The lawfulness of mining activities in Antarctica

Let’s look at the lawfulness of mining activities in Antarctica. Today, as many private companies are aiming at exploiting outer space’s resources, and as even more students, professors, lawyers or specialists of space law – or corpus juris spatialis – are debating about the lawfulness of the exploitation of Outer Space, including the Moon and Other Celestial Bodies, let’s focus on Antarctica and the legal aspects of mining in Antarctica: the lawfulness of mining activities in Antarctica.

Speaking about the lawfulness of mining activities in Antarctica, let’s note that technology has changed significantly for over twenty-five years. The technical constraints that mining operators would have to overcome may be less prohibitive than in previous years, but they remain very heavy because of the environment that would welcome them. The increase in the price of oil and minerals means that some activities, previously considered expensive, become economically viable today. In addition, in times of economic recession, economic concerns may outweigh purely environmental concerns. The issue of the scarcity of fossil energy sources could increase the ambition of those who would like to exploit mineral resources.

As I have already mentioned in a previous article on space legal issues entitled “The legal status of Antarctica”, Earth’s southernmost continent has in many aspects a legal regime analogous to that of the Moon. Let’s recall that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967) was largely inspired by the redaction of the Antarctic Treaty and related agreements, collectively known as the Antarctic Treaty System (ATS), signed in Washington on December 1959 by the twelve countries whose scientists had been active in and around Antarctica during the International Geophysical Year (IGY) in the late 1950s.

The International Geophysical Year (AGI) was a globally coordinated research project conducted between July 1957 and December 1958. The third edition of the International Polar Year was characterized by the massive use of technologies inherited from the Second World War and reinvested in the scientific field, starting with the radar. Many expeditions to Antarctica were placed under the voluntary coordination of seventy countries in the midst of the Cold War. This IGY impelled the Antarctic Treaty in 1959 (Article II of which provides for freedom of scientific research and cooperation in Antarctica, as practiced during the International Geophysical Year) as well as the Protocol on Environmental Protection to the Antarctic Treaty (also known as the Madrid Protocol) in 1991; as a result emerged different principles such as the principle of freezing territorial claims, the principle of non-militarization and non-nuclearization or the principle of freedom of scientific research.

Speaking about the lawfulness of mining activities in Antarctica, with the recent development of certain technologies and the ever more growing need for more and rarest resources, some environment (seabed mining of polymetallic nodules, silver, copper or gold in Antarctica, Helium-3 mining on the lunar surface…) might become key elements of a multi-billion dollar economic activity. Hence the need for strong and stable legal frameworks, and specialised jurists.

Physical proprieties of Antarctica

Antarctica is Earth’s southernmost continent. It contains the geographic South Pole and is situated in the Antarctic region of the Southern Hemisphere, almost entirely south of the Antarctic Circle, and is surrounded by the Southern Ocean. At fourteen millions square kilometres, it is the fifth-largest continent. About ninety-eight percent of Antarctica is covered by ice that averages two kilometres in thickness, which extends to all but the northernmost reaches of the Antarctic Peninsula. Antarctica, on average, is the coldest, driest, and windiest continent, and has the highest average elevation of all the continents. Most of Antarctica is a polar desert and its temperature has reached minus ninety degrees Celsius. Anywhere from one thousand to five thousand people reside throughout the year at research stations scattered across the continent. Organisms native to Antarctica include many types of algae, bacteria, fungi, plants, and certain animals, such as mites, nematodes, penguins, seals and tardigrades. Vegetation, where it occurs, is tundra.

