1 Introduction
In June 2023, the Antarctic Treaty Consultative Parties, ie those who can participate in the decisions taken in the Antarctic Treaty Consultative Meetings (ATCM), adopted a resolution celebrating 25 years since the entry into force of the Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol).1 In this resolution, the Parties reiterated their commitment not to carry out any activities relating to Antarctic mineral resources, other than scientific research. However, in light of the enormous untapped resources of the Southern continent and Ocean, such statement is only partially reassuring.
The mining moratorium is provided for at Article 7 of the Environmental Protocol. It is a non-use measure with a wide scope of applicability, which imposes a potentially unlimited general prohibition on the commercial use of the mineral resources of Antarctica and of the Southern Ocean. However, it includes an exception for scientific research. Since the definition of this term is a matter for each Party, this can lead to heated debates. In recent years, the frequency of international reminders that the moratorium is still in force and does not have a fixed end-date has increased. While nothing in the Environmental Protocol provides for its automatic expiry, and the ban on the exploitation of Antarctic mineral resources is therefore not limited in time, an amendment procedure does exist from 2048 onwards (ie 50 years after entry into force). Hence, concerns about the potential lifting of the current moratorium on mining in Antarctica might well be founded.
This contribution discusses the reasons for and conditions of the adoption of such non-use measure, before turning to an assessment of its effectiveness and of its future. Section 2 therefore focuses on the historical background to the
2 Context and Factors Leading to the Moratorium’s Adoption
The Antarctic Treaty2 and the regime that was built on it, the Antarctic Treaty System (ATS), are generally credited with regulating the Southern continent and Ocean on the basis of a number of pillars: peaceful use, freedom of scientific research, and environmental protection. This account, while not completely erroneous, is a gross oversimplification of an evolution that has not been so linear. It is therefore useful to look back at the stages of the ATS’ development in order to put them into perspective. This contextualisation naturally begins with the Antarctic Treaty itself, followed by the development of the ATS towards conservation of the Southern environment. The ATS Parties’ attitude towards the mineral resources of the Southern region will then be the next focus, before coming to the factors that led to the adoption of the Protocol in 1991, which contains the moratorium on mineral resource activities.
2.1 The 1959 Antarctic Treaty
Antarctica is regularly given many superlatives. This is not surprising; it is the continent of extremes par excellence, and the continent itself is located at the ‘end’ of the globe, at the South Pole, far from the other continents and from maritime routes. This isolation and the difficulties of polar navigation probably explain why the continent was explored relatively late. Of course, it is not excluded that the continent could have been visited before the arrival of
When Westerners sailed in the Southern Ocean in the 19th Century, their main purpose was to harvest marine living resources, that is, seals and whales. Later on, during the 20th Century, territorial claims which were formulated by States such as Argentina, Australia, Chile, France, Norway, New Zealand, and the United Kingdom were also directly linked to the monopolisation of and access to the marine living resources of the area.4
These claims were not unanimously recognised. Since they were sometimes overlapping, they were sources of tension, which increased shortly after the Second World War. Different proposals were made to determine the status of the Antarctic continent.5 The series of collaborations that took place during the International Geophysical Year (IGY), in 1957–1958, allowed interested States to realise that science, or its trappings, could be the ideal glue to help establish a regime for the white continent.6 In 1959, the Antarctic Treaty was concluded by the twelve nations active, within the framework of the IGY, in Antarctica or in the region.7 The twelve original Parties included the seven States that had previously made territorial claims, also known as the Claimants, as well as five non-Claimants: Belgium, Japan, South Africa, the Soviet Union, and the United States.
The Antarctic Treaty, a relatively short instrument, is supported by its Article IV, “the agreement to disagree”, which freezes the territorial dispute in Antarctica. According to this provision and while the Treaty is in force, no future action may be construed as reinforcing or undermining the previously stated claims, and no new claims shall be made. Other important provisions of the Antarctic Treaty relate to peaceful use, including the prohibition of military measures and nuclear explosions, and to scientific cooperation, with Article II promoting the freedom of scientific investigation in Antarctica and cooperation towards that end. In short, the Antarctic Treaty froze the territorial dispute, defined the regime applicable to the Antarctic continent and the
2.2 The ATS’ Development towards Environmental Conservation
The Antarctic Treaty provides for the Parties to meet “at suitable intervals and places” to consult and adopt measures. Article IX lists subjects for Parties to consider at these meetings. This list, according to which measures adopted during ATCM s may, inter alia, “relate to the protection and conservation of the fauna and flora of Antarctica”8 contains the Treaty’s only mention of the environment. This relatively isolated provision has in fact served as a catalyst for the development of the ATS.
The Agreed Measures adopted in 1964,9 which created various environmental tools, including the possibility to designate specially protected areas, represent the first major measures for the conservation of Antarctic fauna and flora.10 A Convention for the Conservation of Antarctic Seals (CCAS) was then adopted in 1972,11 before the conclusion, in 1980, of the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention).12 This latter instrument was innovative in several aspects, notably because it contains the basis of an ecosystem approach, ie an approach that takes into account the different components of ecosystems and their interactions, and that emphasises the importance of understanding relevant ecological processes before decisions are taken.13
With the adoption of the CAMLR Convention several years before the Brundtland Report14 or the Rio Conference,15 the ATS Parties ranked among the forerunners of environmental conservation, which then surfaced as the third pillar of the Antarctic edifice. The adoption of the Environmental Protocol, and of the mining moratorium therein, could therefore appear as a logical
2.3 The ATS and Mineral Resources
Already in the period leading to the adoption of the Antarctic Treaty, Antarctic mineral resources were part of the discussion.17 The absence of a specific provision relating to such topic cannot be attributed to a lack of interest, but rather to uncertainty as to these resources’ availability and envisaged exploitation difficulties. Thereafter, the ATS’ apparent evolution towards an enhanced protection of the Antarctic environment did not prevent Parties from reflecting on the development of a legal regime for the exploitation of Antarctic mineral resources.
