Awaiting a Review: The Antarctica Treaty System

Antarctic Treaty System (ATS) regulates international relations with respect to Antarctica. The ATS includes ‘The Antarctic Treaty’, the Madrid Protocol and other mechanisms that are devised to be reviewed after a period of 50 years, as requisitioned by a Consultative Party. In 2048, the ATS will undergo a review that could have significant implications on territorial claims, resources and the environment of the continent.

Antarctica, the fifth-largest continent on the planet, has nearly 98 per cent of its vast 14 million sq km covered by thick ice sheets that hold 75 per cent of the world's freshwater. The Antarctic's latitudinal range spans from the Antarctic Circle (66° 33′ 39″ south of the equator) to the South Pole, encircled by the Southern Ocean, also referred to as the Antarctic Ocean. It is the sole continent that remains untainted by the march of human civilisation (with the exception of over 50 research stations strewn across the continent). The two per cent of ice-free land on the continent exposes rocks that throw light on the geological evolution of the continent. 

A cold desert in nature, Antarctica has limited flora such as mosses, liverworts, lichens, Antarctican Hair Grass and Antarctican Pearlwort, and distinctive fauna such as the Royal Albatross, Crabeater Seal, Penguins, Ross Seals, Snow Petrels and Krill, which are unique to its distinctive geographical conditions (NCPOR, 2023). Additionally, the continent experiences severe cold and extreme dryness, with high-density ‘Katabatic winds’ blowing across the landmass (IceCube Neutrino Observatory, 2023). Antarctica is home to diverse marine life, with Krill serving as a crucial keystone species in the marine food chain (CCAMLR, 2018).

Governance in the Antarctic:  The Antarctic Treaty System

Antarctic Treaty System (ATS) regulates international relations with respect to Antarctica. The ATS includes ‘The Antarctic Treaty’ and protocols that ensure that ‘Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord in the interests of all mankind’ (Scientific Committee on Antarctic Research , 2023).

Signed on December 1, 1959 by 12 countries, this Treaty has now been acceded by total 56 members. Parties to the Treaty have been categorised into Consultative Parties with voting power and Non-Consultative Parties without voting power. The Consultative Party status is given to the countries that not only accede to the Treaty but also conduct substantial research activities in the Antarctic (Secretariat of the Antarctic Treaty, 2023). Currently, 29 countries have the Consultative Party status and 27 countries have Non-Consultative Party status. Consultative Party status would play a critical role in decision-making for the countries at the time of review of the Treaty. India became a signatory to the treaty in 1983 and was awarded a Consultative Party Status on September 12, 1983 (Press Information Bureau, 2022).

The Treaty has 14 articles that govern different aspects of activities in Antarctica (land and ice shelves excluding high seas) such as scientific investigation; exchange of scientific personnel, observations; status quo on claims of territorial sovereignty; prohibition of nuclear weapons and disposal of radioactive waste; geographical extent; national observers, aerial observation, expeditions; disputes; jurisdiction; and  preservation and conservation of living resources, scientific stations (Secretariat of the Antarctic Treaty, 2023).

Additionally, the ATS includes the following protocols:

(a)   ‘Environmental Protection to the Antarctic Treaty’ also known as Madrid Protocol. The Protocol has six annexes with provisions for the protection of the Antarctic ecosystem: Environment Impact Assessment, Conservation of Antarctic Fauna and Flora, Waste Disposal and Waste Management, Prevention of Marine Pollution, Area Protection and Management, and Liability Arising from Environmental Emergencies Stations (Secretariat of the Antarctic Treaty, 2023);

(b)  Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR); and

(c)   Convention for the Conservation of Antarctic Seal. 

2048 Review of the Antarctic Treaty System

The Antarctic Treaty, Madrid Protocol and other mechanisms are devised to be reviewed after a certain period of time, as requisitioned by a Consultative Party. The Antarctic Treaty was first reviewed in 1991 after being signed in 1959 as per the provisions contained under section 2(a) of Article XII. On its revision, the Madrid Protocol was signed in 1998 which explicitly banned commercial mining and included standards for environmental protection, conservation of biodiversity and management of the continent (Andrews, 2014). A built-in mechanism within the Protocol has devised modification or amendment (review) of the Treaty after a period of 50 years, i.e., in 2048, subject to it being raised by a Consultative Party (Clause 3 of Article 25).