Although myths and speculation about a Terra Australis (Latin for “South Land”, it was a hypothetical continent first posited in antiquity and which appeared on maps between the 15th and 18th centuries) date back to antiquity, Antarctica is noted as the last region on Earth in recorded history to be discovered, unseen until 1820 when the Russian expedition of Fabian Gottlieb von Bellingshausen and Mikhail Lazarev on Vostok (a sloop-of-war or “warship with a single gun deck that carried up to eighteen guns” of the Imperial Russian Navy, the lead ship of the First Russian Antarctic Expedition) and Mirny (the second ship of the First Russian Antarctic Expedition) sighted the Fimbul ice shelf (an ice shelf about two hundred kilometres long and one hundred kilometres wide, nourished by Jutulstraumen Glacier, bordering the coast of Queen Maud Land). The continent, however, remained largely neglected for the rest of the 19th century because of its hostile environment, lack of easily accessible resources, and isolation. In 1895, the first confirmed landing was conducted by a team of Norwegians. An expedition led by Norwegian polar explorer Roald Amundsen from the ship Fram became the first to reach the geographic South Pole on December 14, 1911, using a route from the Bay of Whales and up the Axel Heiberg Glacier. One month later, the doomed Scott Expedition, the British Antarctic Expedition led by Robert Falcon Scott, reached the pole.

Antarctica’s resources

There are known reserves of oil and coal as well as mineral deposits in Antarctica, although detailed knowledge of these mineral deposits is sketchy. In the last fifty years of scientific research, no large deposits of mineralized rocks have been found. Experts believe that mineral and metal resources are likely to be available in Antarctica as known metalliferous fold belts that are found in Australia, Africa, and South America seem to have continuations in this continent according to general principles of plate tectonics. The possible resources include silver, copper, gold, nickel, platinum, iron ore, chromium, cobalt, molybdenum, zinc, manganese lead, titanium, nickel, and uranium. Coal and hydrocarbons have been located in minimal non-commercial quantities. Mining experts state that the Antarctic Peninsula has some copper-bearing plutons that have precise similarities to the Andean porphyry copper bodies.

According to geologic structure and geophysical evidence, observations have been made to indicate the possible presence of petroleum reserves off the coast of Antarctica especially in the thick sedimentary basins of the Filchner Ice Shelf, Ronne Ice Shelf, Amery Ice Shelf, Ross Sea and Ice Shelf, and the Weddell Sea. Similarly, there is widespread belief among the mining community that hydrocarbons are also present in Antarctica based on the fact that hydrocarbons have been found along the Atlantic coasts of South America and Africa, the south coast of Australia, and the east coast of India, indicating the possibility of similar such deposits along the coasts of Antarctica. Finally, coal has been found in the Transantarctic Mountains and Prince Charles Mountains. However, the quality of coal discovered in the Transantarctic Mountains was low.

When talking about the lawfulness of mining activities in Antarctica, mining in Antarctica would be very difficult, dangerous and expensive as the climate is so harsh, the ice is very thick and Antarctica is very remote from major centres of population. This would make the transportation of minerals and equipment in and out of Antarctica hazardous. Drilling would also be difficult because of the vast quantities of moving ice and glaciers as well as the huge depth (five kilometres at its thickest) that would be required to drill to reach the minerals.

Antarctica’s legal status

Let’s have a look at the lawfulness of mining activities in Antarctica. Antarctica is a condominium. In international law, a condominium (plural either condominia, as in Latin, or condominiums) is a political territory (state or border area) in or over which multiple sovereign powers formally agree to share equal dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it into national zones. Although a condominium, coined in the eighteen century from Latin com- together + dominium right of ownership, has always been recognized as a theoretical possibility, condominia have been rare in practice. A major problem, and the reason so few have existed, is the difficulty of ensuring co-operation between the sovereign powers; once the understanding fails, the status is likely to become untenable. Antarctica is a de facto condominium, governed by parties to the Antarctic Treaty System that have consulting status. The International Space Station is a de facto space condominium, via a program of complex set of legal, political and financial agreements between all parties.