The matter was discussed at various ATCM s in the 1970s, and in an increasingly supportive manner. The main concern was to develop a legal framework that would allow for the exploitation of mineral resources, and, pending the development of such a framework, to recommend that States refrain from mining activities.18 After negotiations in the 1980s, a Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) was concluded in June 1988.19 CRAMRA was to enter into force upon 16 ratifications by Consultative Parties, provided that these had been present at the final negotiation meeting
it will also be necessary to prohibit some activities which can be seen as potentially having a seriously detrimental effect on the environment. These include those activities already prohibited by the Antarctic Treaty and, in Australia’s view, minerals activities other than scientific research. Australia’s view that such minerals activities should be banned is unambiguous.22
A recommendation was adopted at the Paris ATCM of 1989 in which representatives took note of proposals made by Australia and France, and recommended to their governments that “a Special Antarctic Treaty Consultative Meeting be held in 1990 to explore and discuss all proposals relating to the comprehensive protection of the Antarctic environment and its dependent and associated ecosystems”.23 Only four negotiating sessions were necessary, over the course of a year, between November 1990 and October 1991, to reach an agreement and thus to conclude the Environmental Protocol, which was adopted in 1991.24
2.4 Factors which Led to the Moratorium
The widespread agreement on the need to conclude an instrument dealing with environmental protection in Antarctica, its quick negotiation, and the inclusion of a provision establishing a moratorium on mineral resource activities contrast with the previous long winding route leading to the conclusion of CRAMRA. A number of combined factors may explain this change, including the heated debates at the United Nations General Assembly (UNGA), criticism from civil society, and questions raised by some of the governments that had signed CRAMRA themselves.
2.4.1 The ATS at the UNGA
The 1970s saw a steep increase in interest towards mining and seabed mining in particular, at the ATS and within the international community in general. Although the potential wealth of the seabed had been known since the return of the HMS Challenger expedition in 1876, this interest did not increase significantly until a century later, following various studies,28 including one presenting the seabed from an economic perspective as an exploitable and potentially very fruitful resource.29 This study, quoted by Arvid Pardo in his
In a 1983 Declaration, the Non-Aligned States noted that “the Antarctic continent is of considerable environmental, climatic, scientific and, potentially, economic importance to the world” and that “the exploration of Antarctica and the exploitation of its resources should be carried out for the benefit of all mankind and in harmony with the protection of the Antarctic environment”.32 Against the mounting pressure to bring the governance of Antarctica within the auspices of the UN, ATS Parties attempted to defend the role of the ATS. In particular, during debates that took place in 1983 and at subsequent UNGA sessions, they invoked the political success that such regime represented at the time, as an example of peaceful cooperation between the two blocs at the heart of the Cold War. However, these efforts were unsuccessful.
Moreover, following the recent adoption of the United Nations Convention on the Law of the Sea (UNCLOS), the Non-Aligned States demanded the application of the Common Heritage of Mankind (CHM).33 They also criticised the ATS as a club that arrogated to itself the right to dispose of Antarctic mineral resources.34 In response, the Parties to the ATS argued that their regime provided environmental stewardship and that transparency and membership had increased. However, these arguments could not be appreciated due to the then-ongoing negotiations to develop a regime for the exploration and exploitation of Antarctic mineral resources, negotiations which would ultimately lead to CRAMRA.35 In light of the continuous and unabating pressure from the
2.4.2 The ATS and Civil Society
The adoption of the Antarctic moratorium on mining can also be linked to international civil society’s actions.36 Greenpeace, especially, was very active on the ‘Question of Antarctica’ during the 1980s. It tried to weight on CRAMRA’s negotiations and to push ATS Parties to abandon mineral resources exploitation plans though various lobbying campaigns. Its temporary installation of a base in Antarctica, from 1987 to 1991, and the “World Park Antarctica” campaign that went with it, which advocated for the creation of a protected area, were widely publicised and firmly established the topic of environmental protection in Antarctica in the media discourse.37
The publication of certain reports during the same period, in particular “Our Common Future”, the report of the World Commission on Environment and Development, also contributed to a more global dissemination of the theme of environmental conservation, notably through the then rapidly accepted notion of sustainable development. The Commission itself referred to Antarctica in its report and presented the ATS above all as a regime designed to ensure environmental conservation.38
Environmental awareness also grew in the wake of maritime environmental disasters. Just as the sinking of the Torrey Canyon off the coast of England in March 1967 led to an important legal response, the sinking of the Exxon Valdez off the coast of Alaska in March 1989 had a major international impact on civil society. Indeed, it acted as a dire reminder of the dangers that extractive activities posed to the environment.39 Despite colossal emergency resources, the environmental consequences proved to be far-reaching. Such resources would
2.4.3 The ATS and Its Own Members
As mentioned previously, the demise of CRAMRA led to the call for the negotiation of an environment-focused instrument. Hence, the reasons that motivated the former treaty’s rejection by some of its very own signatories – all also ATS Parties – are directly relevant to the subsequent adoption of the moratorium. Different reasons can be advanced for their rejection of CRAMRA.
First, the pressure exerted by Australian domestic civil society on the Australian government was efficient following the previously mentioned shipwrecks. Election results in Tasmania in May 1989 for instance showed that people were increasingly attentive to environmental considerations. Antarctic affairs were thus then seen as likely to have a significant impact on elections’ outcomes.41 This led Parties not traditionally associated with environmental concerns to support motions not to ratify CRAMRA.42 Such domestic political reasons can also be advanced when it comes to France, where the government quickly supported the Australian government’s shift, and similarly announced its intention not to ratify CRAMRA, in part because of a breakthrough of the Green party in recent elections, and of future elections then coming up.43
Environmental concerns, whether genuine or strategic, were not the only reasons that prompted the governments of Australia and France to reject CRAMRA and to support a mineral moratorium. Economic considerations
This last argument refers once again to the question of sovereignty. Under CRAMRA, Claimants and non-Claimants would have had a specific role as they would have necessarily been members of the Regulatory Committees and would therefore have had a seat at the decision-table over decisions relating to mineral exploration and exploitation activities in the Antarctic.47 Indeed, Article 29 provided that Regulatory Committees shall consist of 10 Members. Each Committee shall include four members “which assert rights or claims, including the member or members, if any”, “which assert rights or claims in the identified area”, as well as “six members which do not assert rights or claims”, including “the two members […] which assert a basis of claim in Antarctica”, that is, Russia and the United States. The decision-making procedure was mainly based on a two-thirds majority.48 Hence, the Claimants did not have the individual veto that they relied on in other matters of ATS governance, making it impossible for them to de facto control activities in their claimed zones. Moreover, if and once mining activities were allowed to proceed, the special status of Claimants would have been further affected; mining activities by other States would indeed have been tantamount to recognising that Claimants do not have exclusive rights over mineral resources. This impression could have furthermore been accentuated when it came to prospection activities. Indeed, although not conferring any right over Antarctic mineral resources,49
In summary, the factors that led to the rejection of CRAMRA and its subsequent replacement by the 1991 Protocol, and thus by its flagship measure, the moratorium on mineral resource activities other than scientific research, are manifold. In addition to pressure by the UNGA, awareness-raising campaigns by the civil society, environmental concerns leading to changes in the domestic political scenes, and economic considerations, issues related to sovereign claims by Claimants were, once again, of crucial importance.52
3 Content of the Moratorium
The adoption of the Environmental Protocol in 1991 represents a major step in the ATS’ evolution as it put an end to then imminent exploitation intentions. More generally, through this new instrument, the whole regime’s priorities shifted towards the environmental protection of Antarctica. The essence of the whole moratorium can be found in the Article 7 of the Protocol, which states that “any activity relating to mineral resources, other than scientific research, shall be prohibited”.