Implications of Review on Territorial Claims 

The Antarctic Treaty under Article IV freezes the territorial claims of any nation over Antarctica (Secretariat of the Antarctic Treaty, 2023). It states clearly that “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” (Secretariat of the Antarctic Treaty, 2023).

Experts warn that countries can reassert claims, with new fault lines appearing if the Antarctic Treaty is brought up for discussion in 2048 and modified. This can prove to be the point of conflict among nations. For instance, out of first 12 signatories, seven nations claimed the territory of the Antarctic including the overlaps in their extents. For example, Britain held claims based on their discovery of Falkland Islands in 1690, biogeographically a part of the Antarctic Zone (Steinbrunner et al., 2019; Jonsdottir, 2007). Territorial claims of Argentina over an overlap led to the conflict and violence at Hope Bay in 1952, prior to the signing of the Treaty (Steinbrunner et al., 2019).

The other probable reason for conflict may be the permanent stationing of research bases with embedded human presence. (Steinbrunner et al., 2019). Conventionally, International Law outlines modes of acquisition of sovereignty through—Terra Nullius (establishing control over an unadministered territory); Prescription (maintaining effective control for a long time); Cession or Accretion (Burghardt, 1973). Claimant States with stations in Antarctica have extended laws, rules and jurisdiction over the areas within their claims (Conforti, 1986). Although the Treaty has maintained the status quo on territorial claims, the 2048 Treaty review provides an opportunity to restrain the traditional Claimant States and Non-Claimant States from seeking territorial rights and ensure that Antarctica remains a ‘Global Common’.

Implications of Review on Resources

The extent of the Antarctic region is more than the combined area of the U.S. and Mexico with innumerable natural resources (NASA, 2014). There have been discoveries of minerals such as coal, oil, iron ore, gold, and copper in the Ross Sea area (Steinbrunner et al., 2019). There are estimates that Antarctica holds 513 billion barrels of oil and gas equivalent (Watkins, 2020). This makes Antarctica a potential storehouse of large minerals and oil reserves (nzherald.co.nz, 2023). Tapping of these resources can be a potential source of disagreements during the review of the Treaty.

The Madrid Protocol has banned mining and resource exploitation in the Antarctic (federal public service, 2016). Review and modifications to the Treaty can bring in the commercial interests of nations in conflict with the maintenance of the sanctity of this pristine continent.   

Implications of Review on Environment

Antarctica has lost an average of around 150 billion tonnes of ice mass per year since 2002 (NASA, 2023). It is reported to be the hotspot of global warming as temperature in Antarctica is on the rise much faster than the global average (Steinbrunner et al., 2019).

Global warming and, consequently, the melting of glaciers and sea ice combined with new technological developments can uncover a huge number of resources beneath this cover. It can create unprecedented competition for resource exploration and extraction. It also has implications beyond its borders, as the wide cover of ice holds a vast amount of water. With increased temperature, the melting ice can cause a significant rise in sea level. 

Implications on the Regime Itself

The Treaty's governance system, consisting of Consultative and Non-Consultative Party status, concentrates decision-making power in the hands of a limited number of countries, resulting in an exclusive governance structure. With only 29 out of the 56 member countries granted Consultative Party status, it is imperative to reform the ATS to enhance its inclusivity.

It is also imperative to enhance the inadequate representation of developing countries from Africa, the Middle East, and even South Asia in the ATS (Yermakova, 2021). Therefore, any review of the Treaty and its protocol should prioritise both moral and practical considerations to ensure an inclusive governance system that can be sustained in the long term. This is particularly important for Antarctica, as such reform will help preserve its pristine condition.