There are many links between Antarctica and outer space (and that is why it is important to understand the lawfulness of mining activities in Antarctica), such as the prohibition of military activities or the prohibition of mining the continent. High seas or Antarctica are important when reasoning about space activities; not surprisingly, the US Space Agency (NASA) has decided to occupy this place to test the equipment that will be used in future missions to the planet Mars. The geographical and climatic particularism of Antarctica have given rise to specific problems in international law: sovereignty, jurisdiction, the administration of people and resources. The national responses to these problems gave birth in 1959, with the signing of the Antarctic Treaty and related agreements, collectively known as the Antarctic Treaty System (ATS), to a form of collective administration. With the emergence of new problems related to the protection of the environment and the conservation and exploitation of biological and mineral resources, the consultation mechanisms put in place by the Treaty have given rise to important legal and institutional developments. All these mechanisms and developments, animated by their own dynamics, have been described as the Antarctic System by comparison and opposition to the UN system or other regional systems of law.

I. The Antarctic Treaty System

The Antarctic Treaty and related agreements, collectively known as the Antarctic Treaty System (ATS), regulate international relations with respect to Antarctica, Earth’s only continent without a native human population. For the purposes of the treaty system, Antarctica is defined as all of the land and ice shelves south of sixtieth parallel south, a circle of latitude that is sixty degrees south of the Earth’s equatorial plane. The treaty entered into force in 1961 and currently has more than fifty Parties. The treaty sets aside Antarctica as a scientific preserve, establishes freedom of scientific investigation, and bans military activity on the continent; the treaty also established the first arms control agreement during the Cold War. The original signatories were the twelve countries active in Antarctica during the International Geophysical Year (IGY).

Antarctica currently has no permanent population and therefore has no citizenship nor government. All personnel present on Antarctica at any time are citizens or nationals of some sovereignty outside Antarctica, as there is no Antarctic sovereignty. The majority of Antarctica is claimed by one or more countries, but most countries do not explicitly recognize those claims. The area on the mainland between ninety degrees west and one hundred and fifty degrees west is the only major land on Earth not claimed by any country.

Article I of the Antarctic Treaty states that “Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapons. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose”. Its Article II enounces that “Freedom of scientific investigation in Antarctica and cooperation toward that end, as applied during the International Geophysical Year, shall continue, subject to the provisions of the present Treaty”. Article III is about the free exchange of information and personnel in co-operation with the United Nations and other international agencies.

Article IV declares that “Nothing contained in the present Treaty shall be interpreted as: a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; 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; 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. 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”.

Article V express that “Any nuclear explosions in Antarctica and the disposal there of radioactive waste material shall be prohibited. In the event of the conclusion of international agreements concerning the use of nuclear energy, including nuclear explosions and the disposal of radioactive waste material, to which all of the Contracting Parties whose representatives are entitled to participate in the meetings provided for under Article IX are parties, the rules established under such agreements shall apply in Antarctica”. Article VII exposes that Treaty-state observers have free access, including aerial observation, to any area and may inspect all stations, installations, and equipment; advance notice of all activities and of the introduction of military personnel must be given.

Article VIII specifies that “In order to facilitate the exercise of their functions under the present Treaty, and without prejudice to the respective positions of the Contracting Parties relating to jurisdiction over all other persons in Antarctica, observers designated under paragraph 1 of Article VII and scientific personnel exchanged under subparagraph 1 (b) of Article III of the Treaty, and members of the staffs accompanying any such persons, shall be subject only to the jurisdiction of the Contracting Party of which they are nationals in respect of all acts or omissions occurring while they are in Antarctica for the purpose of exercising their functions. Without prejudice to the provisions of paragraph 1 of this Article, and pending the adoption of measures in pursuance of subparagraph 1 (e) of Article IX, the Contracting Parties concerned in any case of dispute with regard to the exercise of jurisdiction in Antarctica shall immediately consult together with a view to reaching a mutually acceptable solution”.

Article XI states that “If any dispute arises between two or more of the Contracting Parties concerning the interpretation or application of the present Treaty, those Contracting Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. Any dispute of this character not so resolved shall, with the consent, in each case, of all parties to the dispute, be referred to the International Court of Justice for settlement; but failure to reach agreement on reference to the International Court shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 of this Article”.