3.1 Spatial Application
The prohibition on mineral resource activities applies to land and maritime areas alike. The moratorium’s geographical scope of application on land is clear; its seaward limit can, however, be debated.53 Indeed, according to the Protocol’s first Article, “‘Antarctic Treaty area’ means the area to which the provisions of the Antarctic Treaty apply in accordance with Article VI of that Treaty”,54 ie the area south of 60º South Latitude, including all ice shelves.55 No rule however provides that the whole Protocol shall apply to such area. On
Article 6, for instance, requires Parties to cooperate “in the Antarctic Treaty area”. Other provisions, such as Article 2, seem to indicate a broader spatial scope. It reads as follows: “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”.
The provision enunciating the moratorium on mineral resource activities does not contain any precision as to its extent. It can therefore be interpreted as applying either to the area south of 60° South Latitude, or to a wider area encompassing dependent and associated ecosystems, and reaching, as the CAMLR Convention does, the Antarctic Convergence, or even to a narrower area, which could be limited to the Antarctic continental shelf.56
This last possible interpretation raises the general and long-debated issue of how certain rules apply at sea in the Southern region. Article VI of the Antarctic Treaty, to which the Protocol refers, provides that “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”. This provision specifies that the Antarctic Treaty and its subsequent regime do not apply independently of other rules, especially rules relevant to maritime areas. Which of these rules apply has been, and still is, a debated question,57 as it necessarily implies taking position with regard to territorial claims in the Antarctic. Indeed, maritime areas depend on territorial sovereignty, but the Antarctic Treaty froze territorial issues before extended maritime spaces’
3.2 Duration and Amendment
The Environmental Protocol – and therefore the moratorium – does not contain a specific deadline, but it does provide for a minimal duration after its entry into force.
Article 23 specifies that it shall enter into force “on the thirtieth day following the date of deposit of instruments of ratification, acceptance, approval or accession by all States which are Antarctic Treaty Consultative Parties at the date on which this Protocol is adopted”.62 At the time of adoption, there were 26 Consultative Parties. The Protocol entered into force in January 1998, 30 days after the last of these States – Japan – ratified it.
Article 25 goes on to state that a review conference shall be held as soon as possible at the request of any of the Consultative Parties, provided that 50 years have elapsed since the Protocol entered into force.63 Such request therefore cannot be presented before January 2048.
The same provision also specifies that an amendment proposed at a review conference “shall be adopted by a majority of the Parties, including 3/4 of the States which are Antarctic Treaty Consultative Parties at the time of adoption of this Protocol”.65 The Protocol currently has 42 Parties, and had 26 Consultative Parties at the time of its adoption. Such amendment would therefore need to be adopted by a minimum of 22 States, 20 of which must be among the 26 Consultative Parties that adopted the Protocol in 1991.
Finally, if such an amendment to the moratorium were adopted but did not enter into force within three years of the date of its adoption, a Party could then choose to withdraw from the Protocol. Such withdrawal would be effective two years after notification.66 This implies that a withdrawal could only be effective somewhere after January 2053, and probably much later, judging by the different steps required. A notification would first have to be sent, a date and venue for the review conference would have to be defined, a mining regime would have to be negotiated, that regime would have to be adopted by a qualified majority, ratification procedures would have to be followed, and only if such procedures did not allow the amendment to enter into force after three years could a Party notify its future withdrawal, which would then take effect two years later.
3.3 Material Scope
The Protocol prohibits mineral resource activities, ‘other than scientific research’. While the moratorium’s material scope is, prima facie, very encompassing, the question of which activities, exactly, are prohibited remains unsettled. This is due in part to the absence of clarity as to what exactly constitutes ‘mineral resource activities’ in the Protocol. Mineral resource activities are
drilling, dredging, coring, and excavation; disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents; and construction and operation or maintenance of installations, pipelines and other devices related to such activities.70
activities, including logistic support, aimed at identifying and evaluating specific mineral resource occurrences or deposits, including exploratory drilling, dredging and other surface or subsurface excavations required to determine the nature and size of mineral resource deposits and the feasibility of their development, but excluding pilot projects or commercial production.71
The moratorium, finally, also extends to prospecting. According to CRAMRA, these activities include logistic support, and are “aimed at identifying areas of mineral resource potential for possible exploration and development”.74 They consist of “field observations, the use of remote sensing techniques and collection of surface, seafloor and sub-ice samples. Such activities do not include dredging and excavations, except for the purpose of obtaining small-scale samples, or drilling, except shallow drilling into rock and sediment”.75 Both UNCLOS and the regulations adopted by the ISA admit that a prospector may “recover a reasonable quantity of minerals, being the quantity necessary for testing and not for commercial use”.76 Prospecting activities are therefore less invasive than exploration and exploitation activities. They do not necessarily involve extractive activities but include estimation of the composition, sizes and distributions of deposits and their economic values,77 and are “often treated as the preliminary phase of exploration in mining practice and legislation”.78
Due to its aim, the moratorium’s prohibition can be interpreted as encompassing a broad definition of mineral activities. Under the current moratorium on mineral resource activities, then, a Party could not commence exploitation activities itself or grant a permit to a company aiming at exploiting mineral resources in Antarctica for commercial purposes. Furthermore, such prohibition also extends to prior necessary activities such as prospecting and exploration activities. Here though, the line between some of these activities and purely scientific ones is blurred, and difficulties arise.
In summary, the moratorium on mineral resource activities is a remarkable and important measure prohibiting use. When it comes to the details of such prohibition, in particular its geographical scope and its material scope, though, there is room for widely divergent interpretations.87
4.1 The Moratorium since Its Adoption
No mineral exploitation scheme is currently in place in the Antarctic region. It can therefore be advanced that the non-use measure is efficient. Such effectiveness derives from both internal and external acceptance and compliance.
