The legal status of Antarctica

Let’s have a look at the legal status of Antarctica. There are many legal similarities between the status of Antarctica and that of the Moon. For this article, let’s focus on a general presentation of Antarctica’s legal status. 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.

Continent of all the extremes, its geographical isolation and the difficult living conditions which prevail there make it an area which arouses many desires and fantasies on the part of scientists and adventurers in search of mysteries to break through. 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 is a de facto condominium, governed by parties to the Antarctic Treaty System that have consulting status. Twelve countries signed the Antarctic Treaty in 1959, and many more have signed it since then. The treaty prohibits military activities and mineral mining, nuclear explosions and nuclear waste disposal, it supports scientific research and protects the continent’s ecozone. Ongoing experiments are today conducted by more than four thousand scientists from many nations. Antarctica may actually not be this gigantic space of freedom where everyone does what he likes. It is also not a space reserved for scientists, nor an international space that would escape the land claims. In fact, the impulses are great for the control of the region, several countries exerting forms of dominations on certain slices of this South Pole: Argentina, Chile, and Australia (the bordering countries), but also France, Norway, and Russia. What are the rules that govern them? What laws are there? Who owns Antarctica?

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 recognised 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.

The International Geophysical Year (AGI)

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 characterised 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.

Antarctica’s legal status

There are many links, when studying the legal status of Antarctica, between Antarctica and outer space, 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 legal status of Antarctica

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 (about the legal status of Antarctica) 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 – The legal status of Antarctica

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, when speaking about the legal status of Antarctica, 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 (and the legal status of Antarctica) 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. That is what we can say about the legal status of Antarctica.