Those articles illustrate Antarctica’s protected status. It is interesting to understand that those rules elaborated during the Cold War influenced Space Laws, especially the Outer Space Treaty (1967) and the Moon Agreement (1979).

II. Protocol on Environmental Protection to the Antarctic Treaty

Since 1991, Antarctica has been a nature reserve dedicated to peace and science. Its fragile environment is subject to a single legal regime based on the best scientific knowledge. The Protocol on Environmental Protection to the Antarctic Treaty, also known as the Antarctic-Environmental Protocol, or the Madrid Protocol, provides a framework for activities to limit their negative impacts on the environment and dependent and associated ecosystems. The preservation of the intrinsic value of Antarctica is ensured by the prior and mandatory completion of an impact study. This approach is complemented by the strengthening of protection measures on Antarctic Spaces and Species. Also, the continent and the Southern Ocean benefit from the best protection regime in the world. However, the twenty-first century poses significant challenges: the steady increase in the number of activities in Antarctica, the presence of persistent organic pollutants, the pursuit of fishing activities on a scarce resource, bioprospecting, the introduction of Exogenous species, the growth of tourism and the imminent risk of a maritime accident are all issues that must be addressed by the Parties to the Treaty. Will the anticipatory management approach and cooperation preserve Antarctica for the benefit of humanity?

The Madrid Protocol is part of the Antarctic Treaty System. It provides for comprehensive protection of the Antarctic environment and dependent and associated ecosystems. It was concluded in Madrid and opened for signature on October 4, 1991 and entered into force on January 14, 1998. The treaty will be open for review in 2048. Its Article 2 states that “The Parties commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and hereby designate Antarctica as a natural reserve, devoted to peace and science”. Article 3 edicts ENVIRONMENTAL PRINCIPLES, among which the fact that “Activities shall be planned and conducted in the Antarctic Treaty area so as to accord priority to scientific research and to preserve the value of Antarctica as an area for the conduct of such research, including research essential to understanding the global environment”.

It’s interesting to notice that both the Antarctic Treaty System and the Madrid Protocol edict space-like laws. Let’s add that the evolution of the Law of the Sea, which resulted in the adoption of the Montego Bay Convention (1982), profoundly affected the system of the Antarctic Treaty of 1959. By increasing the powers of the coastal State, the Montego Bay Convention has led to an extension of the powers of the consultative parties on the marine areas adjacent to the southern continent so as to take into account the positions of the claiming states. But at the same time, the emergence of the concept of a common heritage of humankind, as reflected in the Montego Bay Convention, allowed third states to launch an offensive within the United Nations to challenge the Treaty and the exclusive management of the region by Consultative Parties. The magnitude of this offensive has highlighted the weaknesses of the Antarctic Treaty System with respect to the sovereignty and difficulty of a collective approach to jurisdiction over the marine areas adjacent to the continent. Paradoxically, however, this questioning of the Treaty System has led to a strengthening of the latter by the abandonment of the Wellington Convention on Mineral Resources and the adoption by the Consultative Parties of a protocol establishing very strict mechanisms for the protection of mineral resources and banishing mining activities. The Law of the Sea has thus been both a factor in the development of the Antarctic Treaty System and a factor in redefining the objectives of the consultative parties.

The lawfulness of mining activities in Antarctica

Apart from occasional conflicts arising from competing territorial claims (Great Britain and Argentina, for instance, claimed overlapping sectors south of the Falkland/Malvinas Islands as early as 1908), the Antarctic continent attracted mostly the interest of whalers and explorers rather than jurists. The Antarctic Treaty states in its Preamble that “it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.

Article I of the Antarctic Treaty states that “Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapons. The present Treaty shall not prevent the use of military personnel or equipment for scientific research or for any other peaceful purpose”. Its Article II enounces that “Freedom of scientific investigation in Antarctica and cooperation toward that end, as applied during the International Geophysical Year, shall continue, subject to the provisions of the present Treaty”. Article III is about the free exchange of information and personnel in co-operation with the United Nations and other international agencies.