The Protocol was quickly agreed upon and adopted after less than a year of negotiations. Such rhythm inevitably contrasts with the negotiations of CRAMRA in the preceding decade, and indicates a broad acceptance within the ATS. Furthermore, although it took seven years for all States who were Consultative Parties to the Antarctic Treaty in 1991 to adhere to the Protocol, Parties also agreed that “pending entry into force of the Protocol […], current constraints [ie States voluntarily not mining] on Antarctic mineral resource activity shall continue”.88 Hence, this delay cannot be attributed to difficulties regarding the acceptance of the moratorium, but rather to the complexity of domestic procedures. Finally, the moratorium’s adoption also had a direct effect on Parties’ policies, with the Russian government, for instance, deciding to redefine its strategic priorities in Antarctica and to design less resource-oriented scientific research projects.89 Internally, therefore, the moratorium had initially reached wide acceptance and compliance.
any move at drawing up an international convention to establish a nature reserve of world park in Antarctica and its dependent and associated ecosystems must be negotiated with the full participation of the international community90
and insisting that the Protocol “has not taken into consideration the call of the international community to ban permanently prospecting and mining in
It is not insignificant that the pressure on the ATS was gradually lifted following the adoption of the Protocol and the moratorium it contains. The demand of the Non-Aligned States was that Antarctica – its resources, but also access to it, the results of scientific research carried out there, and its environment – should cease to be the preserve of a secretive club of former colonial powers, and that it should benefit humanity as a whole. Initial limited measures, such as publishing ATCM reports and inviting third States to attend to meetings as observers had been insufficient to reverse the tide.95 Only strong symbolic environmental measures, such as the designation of Antarctica as “a natural reserve, devoted to peace and science”,96 and of course the adoption of the moratorium on activities related to Antarctic mineral resources, were able to convince the international community to let the ATS be. The moratorium has been an efficient measure to reduce pressures on both the ATS and on mineral resources in Antarctica, it has kept its relevancy until today, and it has framed many governmental activities in Antarctica since its adoption, refocussing them towards scientific research.
Despite its apparent effectiveness, the moratorium faces different challenges. One of these challenges is the renewed interest in Antarctic mineral resources, and the danger this poses to the moratorium. Other challenges are more broadly looming on the ATS, of which the Protocol is part, and represent therefore indirect threats.
4.2.1 The Gradual Return of Mineral Issues to Antarctic Affairs
The submission of information to the Commission on the Limits of the Continental Shelf (CLCS) by the Claimants in the early 2000s may have given the impression that the Parties to the ATS, and in particular Claimants, were not only seeking to extent their hold over territories, but had also begun to prepare to exploit the Antarctic seabed.97
Claimants provided the CLCS information which is relevant for the extension of their Antarctic continental shelf, which is a maritime zone traditionally used for mineral activities. Such submissions were only preliminary requests or declarations of intent, and most Claimants explicitly requested the Commission not to process this information for the moment.98 Nonetheless, the submissions provoked a number of reactions. In particular, it had the effect of fuelling or reactivating the mistrust of certain governments, whether or not they were ATS’ Members, as to the intentions of the Claimants. The latter invoked in vain mandatory deadlines and the obligation they had to present this partial information in order not to abandon a possible right.99 They also highlighted the fact that the Commission would not examine their request for the time being since it refuses to consider a request involving a land or maritime dispute.100 Notwithstanding these arguments, the widely disseminated information regarding the submissions and the publication of maps (particularly in the request of the Australian government, which claims a large part of
Furthermore, Antarctic mineral resources, even if their exploitation is not on the agenda under the current moratorium, have not completely disappeared from ATCM discussions, and in fact tend to be mentioned more and more regularly.
Thus, at the 2001 ATCM, the Russian delegation presented a document outlining certain research carried out in Antarctica and defended itself from carrying out prospecting activities in the face of the remarks made by certain delegations, assuring that the research carried out were only of a scientific nature.101 The Russian delegation then reaffirmed its compliance with the provisions of the Protocol, and therefore with the ban on activities relating to Antarctic mineral resources, other than scientific research, at the next ATCM.102 In 2011, the Russian delegation once again presented a document outlining its research program, on which occasion it asserted that one of the aim of the activities carried out was to strengthen Russia’s economic capacity, thanks to “complex investigations of Antarctic mineral, hydrocarbon and other natural resources”.103 Here too, the Russian delegation assured that this research was ‘purely scientific’ and complied with the mineral moratorium. In 2019, the same delegation presented a paper in which it stated that the future of Antarctica is likely to be shaped by, inter alia, a “growing interest towards a more intensive use of Antarctic resources, including the issue of the ‘postponed’ utilisation of mineral resources of the region”, and added that despite the moratorium, “there is no denying that given dramatic fluctuations of prices for non-renewable resources at global markets there persists interest to Antarctica”, and called for its control.104
Although the Russian delegation was the only one to address the issue of Antarctic mineral resources so directly, the Chinese delegation also made pointed remarks. In 2017, it presented a document summarising a meeting at which different members of the ATS had been invited to discuss the management of various growing activities, such as tourism, bioprospecting and scientific research. On that occasion, the Chinese delegation referred extensively to the need to strike a balance between protection and utilisation of the Southern
Numerous declarations were adopted by the ATS in response to the reactions the submissions to the CLCS and these statements provoked within and beyond the ATS. Thus, in 2009, a declaration was adopted by the ATCM for the 50th anniversary of the Antarctic Treaty, in which the Parties reaffirmed their “commitment to Article 7 of the Protocol […] which prohibits any activity relating to minerals, other than scientific research”. In 2016, to celebrate the 25th anniversary of the Protocol, a resolution and a declaration were adopted to reaffirm the moratorium in the face of those, “many in the public and media”, “who incorrectly believe that the Protocol expires in 2048”. In this resolution, the representatives also declared “their firm commitment to retain
These statements are being adopted with increasing frequency, with the stated aim to disabuse the many people who are under the impression that the Protocol will expire in 2048 and thereby remedy to what the Parties describe as a ‘misunderstanding’.110 However, these reiterated statements are unconvincing. As ‘remote and very unlikely’ the possibility that the moratorium will be overturned is,111 at least according to the Parties to the Antarctic Treaty, it remains an option. The statements do not change the situation as they are nothing more than non-binding, political declarations,112 which contain no new commitment by the Parties. If anything, the repetition and the increasing rate at which these declarations are being adopted is rather a source of worry, especially when read in conjunction with the positions taken both by the governments of the Claimants with regard to an extension of the continental shelf off the territories they claim in Antarctica and by certain Parties such as Russia and China. Under the moratorium currently in force, mineral resources can certainly not be exploited by the Parties to the Protocol, but the rules mentioned above explicitly provide for the possibility of amending this instrument after the initial 50-years period. At that point in time, exploitation might be open for debate. No one can predict the future, but the identity of the governments at the origin of the statements’ proposal indicates a slowly decreasing support for the moratorium. The above-mentioned 2019 resolution was proposed by all the Consultative Parties to the Antarctic Treaty, with the exception of four States (Brazil, China, Ecuador and Russia). The last declaration, adopted in 2023, was proposed by the same Parties, except South Africa which
4.2.2 Other Cracks in the ATS
While territorial claims continue to haunt the ATS, other issues have also come to dominate the regime, ranging from a legal and institutional framework that does not create incentives for compliance; to potential deadlocks in certain bodies of the ATS that could threaten the whole system; to the challenge for the ATS to take on new issues and hence remain relevant for the future.