Way Forward

The year 2048 bestows upon all the stakeholders, the responsibility to decide on the geopolitical and climatic stability in Antarctica. Human greed knows no bounds. A deleterious impact on one corner of the world can have consequences in all other parts. It is therefore important for all stakeholders come to a consensus on ensuring a sustainable future for Antarctica.

References

Andrews, C. (2014). Antarctica: How Long Can It Remain "Unowned"? https://www.nathab.com/blog/antarctica-how-long-can-it-remain-unowned/

Barrett, J. (2015). International Governance of the Antarctic – Participation, Transparency and Legitimacy. The Yearbook of Polar Law 7, no. 1 (2015): 448–500.

Burghardt, A. F. (1973). The Bases of Territorial Claims. Geographical Review, 225-245.

Buxton, C. (2004). Property in Outer Space: The Common Heritage of Mankind Principle vs. the First in Time, First in Right, Rule of Property. Journal of Air Law and Commerce, 689-707.

CCAMLR (2018). Krill fisheries and sustainability https://www.ccamlr.org/en/fisheries/krill-fisheries-and-sustainability

Conforti, Benedetto (1986) "Territorial Claims in Antarctica: A Modern Way to Deal with an Old Problem," Cornell International Law Journal: Vol. 19: Iss. 2, Article 5 federal public service. (2016, 1 12). The Madrid Protocol protects the Antarctic Environment. Retrieved from federal public service: https://www.health.belgium.be/en/madrid-protocol-protects-antarctic-environment

IceCube Neutrino Observatory. (2023). Antarctic Weather. Observatory: https://icecube.wisc.edu/pole/weather/

Jónsdóttir, I. (2007). "Botany during the Swedish Antarctic Expedition 1901–1903". In Jorge Rabassa; Maria Laura Borla (eds.). Antarctic Peninsula and Tierra del Fuego. Leiden, Netherlands: Taylor & Francis. 

NASA (2014). Compare the Size of Antarctica to the Continental United States. https://www.nasa.gov/mission_pages/icebridge/multimedia/fall11/antarctica-US.html

NASA (2023). Ice Sheets https://climate.nasa.gov/vital-signs/ice-sheets/#:~:text=Antarctica%20is%20losing%20ice%20mass,adding%20to%20sea%20level%20rise.

NCPOR (2023). https://ncpor.res.in/antarcticas/display/367-about-antarctica. https://ncpor.res.in/antarcticas/display/367-about-antarctica

nzherald.co.nz (2023). Mining threat could increase for Antarctica, says expert. https://www.nzherald.co.nz/nz/mining-threat-could-increase-for-antarctica-says-expert/3RYQ73MJKAN5ZHAVM2HBM6ADLA/?c_id=1&objectid=10835056

Press Information Bureau (2022). Lok Sabha passes the Indian Antarctic Bill, 2022. https://www.pib.gov.in/PressReleasePage.aspx?PRID=1843988

Scientific Committee on Antarctic Research (2023). The Antarctic Treaty System. https://www.scar.org/policy/antarctic-treaty-system/

Secretariat of the Antarctic Treaty. (2023). Key documents of the Antarctic Treaty System. https://www.ats.aq/e/key-documents.html

Secretariat of the Antarctic Treaty. (2023). The Antarctic Treaty System . https://www.ats.aq/e/antarctictreaty.html

Steinbrunner A., Ran S., Macherey N. (2019). Governance of Antarctica Post-2048: An Argument for Non-Appropriation, Distributive Justice, and Common Heritage of Mankind: https://www.researchgate.net/publication/336987772_Governance_of_Antarctica_Post-2048_An_Argument_for_Non-Appropriation_Distributive_Justice_and_Common_Heritage_of_Mankind 

Watkins, S. (2020, March 16). Russia Makes Move On Antarctica’s 513 Billion Barrels Of Oil. https://oilprice.com/Energy/Crude-Oil/Russia-Makes-Move-On-Antarcticas-513-Billion-Barrels-Of-Oil.html

Yermakova, Y. (2021). Legitimacy of the Antarctic Treaty System: is it time for a reform? The Polar Journal, 342-359.