S.R. (now Russia). The words “any basis of
claim” in clause 1(b) may protect the prior interests of non-claimant states
which have not previously sought to assert a claim but which might seek to do
so in the future. The
words “or those of its nationals” cover claims made on behalf of, but not
ratified by, the state concerned.[3]

Article
IV is called the “corner-stone” of the Antarctic Treaty System, without it the
extensive scientific research that has been taking place in Antarctica would
not be possible as it involves official agencies and associates of contracting
parties’ governments working in areas which some states consider their
territory.[4]

Article
IV of the Antarctic Treaty and its mirroring articles in the other treaties
present an admirable example of effective dispute management where dispute
resolution is not feasible. Even though the disputes have not been resolved,
nor is it guaranteed they won’t become a source of international tension in the
region in the future, these provisions allowed, despite all the divergent
interests, the states to cooperate closely in Antarctica in “the interest of
all mankind”. As expressed by the British Representative to the Washington
Convention, Mr Heap, “the equilibrium achieved between the states by means of
Article IV should not be disturbed because it is the foundation of peace in the
region”.[5]

(ii) Discuss the
effects of Article XII subparagraphs 2) (a) of the Antarctic Treaty System.

Although the treaty
does not provide for any specific termination date, it has been the
practice of most contracting parties to regard the treaty regime as a temporary
one and to interpret Article XII 2)(a) of the treaty as one signifying the
termination of the present regime thirty years after the entry into force of
the treaty. Subparagraph 2) (a) of Article XII provides that any
party can call for a review conference after the expiration of thirty years
(i.e. in 1991). No state did so, and on the thirtieth anniversary of the Treaty
the parties recognized the continuing strength and relevance of the Treaty by
adopting a declaration recording their determination to maintain and strengthen
the Treaty and to protect Antarctica’s environmental and scientific values.[6]

(iii) Discuss the
weaknesses of the Antarctic Treaty System.

It is true that the
Antarctic Treaty System has managed Antarctica effectively to date, especially
in keeping the region peaceful and demilitarized. However, there are certain
weak points that keep it from being an all-encompassing success of international
cooperation.

Firstly, for many
years, a major criticism of the System had been the lack of a central body to
monitor and enforce the regulations. For most of its existence, the Antarctic
Treaty System operated without a permanent secretariat, which was only
established in 2004. The Secretariat is subordinate to the ATCM which sits only
once a year. A former executive secretary of the Secretariat, Johannes Huber,
claims that the parties display disinterest in the “practical questions of
ensuring its implementation or even its maintenance as a clear and consistent
set of regulations”.[7] The Treaty
relies for implementation entirely on the individual governments that are party
to it. While the Antarctic Treaty System provides wide powers of inspection and
observation, the inspectors lack enforcement powers. For example, in the cases
concerning Convention for the Conservation of Antarctic Marine Resources
(CCAMLR), inspectors may inspect catch, nets and other fishing gear, data, and
records on catch and location. But in the event of a breach, they are only
empowered to report and alert the master of vessels. Responsibility to enforce
the regulation remains on the flag state.[8]

Secondly, the Treaty
has no force for the 140 non-parties of the System. The non-parties are not barred from exploring and exploiting the resources on the Antarctic continent
contrary to principles of the Antarctic Treaty System. They may equally pose a
threat if they decide to rely on other provisions of international law in their
activities. For example, mining in the regulated area is prohibited by the
Protocol on Environmental Protection. On the other hand, regions of the
Southern Ocean that lie within this area are also subject to deep-sea bed
regulation by the United Nations Convention on the Law of the Sea. The deep-sea
bed may potentially be subject to resource exploitation.[9]

While the threat of
exploiting resources is still potential, there is an existing problem of poor
marine life protection.[10]
In the absence of sovereignty over the Antarctic land and, consequently, the
absence of an Exclusive Economic Zone, the entire Southern Ocean from the edge
of the Antarctic continent is considered high seas. All states enjoy high seas
freedoms, including the freedom of fishing. CCAMLR contains regulations for
management of Antarctic fisheries but their effectiveness is reduced by the
inability to enforce CCAMLR against non-party states. Even contracting parties
can circumvent CCALMR’s provisions by using flags of convenience.