Since the inception of the ATS, States Parties have for instance been grappling with the question of monitoring and compliance. Monitoring mechanisms within the ATS mostly rely on Parties’ voluntary self-reporting. As stated in the Environmental Protocol, States Parties must inform each other of measures taken to comply with that instrument.113 While the Antarctic Treaty establishes an inspection scheme which enables Consultative Parties “to designate observers to carry out any inspection” “in order to promote the objectives and ensure the observance of the provisions of the present Treaty”,114 this mechanism has been – and still is – little used.115 Violations are even more seldom reported, let alone punished.116 In that respect, one must note the absence of a dedicated committee that would review States Parties’ compliance with the relevant rules – and, if needed, adopt facilitative or corrective measures in response to a violation. While this light monitoring and compliance framework might have been sufficient in the past, it could prove a weakness in the current period, which is characterised not only by increasing activities and regulations, but also increasing divergent interests and tensions within the ATS. Indeed, it could highlight governance difficulties within the ATS, and its ability to frame
Moreover, the issue of third States and their behaviour vis-à-vis the rules of the ATS remains crucial. Various theories and doctrines have been proposed, according to which the ATS could be, for instance, an objective regime, or that its rules shall be applied as lex specialis.117 Ultimately, though, Parties seem to recognise that compliance with the various instruments and the measures developed pursuant to them cannot be demanded of third States, and that the surest way to ensure it is to encourage such States to join the ATS.118 This policy of openness and inducement has worked relatively well, since it has in part reduced the tensions of the 1980s and 1990s. The Antarctic Treaty now counts 56 Parties, 29 of which having a privileged Consultative status. The same policy has enabled the CAMLR Convention to reach 37 Parties, 27 of which having a member’s status.
The increased number of Parties to the CAMLR Convention and evolution in the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) membership, however, has contributed to a host of other challenges which might well endanger the whole ATS. In particular, it has resulted in a certain shift in interests and subsequent polarisation of opinions. The focus increased, on the one hand, on the development of Southern Ocean’s fisheries and, on the other hand, on the process to designate marine protected area (MPA). In 2011, CCAMLR adopted Conservation Measure 91–04, which provided for the establishment of a MPA network. Despite such declared will, however, very little progress has been made. In addition to the 2009 South Orkney Islands South Shelf MPA,119 the Ross Sea region MPA was established in 2016,120 but not without difficulty. All other projects are currently under review,121 but it seems unlikely that the necessary consensus will be reached in the foreseeable future. Some States are accusing others of voluntarily slowing down this
Finally, Parties to the ATS also have difficulties embracing new issues. The increasing interest in bioprospecting, and its necessary regulation, is characteristic of these difficulties.124 This issue has been on ATCMs’ agenda for several years and a recommendation was issued as early as 2005,125 but discussions have stalled,126 and no concrete action has been taken to date. Similarly, and although the issue is not new, the increase of tourism in Antarctica is also an issue which the ATS has had trouble addressing. The sinking of a tourist ship in November 2007 highlighted the pollution risks that these activities represent for the Southern continent and its surrounding waters,127 without triggering further concrete action either. The ATS’ weak response to certain global issues,128 such as climate change, is also characteristic of this regime’s
5 Conclusion
The ATS owes its existence to the territorial claims of certain States during the first half of the 20th Century, and its successive evolutions cannot be analysed without bearing in mind the permanent search for a territorial compromise. The main pillars of the regime – science, peaceful use and environmental protection – were chosen and developed precisely because they reflected situational means of perpetuating this territorial status quo. Environmental protection was gradually developed within the ATS during a period when this concern developed on the international scene, through, for example, the publication of the Brundtland Report, or the adoption of the Rio Declaration. Negotiations of a mining regime for Antarctica coincided with strong external pressures on the ATS, and the subsequent adoption of the Protocol can therefore be seen as a response to these pressures.
The non-use measure contained in the Protocol has indeed acted as an effective stabiliser for the ATS. In 1991, the ATS had thus found a new breath. However, despite this effectiveness, the moratorium contains various grey areas, and the current or looming challenges for the ATS, whether real or perceived as such, represent a real threat to this stability.
The moratorium’s spatial application is a long-debated issue. Although it was regularly and eagerly dismissed as being a purely academic debate until recently, mineral discussions in various forums have given this issue renewed relevance. A further weakness stems from the grey areas which remain as to the moratorium’s material scope. In particular, no definition of ‘mineral resources activities’, ‘exploitation’, ‘exploration’, or ‘prospecting’ is provided and no clarification is given as to what amounts to scientific activities, which are permitted.
Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol) (adopted 4 October 1991, entered into force 14 January 1998) 2941 UNTS 5778.
Antarctic Treaty (Antarctic Treaty) (adopted 1 December 1959, entered into force 23 June 1961) 402 UNTS 71.
K. Dodds, The Antarctic: A Very Short Introduction (OUP 2012) 23 mentions that Maoris believed a white continent was lying south to current New Zealand long before Europeans first explored the area.
See eg E. J. Sahurie, The International Law of Antarctica (New Haven Press 1992) 171.
See eg R.-J. Dupuy, “Le Statut de l’Antarctique” (1958) 4 AFDI 196.
On the IGY as a founding myth, see S. V. Scott, “Ingenious and innocuous? Article IV of the Antarctic Treaty as imperialism” (2011) 1(1) The Polar Journal 51, 52.
A remarkable achievement in the face of increasing tensions between the Eastern and the Western Blocs, according to some authors. See eg W. Sullivan, The International Geophysical Year (Carnegie Endowment for International Peace 1959) 323.
Antarctic Treaty, art IX.
ATCM, “Agreed Measures for the Conservation of Antarctic Fauna and Flora” (adopted 1964, entered into force 1982), Recommendation III–VIII, ATCM III, 1964, Brussels.
But see A. Antonello, “Nature conservation and Antarctic diplomacy, 1959–1964” (2014) 4(2) The Polar Journal 335.
Convention for the Conservation of Antarctic Seals (CCAS) (adopted 1 June 1972, entered into force 11 March 1978) 1080 UNTS 175.
Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention) (adopted 29 May 1980, entered into force 7 April 1982) 1329 UNTS 47.