Article III reinforces the peaceful and scientific aspects of Antarctica by stating that “1. In order to promote international cooperation in scientific investigation in Antarctica, as provided for in Article II of the present Treaty, the Contracting Parties agree that, to the greatest extent feasible and practicable: (a) information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy and efficiency of operations; (b) scientific personnel shall be exchanged in Antarctica between expeditions and stations; (c) scientific observations and results from Antarctica shall be exchanged and made freely available. 2. In implementing this Article, every encouragement shall be given to the establishment of cooperative working relations with those Specialized Agencies of the United Nations and other international organizations having a scientific or technical interest in Antarctica”.

Article IV declares that “Nothing contained in the present Treaty shall be interpreted as: a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; 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; 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. 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”.

Article VI specifies that “The provisions of the present Treaty shall apply to the area south of 60 South latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area”.

Article X states that “Each of the Contracting Parties undertakes to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in Antarctica contrary to the principles or purposes of the present Treaty”.

The Antarctic Treaty does not specifically address the issue of mineral activities. Therefore, the question of their admissibility is one of treaty interpretation. The proposed mineral activities in Antarctica would violate the Antarctic Treaty because of their alleged prejudice to pure scientific research and their inescapable contamination of the environment, with consequent frustration of the fundamental objectives of the Treaty set forth in the Preamble and in articles II and III. On the other hand, it has been maintained that the “peaceful purposes” must be understood to include mineral activities within the sphere of permissible uses of Antarctica, insofar as they are neither hostile nor military in nature.

The other major factor that will condition the development of a legal regime for mineral activities within the Treaty system is the special territorial status of Antarctica. Article IV of the Antarctic Treaty temporarily freezes existing claims and relative objections. Future activities connected to the exploration and development of mineral resources will obviously affect this situation.

Let’s also mention that the Antarctic Treaty does not contain a specific reference to the “common heritage” principle, and it could not have done so because, in 1959, the expression was not yet part of the international vocabulary. The application of the common heritage principle to Antarctica, however, has been advocated in legal literature and diplomatic pronouncements.

As a result, the 1959 Antarctic Treaty did not legislate on the question of the lawfulness of mining activities in Antarctica. But the Protocol on Environmental Protection to the Antarctic Treaty, also known as the Antarctic-Environmental Protocol, or the Madrid Protocol, which entered into force on January 14, 1998, provided a framework for activities to limit their negative impacts on the environment and dependent and associated ecosystems. The Madrid Protocol did legislate on the lawfulness of activities relating to mineral resources.

ARTICLE 3 of the Madrid Protocol on ENVIRONMENTAL PRINCIPLES states that “1. The protection of the Antarctic environment and dependent and associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic values and its value as an area for the conduct of scientific research, in particular research essential to understanding the global environment, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area. 2. To this end: (a) activities in the Antarctic Treaty area shall be planned and conducted so as to limit adverse impacts on the Antarctic environment and dependent and associated ecosystems; (b) activities in the Antarctic Treaty area shall be planned and conducted so as to avoid: (i) adverse effects on climate or weather patterns; (ii) significant adverse effects on air or water quality; (iii) significant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environments; (iv) detrimental changes in the distribution, abundance or productivity of species or populations of species of fauna and flora; (v) further jeopardy to endangered or threatened species or populations of such species; or (vi) degradation of, or substantial risk to, areas of biological, scientific, historic, aesthetic or wilderness significance; (c) activities in the Antarctic Treaty area shall be planned and conducted on the basis of information sufficient to allow prior assessments of, and informed judgments about, their possible impacts on the Antarctic environment and dependent and associated ecosystems and on the value of Antarctica for the conduct of scientific research; such judgments shall take account of: (i) the scope of the activity, including its area, duration and intensity; (ii) the cumulative impacts of the activity, both by itself and in combination with other activities in the Antarctic Treaty area; (iii) whether the activity will detrimentally affect any other activity in the Antarctic Treaty area; (iv) whether technology and procedures are available to provide for environmentally safe operations; (v) whether there exists the capacity to monitor key environmental parameters and ecosystem components so as to identify and provide early warning of any adverse effects of the activity and to provide for such modification of operating procedures as may be necessary in the light of the results of monitoring or increased knowledge of the Antarctic environment and dependent and associated ecosystems; and (vi) whether there exists the capacity to respond promptly and effectively to accidents, particularly those with potential environmental effects; (d) regular and effective monitoring shall take place to allow assessment of the impacts of ongoing activities, including the verification of predicted impacts; (e) regular and effective monitoring shall take place to facilitate early detection of the possible unforeseen effects of activities carried on both within and outside the Antarctic Treaty area on the Antarctic environment and dependent and associated ecosystems. 3. Activities shall be planned and conducted in the Antarctic Treaty area so as to accord priority to scientific research and to preserve the value of Antarctica as an area for the conduct of such research, including research essential to understanding the global environment. 4. Activities undertaken in the Antarctic Treaty area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required in accordance with Article VII (5) of the Antarctic Treaty, including associated logistic support activities, shall: (a) take place in a manner consistent with the principles in this Article; and (b) be modified, suspended or cancelled if they result in or threaten to result in impacts upon the Antarctic environment or dependent or associated ecosystems inconsistent with those principles”.