Furthermore, the
Antarctic Treaty System is lacking in governing the matters of jurisdiction.
Article VIII of the Antarctic Treaty stipulates that observers, scientific
personnel, and members of the staffs accompanying them are subject to
jurisdiction of the state of their nationality. In case of any dispute,
contracting parties are to reach an agreement via consultations. Thus, the
Treaty failes to include any provisions establishing a jurisdictional status
for persons other than those three categories. It
is not clear how criminal and civil law can be enforced with respect to the non-scientific
visitors and the growing numbers of tourists.

Finally, as mentioned
above, tourism has experienced significant growth in the past several years.
Collective impact of tourists may lead to pollution of the environment, hinder
the scientific research and may pose a threat to the conservation of the
wilderness of Antarctica. Tourism is barely regulated by the Antarctic Treaty
System[11];
it’s left to autoregulation under the International Association of Antarctic
Tour Operators (IAATO). However, tourism operators are not obliged to join
IAATO and may bypass it in organizing their trips to the Antarctic. With the
growth of tourism emerges the possible commercialisation of the Antarctic
continent which raises the question whether Antarctica is still a continent
devoted to science. Consequently, one may critique the fundamental condition to
become a consultative party to the Antarctic Treaty – the obligation to conduct
substantial scientific research. Will it still be relevant if scientific
research is no longer the only objective of activities performed in the region?

You are a lawyer working for the government of the coastal state of Niceland, which has declared an Exclusive Economic Zone extending 200 miles from the baselines.

Advise its on the
following situations:

i.- A Niceland warship navigating in international waters suspects
a nearby ship, sailing under the flag of Uglyland, is engaged in slave trading
and requests the government permission to board it.

According to article
110 of the United Nations Convention on the Law of the Sea (UNCLOS), a warship
which encounters a foreign ship in international waters is justified in boarding
it if there is reasonable ground for suspecting that the foreign ship engages
in the slave trade. The examination should be carried with all possible
consideration. Thus, the government of Niceland may give permission to board
the ship of Uglyland. However, Niceland should be aware that the ship of
Uglyland will be entitled to compensation for any loss or damage in case the
suspicions prove to be unfounded[12].

ii.- Another ship, also with the Uglyland flag, seems to be
transporting drugs. Permission is also requested.

UNCLOS does not include
drug trafficking in the list of grounds which may justify boarding a foreign
ship on the high seas. Instead, article 108 prescribes that all countries shall
cooperate in the suppression of illicit traffic of narcotic drugs and
psychotropic substances. The Convention promotes the flag state principle, only
allowing a state to request international cooperation in suppressing drug trafficking
when the state suspects a ship flying its flag of engaging in it.

Interdiction of a
foreign ship is regulated by the United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substance. Article 17 of the
Convention sets forth that when there are reasonable grounds to believe that a
ship is engaged in illicit drug transportation, the suspecting state must seek
the flag state’s consent before boarding the ship.

The Niceland warship is
not allowed to board the ship flying the flag of Uglyland. The government of Niceland
may request authorization from Uglyland to board and search the ship after
confirming the ship is registered in Uglyland. In case of proceeding with the
interdiction, the Niceland authorities should not endanger the safety of the
sea life, the security of the ship and its cargo or prejudice the commercial
and legal interests of Uglyland[13].

iii.- A Niceland warship has witnessed an oil tanker, sailing under the
flag of Uglyland, cause serious marine pollution by recklessly discharging fuel
6 miles from the baselines, and has followed it. Both ships are now 50 miles
from the baselines. Can it be boarded?

What if the discharge took place 20 miles from the baselines?

First of all, we need to establish
that 6 miles from the baselines is within the territorial sea of Niceland; and 20 miles from the baselines is
within the contiguous zone and the EEZ of Niceland.

UNCLOS defines marine pollution as
“the introduction by man, directly or indirectly, of substances or energy into
the marine environment, including estuaries, which results or is likely to
result in such deleterious effects as harm to living resources and marine life,
hazards to human health, hindrance to marine activities, including fishing and
other legitimate uses of the sea, impairment of quality for use of sea water
and reduction of amenities”[14].
Discharge of pollutants into the sea could be either deliberate dumping of
wastes or pollution due to shipping activities.