See eg CAMLR Convention, art I(1) and I(3).
G. H. Brundtland, “Our Common Future” Report of the World Commission on Environment and Development (20 March 1987) UN Doc A/42/427.
United Nations, “Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992” (1992) UN Doc A/CONF.151/26 (Vol I).
On these instruments’ focus on resource management, see A. Howkins, Frozen Empires: An Environmental History of the Antarctic Peninsula (OUP 2017) 174; and A. Antonello, The Greening of Antarctica: Assembling an International Environment (OUP 2019) 75.
See eg P. C. Jessup, “Sovereignty in Antarctica” (1947) 41(1) The American Journal of International Law 117, 118; H. J. Taubenfeld, “A Treaty for Antarctica” (1961) 33 International Conciliation 245, 263; and R. L. Johnstone and S. Joblin, “Non-Living Resources at the Poles” in K. Scott and D. Vanderzwaag (eds), Research Handbook on Polar Law (Edward Elgar Publishing 2020) 250.
See eg ATCM, “Antarctic mineral resources”, Recommendation IX-1, ATCM IX, 1977, London.
Convention on the Regulation of Antarctic Mineral Resource Activities (adopted 2 June 1988, not in force) (1988) 27 ILM 868 (CRAMRA).
CRAMRA, art 62(1). The mention of “all the States necessary in order to establish all of the institutions of the Convention in respect of every area of Antarctica” necessarily refers to all Claimants. A clarification can also be found in the Final Act of the Negotiating Conference. See Final Report, SATCM IV-12, 1989, Wellington, 41.
ATCM, “Comprehensive Measures for the Protection of the Antarctic Environment and Dependent and Associated Ecosystems”, Recommendation XV-1, ATCM XV, 1989, Paris.
Interim report, SATCM XI-1, 1990, Viña del Mar, 28.
ATCM (n 21).
C. Redgwell, “Environmental Protection in Antarctica: The 1991 Protocol” (1994) 43(3) ICLQ 599, 604.
See for instance Peter Beck, who focuses on critics before the UNGA. Although he acknowledges “a loss of momentum of the critical campaign” following the Protocol’s adoption, he also highlights deeper issues remaining about “the nature and extent of the UN’s future role in Antarctic affairs”. P. J. Beck, “Twenty years on: the UN and the ‘Question of Antarctica” 1983–2003’ (2004) 40 Polar Record 205, 208–209.
Environmental Protocol, art 2.
ibid arts 3, 8, and Annex I.
See eg H. Scales, The Brilliant Abyss (Bloomsbury Sigma 2021) 235.
J. L. Mero, The Mineral Resources of the Sea (Elsevier 1965).
See eg Department of International Economic and Social Affairs, “Sea-Bed Mineral Resource Development: Recent Activities of the International Consortia” (1980) UN Doc ST/ESA/107.
See eg UNGA, “Report of the United Nations Conference on the Human Environment” (4 October 1981) UN Doc A/35/416.
UNGA, “Final Declaration, 7th Meeting of the Non-Aligned States, Jakarta” (1983) UN Doc A/38/132-S/15675, Annex, section III, paras 122–123.
See eg A. De Marffy, “L’Antarctique: Quatre ans de débat à l’ONU” (1987) 2 Espaces et ressources maritimes 3; C. C. Joyner, Governing the Frozen Commons (University of South California Press 1998) 235.
On this criticism, see for instance D. R. Rothwell, “The IPY and the Antarctic Treaty System: Reflections 50 Years Later” in J. Shadian and M. Tennberg (eds), Legacies and Change in Polar Sciences (Routledge 2009) 125, 131; or J. Verbitsky, “Just transitions and a contested space: Antarctica and the Global South” (2014) 4(2) The Polar Journal 319, 323.
Further amplified by a US geological survey suggesting the presence of oil and gas in commercial quantities in Antarctica. See Dodds (n 3) 120.
See eg R. A. Herr, “The changing roles of non-governmental organisations in the Antarctic Treaty System” in O. S. Stokke and D. Vidas (eds), Governing the Antarctic – The Effectiveness and legitimacy of the Antarctic Treaty System (CUP 1996) 91, 98.
See for instance J. N. Barnes, “Environmental protection and the future of the Antarctic: new approaches and perspectives are necessary” in G. Triggs (ed), The Antarctic Treaty Regime: Law, Environment and Resources (CUP 1987) 150; or R. Davis, “The Durability of the ‘Antarctic Model’ and Southern Ocean Governance” in T. Stephens and D.Vanderzwaag (eds), Polar oceans governance in an era of environmental change (Edward Elgar Publishing 2014) 287, 303.
Brundtland (n 14) para 81.
D. Abdel-Motaal, Antarctica: the Battle for the Seventh Continent (ABC-CLIO 2016) 104; See also A. Gillepsie, “Antarctica: Environmentalist’s victory or hidden agendas?” (1993) 11 Research Papers in Law – University of Nottingham 1, 18.
See eg A. Brown, “New Proposal: The Natural Park” in J. Verhoeven, P. Sands and M. Bruce (eds), The Antarctic Environment and International Law (Graham Trotman 1990) 97; or C. Redgwell, “Antarctica – wilderness park or Eldorado postponed?” (1992) 1(1) Environmental Politics 137, 139.
A. Bergin, “The Politics of Antarctic Minerals: The Greening of white Australia” (1991) 26(2) Australian Journal of Political Science 216, 221.
S. Blay and B. M. Tsamenyi, “Australia and the Convention for the Regulation of Antarctic Mineral Resource Activities (CRAMRA)” (1990) 26 Polar Record 195, 198.
See C. Sulikovski, “The French Connection: the role of France in the Antarctic Treaty System” in A.-M. Brady (ed), The Emerging Politics of Antarctica (Routledge 2012) 173; or J. Martin-Nielsen, “Undecided dreams: France in the Antarctic, 1840–2021” (2021) 57 Polar Record e32, 11.
L. M. Elliott, International Environmental Politics – Protecting the Antarctic (St Martin’s Press 1992) 168.
Abdel-Motaal (n 39) 108.
See eg Gillepsie (n 39) 18.
CRAMRA, art 29(2). See also C. C. Joyner, “The Evolving Antarctic Minerals Regime” (1988) 19 Ocean Development & International Law 73, 79.
CRAMRA, art 32.
ibid art 37(1).
ibid art 37(2).
C. van der Lugt, “An international environmental regime for the Antarctic: critical investigations” (1997) 33 Polar Record 223, 224.
See Redgwell (n 24) 601.
See eg K. R. Wood, “The Uncertain Fate of the Madrid Protocol to the Antarctic Treaty in the Maritime Area” (2003) 34 Ocean Development & International Law 139.