Article 3 states that protection of the Antarctic environment as a wilderness with aesthetic and scientific value shall be a “fundamental consideration” of activities in the area. Then, ARTICLE 7 on PROHIBITION OF MINERAL RESOURCE ACTIVITIES declares that “Any activity relating to mineral resources, other than scientific research, shall be prohibited”.

The Madrid Protocol prohibits all activities relating to Antarctic mineral resources, except for scientific research. The prohibition of mineral resource activities covers the area south of 60 South latitude, including all ice shelves. The protocol nevertheless opens this region to mining activities for scientific purposes and is subject to national implementation. The mining ban does not cover scientific activities (we find the spirit of the Antarctic Treaty). Contrary to what is often advanced, Antarctica is not reserved for scientific research, but more generally for peaceful activities that respect the environment. The only economic activities that can be considered are currently tourism and fishing. An exclusive right relating to mining activities is granted to scientists. Scientific research is not defined, nor is “activity relating to mineral resources”. The distinction between scientific research stricto sensu and activities related to mineral resources remains uncertain.

When scientific activities on mineral resources are considered, environmental risks must be considered. Regulatory measures have been adopted to reduce the negative environmental effects of any scientific drilling. Holders of scientific projects have the obligation to respect the Madrid Protocol and the national measures taken under this protocol. The protocol lays down the principle of a broad ban on the exploitation of mineral resources. But limited, because it does not cover scientific activities, this prohibition nevertheless has the advantage of being indefinite.

The protocol prohibits activities related to mineral resources for an indefinite period. Like any article of the protocol, Article 7 which contains this prohibition can be the subject of an amendment. Two options may be considered: at any time, or from fifty years after the entry into force of the Madrid Protocol, either before or after 2048.

The Convention on the Regulation of Antarctic Mineral Resource Activities

When speaking about the lawfulness of mining activities in Antarctica, the Convention on the Regulation of Antarctic Mineral Resource Activities is a treaty that is part of the Antarctic Treaty System. The convention was concluded at Wellington on June 1988. The government of New Zealand is the depository of the treaty. The convention was signed by nineteen states, but no states have ratified it. Therefore, the convention has not entered into force and has been replaced by the 1998 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

Concluding remarks on the lawfulness of mining activities in Antarctica

As a result, speaking about the lawfulness of mining activities in Antarctica, nothing is achieved, even though there is a legal framework that includes a ban on mineral resource activities, except for scientific purposes, and this prohibition is regularly reaffirmed. A rule is never enough if it is not accompanied by a real desire to respect it in the long term. That is what we can say on the lawfulness of mining activities in Antarctica.