1. If
   what Niceland warship witnessed was an act of dumping as defined by article 1(5)
   UNCLOS, then according to article 210 UNCLOS Uglyland would have needed an
   express prior approval from Niceland before dumping within the territorial sea or
   the EEZ. Dumping without prior express approval of the coastal state
   constitutes a violation of UNCLOS.
2. If what took place was pollution
   due to shipping activities, it was most likely an operational discharge of fuel
   into the sea. International law of sea differentiates between operational and
   accidental discharges of oil. Accidental discharges occur when there’s a
   collision of vessels or a situation of distress at sea, such as explosion,
   engine breakdown or running aground. Operational discharges are
   deliberate and result from maintenance operations.^[15] Judging from the facts
   presented, we assume that the oil tanker under the flag of Uglyland was not in
   distress at sea as it continued sailing without interruption. Operational
   discharge of oil by vessels is not prohibited unless it violates certain
   standards laid by international agreements and national legislation. The main
   source for regulation of pollution from ships is the 1973 International
   Convention for the Prevention of Pollution by Ships as amended by the Protocol
   of 1978 (MARPOL).

In addition to international
rules and standards, a state can enact laws and regulations pertaining to
prevention and control of marine pollution in its territorial sea or the EEZ.

In the instance of the discharge happening 6
miles from the baselines, i.e. within the territorial sea of Niceland, article
220(2) UNCLOS is applicable. According to it, “where there are clear grounds
for believing that the vessel navigating in the territorial sea of a State has,
during its passage therein, violated laws and regulations of that State adopted
in accordance with this Convention or applicable international rules and
standards for the prevention, reduction and control of pollution from vessels,
that State, […], may undertake physical inspection of the vessel relating to
the violation and may, where the evidence so warrants, institute proceedings,
including detention of the vessel, in accordance with its laws, …”. If Niceland
warship has reasonable grounds to believe that a violation of pollution
prevention laws took place, it has the right to board and inspect the oil tanker.
The fact that both ships are now 50 miles from the baselines suggests that the
warship had to undertake the hot pursuit in accordance with article 111 UNCLOS.
It had to be commenced only after a clear signal to stop was given to the oil
tanker and could be continued outside the territorial sea if it had not been
interrupted. Granted that all conditions
are adhered to, the warship may detain and board the oil tanker.

In the case of the discharge
happening 20 miles from the baselines, i.e. within the contiguous zone and the
EEZ of Niceland, article 220 UNCLOS is again applicable. If Niceland has clear
grounds to believe that the oil tanker violated applicable international rules
or regulations of Niceland for pollution prevention, Niceland may require the
oil ranker to five information regarding its identity and port of registry, its
last and next port of call and other relevant information required to establish
whether any such violation has occurred[16].
If the oil tanker failed to give relevant information and the discharge was
substantial as to cause or threat significant pollution, Niceland could
exercise physical inspection of the tanker[17].
If Niceland has clear objective evidence that such discharge will cause major
damage to the coastline, it may detain the oil tanker[18].
In order to perform inspection or detention of the tanker the Niceland warship
may commence the hot pursuit pursuant to article 111(2) UNCLOS and subsequently
board the tanker, providing there was a clear signal to stop and the pursuit
was not interrupted.

iv.- A fishing ship, sailing under the flag of Smileland, is operating
100 miles from the coast of Niceland. When confronted by a Niceland warship, it
replies it’s operating in International waters and can therefore fish as much
as it wants.

In accordance with the article 57
UNCLOS Niceland established an Exclusive Economic
Zone extending 200 miles from the baselines. Regardless of the method employed
to determine baselines, a ship operating 100 miles from the coast of Niceland
is operating within the Exclusive Economic Zone of Niceland. The surface waters
within the EEZ are referred to as international waters only when implying high
seas freedom of navigation[19].

Pursuant to article 56 of the Convention, Niceland as the coastal state has
sovereign rights over “exploring and exploiting, conserving and managing the
natural resources, whether living or non-living” in its EEZ. Furthermore,
Niceland determines the allowable catch of the living resources in the EEZ[20]. If
Niceland granted access to other states to its EEZ for the purposes of
harvesting the living resources, nationals of these other states would have to
comply with the terms and regulations established by Niceland, which may include,
inter alia, quotas of catch[21].

The fishing ship of Smileland had no right to fish 100 miles from the
coast of Niceland, unless Smileland was given access to the living resources of
Niceland’s EEZ, in which case the amount of allowable catch is not “as much as
it wants” but that established by Niceland.