Environmental Protocol, art 1.
Antarctic Treaty, art VI.
See for instance D. R. Rothwell, “Polar environmental protection and international law: the 1991 Antarctic Protocol” (2000) 11(3) European Journal of International Law 591, 595–596; or D. Vidas, “The Protocol on Environmental Protection to the Antarctic Treaty: A Ten-Year Review” (2002) 10 Yearbook of International Cooperation on Environment and Development 51, 52.
This issue has been addressed by numerous authors. See, among others, A. Boyle, “Globalism and regionalism in the protection of the marine environment” in D. Vidas (ed), Protecting the Polar Marine Environment (CUP 2000) 19; J. Crawford, “The Antarctic Treaty after 50 years” in D. French, M. Saul and N. D. White (eds), International Law and Dispute Settlement, New Problems and Techniques (Hart Publishing 2012) 271; D. R. Rothwell, “Polar Oceans Governance in the 21st Century” (2012) 26 Ocean Yearbook 343; G. Triggs, “The Antarctic Treaty System: some jurisdictional problems” in G. Triggs (ed), The Antarctic Treaty Regime: Law, Environment and Resources (CUP 1987) 88; or P. Vigni, “The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area” (2000) 4 Max Planck Yearbook of United Nations Law 481.
See eg T. Stephens, “An icy reception or a warm embrace? The Antarctic Treaty System and the international law of the sea” in A. D. Hemmings, K. Dodds and P. Roberts (eds), Handbook on the Politics of Antarctica (Edward Elgar Publishing 2017) 439; or E. J. Molenaar, A. G. Oude Elferink and D. R. Rothwell, “Interactions between Global and Regional Regimes: Trends and Prospects” in E. J. Molenaar, A. G. Oude Elferink and D. R. Rothwell (eds), The Law of the Sea and the Polar Regions, Interactions between Global and Regional Regimes (Martinus Nijhoff Publishers 2013) 389.
Molenaar, Oude Elferink and Rothwell (n 58) 394.
CRAMRA, art 5(2).
ibid art 5(3).
Environmental Protocol, art 23(1).
ibid art 25(2).
ibid art 25(5)(a).
ibid art 25(3).
ibid art 25(5)(b).
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Case 17, 2011, 10, para 98.
CRAMRA, art 1(10).
United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3.
ITLOS Advisory opinion 2011 (n 67) para 82 and 87. The Seabed Disputes Chamber especially referred to UNCLOS art 145(1), UNCLOS Annex III art 17(2)(f), and UNCLOS Annex IV art 1(1). See also Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (22 July 2013) ISBA/19/C/17, regulation 1(3)(a).
CRAMRA, art 1(9).
ITLOS Advisory opinion 2011 (n 67) para 82.
See eg Exploration regulations for polymetallic nodules (n 70) reg 1(3)(b).
CRAMRA, art 1(8).
ibid.
UNCLOS, Annex III art 2(2); and Exploration regulations for polymetallic nodules (n 70) reg 2(4).
Exploration regulations for polymetallic nodules (n 70) reg 1(3)(e).
ITLOS Advisory opinion 2011 (n 67) para 98.
On the link between scientific research and economic activities, see A. D. Nuttall, “National Antarctic programmes – The politics-science interface” in M. Nuttall, T. R. Christensen and M. J. Siegert (eds), The Routledge Handbook of the Polar Regions (Routledge 2018) 294, 294.
CRAMRA, art 29(3)(a).
ISA, “Draft regulations on exploitation of Mineral resources in the Area. Consolidated text” (2024) ISBA/29/C/CRP.1, reg 3(f)(v).
UNCLOS, art 249(2).
ibid art 246(5)(b).
ibid art 246(5)(c).
See P. De Cesari, “Scientific Research in Antarctica – New Developments” in F. Francioni and T. Scovazzi (eds), International Law for Antarctica (Kluwer Law International 1996) 413, 420.
See, for instance, debates and statements on Russia’s intentions, by some Western governments and scholars: P. Carter, A. Brady and E. Pavlov, “Russia’s “smart power” foreign policy and Antarctica” (2016) 6(2) The Polar Journal 259; but see also scholars criticising what they termed “polar orientalism”: K. Dodds and M. Nuttall, The scramble for the poles: the geopolitics of the Arctic and Antarctic (Polity Press 2016) 145.
For opposing interpretations, see for instance A. J. Tony Press, “The Antarctic Treaty System: Future Mining Faces Many Mathematical Challenges” (2015) 7(1) The Yearbook of Polar Law 623; and L. V. Ferrada, “Five factors that will decide the future of Antarctica” (2018) 8 The Polar Journal 84, 100.
Final Act, SATCM XI-4, 1991, Madrid, 109.
Carter, Brady and Pavlov (n 86) 266.
UNGA Res A/RES/46/41/A-B (1991), GAOR 46th Session Supp 49, para 7.
ibid para 6.
UNGA Res A/RES/49/80 (1994) GAOR 49th Session Supp 49, para 8.
UNGA Res A/RES/57/51 (2002) GAOR 57th Session Supp 49, preamble, para 6.
UNGA Res A/RES/60/47 (2006) GAOR 60th Session Supp 49, para 5. See also Beck (n 25).
On these measures, see for instance Davis (n 37) 287.
Environmental Protocol, art 2.
See eg T. Stephens, “Polar continental shelves: Australian and Canadian challenges and opportunities” in T. Stephens and D. Vanderzwaag (eds), Polar Oceans Governance in an Era of Environmental Change (Edward Elgar Publishing 2014) 146, 149.
With the noticeable exception of Argentina, all Claimants referred to “the circumstances of the area south of 60 degrees South latitude and the special legal and political status of Antarctica under the provisions of the Antarctic Treaty” and requested the Commission not to take any action for the time being. See eg UN, “Continental Shelf Notification by Chile” (2002) CLCS.89.2022.LOS; See also A. D. Hemmings and T. Stephens, “The extended continental shelves of sub-Antarctic Islands: implications for Antarctic governance” (2010) 46(4) Polar Record 312, 316.
SPLOS/72 (2001).
CLCS, “Rules of Procedure of the Commission on the Limits of the Continental Shelf” (2008) CLCS/40/REV.1, Annex I para 5.
Final Report, ATCM XXIV, 2001, St. Petersburg, 126.
Final Report, ATCM XXV, 2002, Warsaw, 125.
Final Report, ATCM XXXIV, 2011, Buenos Aires, 61.
WP057, ATCM XLII, 2019, Prague.
IP175, ATCM XL, 2017, Beijing.
A. Hemmings for instance mentions a general “resurgence of earth sciences” in Antarctica, and suspects that Russia and China could represent “convenient stalking horses, behind which the generic interests hope to sit without attracting attention”. See A. D. Hemmings, “Antarctic politics in a transforming global geopolitics” in A. D. Hemmings, K. Dodds and P. Roberts (eds), Handbook on the Politics of Antarctica (Edward Elgar Publishing 2017) 507, 515; see also A. D. Hemmings, “Considerable values in Antarctica” (2012) 2 The Polar Journal 139, 145.
See J. Jabour, who recalls that the “Protocol does not preclude scientific research” and considers that “[t]he geological structure of Antarctica is just as interesting to study as its biological aspects, so to accuse parties of ‘prospecting’ is pointless when such research is permitted” (J. Jabour, “Why has there been a ‘Long Peace’ in Antarctica” (2015) 7(1) The Yearbook of Polar Law 632, 642–643). Some authors are more suspicious. See for instance M. Boulègue, “Five Eyes strategic interests in Antarctica: implications of contemporary Russian and Chinese strategy” (2023) 13(1) The Polar Journal 71, 75; or N. Liu and C. Jiliang, “China and the Future of the Antarctic Mining Ban” (The Interpreter, Lowy Institute, 8 October 2021), available at <https://www.lowyinstitute.org/the-interpreter/china-and-future-antarctic-mining-ban> accessed 28 July 2024. Others, while not being as adamant, admit that doubts can be raised as to the future of Antarctic minerals. See generally Johnstone and Joblin (n 17) 269; A. Brady, “The past in the present: Antarctica in China’s national narrative” in A. D. Hemmings, K. Dodds and P. Roberts (eds), Handbook on the Politics of Antarctica (Edward Elgar Publishing 2017) 284, 297; or S. Chaturvedi, “The future of Antarctica – Minerals, bioprospecting, and fisheries” in M. Nuttall, T. R. Christensen and M. J. Siegert (eds), The Routledge Handbook of the Polar Regions (Routledge 2018) 403, 411.
ATCM, “Confirming ongoing commitment to the prohibition on Antarctic mineral resource activities, other than for scientific research; support for the Antarctic Mining Ban”, Resolution 6 (2016), ATCM XXXIX, 2016, Santiago.
WP055, ATCM XLV, 2023, Helsinki.
WP038, ATCM XXXIX, 2016, Santiago.
ibid.
This position is also upheld by various authors, whose affiliation with governmental institutions is however established. See for instance Y. Frénot, “Le système du Traité sur l’Antarctique : une gouvernance unique pour la paix, la science et la protection de l’environnement” (2019) 123(3) Stratégique 61; or Tony Press (n 87) 623.
Environmental Protocol, art 13.
Antarctic Treaty, art VII.
In 2022–2023, for instance, only one inspection has been reported, by the United Kingdom, on a UK-managed site, while Sune Tamm highlighted that prior to the Environmental Protocol’s entry into force, the United States realised ten inspections, making it “the most active party in inspecting during that period”. See IP046, ATCM XLV, 2023, Helsinki; and S. Tamm, “Peace vs. compliance in Antarctica: inspections and the environment” (2018) 8(2) The Polar Journal 333, 340. Some authors noted that the creation of an inspection scheme was nonetheless an important achievement in the Antarctic Treaty’s implementation context. See eg J. Jabour, “The Utility of Official Antarctic Inspections: Symbolism without Sanction” in D. Liggett and A. D. Hemmings (eds), Exploring Antarctic Values, (University of Canterbury Press 2013) 90, 91.
K. Bastmeijer, “Introduction: The Madrid Protocol 1998–2018. The need to address ‘the Success Syndrome’” (2018) 8(2) The Polar Journal 230, 236.
See eg D. R. Rothwell, “The polar regions and the law of the sea” in R. C. Powell and K. Dodds (eds), Polar Geopolitics? Knowledges, Resources and Legal Regimes (Edward Elgar Publishing 2014) 19, 26; or B. Simma “The Antarctic Treaty as a Treaty Creating an ‘objective Regime’” (1985–6) 19 Cornell International Law Journal 189.
See eg Final Report, ATCM IX, 1977, London, para 14.
CCAMLR, “Conservation measure 91–03 (2009) Protection of the South Orkney Islands southern shelf” (2009) CM 91–03.
CCAMLR, “Conservation measure 91–05 (2016) Ross Sea region marine protected area” (2016) CM 91–05.
See the discussion conducted by Teschke and Konijnenberg in chapter 12 of this volume.
See H. Osterblom and O. Olsson, “CCAMLR – an ecosystem approach to the Southern Ocean in the Anthropocene” in A. D Hemmings, K. Dodds and P. Roberts (eds), Handbook on the Politics of Antarctica (Edward Elgar Publishing 2017) 408, 415.
This is not uncontroversial either, as ‘conservationists’ States are also pursuing their own national agenda. Claimants, for instance, have been accused of using conservation policies to uphold their territorial claims. See eg R. L. Johnstone, “Colonisation at the Poles: A Story of Ineffective Occupation” (2022) 13(1) The Yearbook of Polar Law 93.
C. C. Joyner, “Potential Challenges to the Antarctic Treaty” in P. A. Berkman et al (eds), Science Diplomacy Antarctica, Science, and the Governance of International Spaces (Smithsonian Institution Scholarly Press 2011) 97.
ATCM, “Biological prospecting in Antarctica”, Resolution 7 (2005), ATCM XXVIII, 2005, Stockholm.
See eg J. N. Barnes, “The Antarctic Treaty System: Perspectives of Environmental Nongovernmental Organizations on Addressing Key Issues” in P. A. Berkman et al (eds), Science Diplomacy (Smithsonian Institution Scholarly Press 2011) 277, 279.
See eg D. R. Rothwell, “Law enforcement in Antarctica” in A. D. Hemmings, D. R. Rothwell and K. N. Scott (eds), Antarctic Security in the Twenty-First Century (Routledge 2012) 135.
On the ATS’ difficulties to grasp new issues, see M. Zhang, M. Haward and J. McGee, “Marine plastic pollution in the polar south: Responses from Antarctic Treaty System” (2020) 56 Polar Record e36.
See eg S. Chaturvedi, “The Antarctic climate security dilemma and the future of Antarctic governance” in A. D. Hemmings, D. R. Rothwell and K. N. Scott (eds), Antarctic Security in the Twenty-First Century (Routledge 2012) 257.
For a different perspective on future mining probabilities, see Tony Press (n 87) 623.
At the last-minute request of the United States, to which their approval of the Protocol was conditioned. See Gillepsie (n 39) 23; and Redgwell (n 24) 609.