The Niceland warship may proceed with boarding, inspection, and arrest
of the Smileland ship as may be necessary to ensure compliance with the laws
and regulations of Niceland[22].

v.- The government of Smileland has informed the government of
Niceland of its intention to lay down a submarine pipeline near a pre-existing
one laid some years ago by Niceland. The pipeline would be laid at a distance
from baselines ranging from 10 to 300 miles.

The proposed submarine pipeline
will be laid in several maritime zones: the territorial sea (10 to 12 miles),
the EEZ (12 to 200 miles) and the continental shelf (200 to 300 miles) of
Niceland.

1. Niceland has the right to establish conditions
   for pipelines entering its territorial sea[23].
   Niceland may also adopt regulations restricting the innocent passage through
   its territorial sea to protect existing cables and pipelines, and the living
   resources of the sea.
2. In the EEZ all states enjoy, subject to the
   relevant limitations, the freedoms referred to in article 87, including the
   freedom of laying submarine pipelines[24].
   Therefore, Smileland’s activities of laying the pipeline are subject to
   Niceland’s sovereign rights to explore, exploit, conserve and manage natural
   and living resources of its EEZ.[25]
3. All states can lay submarine pipelines on the
   continental shelf subject to the coastal state’s right “to take reasonable
   measures for the exploration of the continental shelf, the exploitation of its
   natural resources and the prevention, reduction and control of pollution from
   pipelines”.[26]
   It is also necessary to acquire consent of the coastal state to the proposed
   course of laying the pipeline.

Given that Smileland intends to
lay its pipeline close to the pipeline laid by Niceland, Smileland should give
the latter due regard and ensure that the possibilities of repairing the
Niceland’s pipeline are not prejudiced.[27]

Article 19-21 of the Vienna Convention on the Law of Treaties 1969 allows states to enter reservations unless these are refused by other states or contrary to the objective of the treaty in question.

In 2011, the
International Law Commission has discussed whether reservations should be
permitted in the field of human rights.

Review the criteria established by the commission and discuss
whether or not you consider that reservations should be permitted in the area
of human rights.

In its Guide to Practice on
Reservations to Treaties[28]
completed in 2011 the International Law Commission (ILC) did not have a
separate guideline relating to human right treaties. Instead, it opted for more
general terms and urging consideration of the specifics of the treaty under
review.

Part 3 of the Guide establishes the
criteria for permissibility of reservations. It starts with reproducing the
contents of Article 19 of the 1969 Vienna Convention. According to guideline
3.1 a reservation is permissible unless: a) it is prohibited by the treaty; b)
it is not among the specified reservations permitted by the treaty: c) it is
incompatible with the object and purpose of the treaty. Regarding the field of
human rights, most issues arise when specifying the notions of “object and
purpose” of a treaty. Guideline 3.1.5. gives the general idea of the meaning of
the expression and guideline 3.1.5.1 provides a method of determining the
“object and purpose” of the treaty. The next guidelines that apply specifically
to human rights are 3.1.5.4 and 3.1.5.6.

In 3.1.5.4 the ILC clarifies that a
reservation is not permitted to a provision “concerning rights from which no
derogation is permissible under any circumstances, unless the reservation in
question is compatible with the essential rights and obligations arising out of
that treaty”.

Guideline 3.1.5.6 refers to
treaties “containing numerous interdependent rights and obligations” which is
usually the case of treaties in the field of human rights. In assessing the
compatibility of a reservation with the object and purpose of such treaties,
account should be taken of the importance of the provision in question within
the general scope of the treaty, and also the extent of its importance on the
treaty. Therefore, it can be inferred that certain right protected by international
treaties may be less essential than others, and even in the case of essential
rights, reservations may be permissible if they do not impede protection of the
rights and do not excessively modify their legal regime.

While conceding that reservations to treaties in the field of human rights are “incompatible with the fundamental notion of human rights as being universal in application to every single human being”[29], we have to agree with the ILC that such reservations should not be declared impermissible ab initio, but should rather be subject to particular standards of examination. In our opinion, at the present time, reservations cannot altogether be avoided due to the diverging positions of states and the necessity to encourage participation of as many states as possible in the human rights treaties. The ILC attempted to improve the “object and purpose” test but, ultimately, its efficiency depends on its objective enforcement. Placing the task of deciding the permissibility of reservations on an independent body, established for the purpose of interpreting the treaty and monitoring the compliance by states with its provisions, seems to be a possible solution to the problem.

[1] They are Argentina, Australia, Chile, France, New
Zealand, Norway, the United Kingdom.

[2] Stokke, Olav
Schram., and Davor Vidas. Governing the Antarctic: the effectiveness and
legitimacy of the Antartic Treaty System. Cambridge University Press, 1996, p.
49, books.google.ru/books?id=hGC6ShBYdy0C&lpg=PP1&hl=ru&pg=PP1#v=onepage&q&f=false.
Accessed 20 Apr. 2017.

[3] Gillian Triggs, The Antarctic Treaty Regime: A Workable
Compromise or a Purgatory of Ambiguity, 17 Case W. Res. J. Int’l L. 1985, p.
200, heinonline.org/HOL/LandingPage?handle=hein.journals/cwrint17&div=&id=201&page=.
Accessed 10 Apr. 2017.

[4] Watts, Arthur. International law and the Antarctic
Treaty system. Vol. 11, Cambridge University Press, 1992, p. 126,
books.google.ru/books?id=etNtoK1kqJYC&printsec=frontcover&hl=ru#v=onepage&q&f=false.
Accessed 10 Apr. 2017

[5] Romualdo Bermejo, Antarctic System: Crisis or Success of
Multilateralism, 22 Comp. & Int’l L.J. S. Afr. 1989, p. 22

[6] “The Antarctic
Treaty Explained.” British Antarctic Survey,
www.bas.ac.uk/about/antarctica/the-antarctic-treaty/the-antarctic-treaty-explained/.
Accessed 11 Apr. 2017.

[7] Huber J, The
Antarctic Treaty: Towards a new partnership, Berkman PA et al. (eds), Science
Diplomacy: Antarctica, Science and the Governance of International Spaces.
Washington DC: Smithsonian Institution, 2011, p. 44, www.atsummit50.org/media/book-14.pdf.
Accessed 13 Apr. 2017.

[8] Martin Lishexian
Lee, A Case for World Government of the Antarctic, 9 Gonz. J. Int’l L. 2005, p.
84,
www.law.gonzaga.edu/gjil/2006/04/a-case-for-world-government-of-the-antarctic/.
Accessed 12 Apr. 2017.

[9] Martin Lishexian
Lee, A Case for World Government of the Antarctic, p. 83.

[10] Christina A.
Hoefsmit, Southern Ocean Shakeup: Establishing Sovereignty in Antarctica and
the Consequences for Fishery Management, 15 Roger Williams U. L. Rev. 2010, p.
565, heinonline.org/HOL/Page?handle=hein.journals/rwulr15&start_page=547&collection=journals&id=551.
Accessed 19 Apr. 2017.

[11] “Challenges for
the Antarctic Treaty System.” Vereniging voor de Verenigde Naties,
www.vvn.be/wereldbeeld/challenges-antarctic-treaty-system/. Accessed 20 Apr.
2017.

[12] Article 110(3) UNCLOS.

[13] Article 17(5) of the United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substance.

[14] Article 1(4) UNCLOS.

[15] Global Marine Oil
Pollution Information Gateway – Oil spills (Accidental discharges). oils.gpa.unep.org/facts/oilspills.htm.
Accessed 15 Apr. 2017.

[16] Article 220(3) UNCLOS.

[17] Ibid at Article 229(5).

[18] Ibid at Article 220(6).

[19] Ibid at Article 58(1).

[20] Ibid at Article 61.

[21] Ibid at Article 62(4).

[22] Ibid at Article 73.

[23] Article 79(4) UNCLOS.

[24] Ibid at Article 58.

[25] Ibid at Article 56.

[26] Ibid at Article 79(1),(2).

[27] Ibid at Article 79(5).

[28] Report of the ILC
on the Work of its 63rd session, GA, Official Records, 66th Session, Supplement
No. 10, Addendum 1, Doc. A/66/10/Add. 1,
legal.un.org/ilc/reports/2011/english/addendum.pdf. Accessed 23 Apr. 2017.

[29] Fournier, J., Reservations and the Effective Protection
of Human Rights. Goettingen Journal of International Law 2(2), 2010. p.440, www.gojil.eu/issues/22/22_article_fournier.pdf.
Accessed 23 Apr. 2017.