Institutional Developments within the Antarctic Treaty System

International and Comparative Law Quarterly

Volumn 52, Issue 2, 2003, Pages 473-487

  Scott, Karen ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

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EID: 34248063121     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1093/iclq/52.2.473     Document Type: Article

References (127)

1. (Washington) in force 1961; 402 UNTS 71
2. Decision XXIV-1 (2001) reproduced in the Final Report of the Twenty-Fourth Antarctic Treaty Consultative Meeting, St. Petersburg, Russian Federation, 9–20 July 2001 (hereinafter Report of the Twenty-Fourth ATCM)
3. Arthur Watts, International Law and the Antarctic Treaty System (Cambridge: Grotius Publications Ltd, 1992), at 12
4. See the ATCM XXIV Declaration contained in Appendix I of the Final Report of the Twenty-Fourth ATCM
5. As a result of Antarctica's ice sheet the continent has an average elevation of 5,550 feet. Known as a white desert, Antarctica receives less rainfall than the Sahara Desert (although its icecap contains 75 per cent of the world's fresh water supplies). The lowest temperature on Earth ever recorded (-128.6 °F) was measured in 1983 at Vostok Research Station in the Eastern Antarctic interior. See Christopher C Joyner, Governing the Frozen Commons: The Antarctic Regime and Environmental Protection (Columbia: University of South Carolina Press, 1998), at 2–7
6. On the 1959 Antarctic Treaty see John Hanessian, ‘The Antarctic Treaty 1959’ (1960) 9 ICLQ 436
7. Robert D Hayton, ‘The Antarctic Settlement of 1959’ (1960) 54 American Journal of International Law 349
8. Watts, American Journal of International Law, n 3, ch 2
9. Argentina, Chile, and Great Britain claim an overlapping section of the West Peninsular of Antarctica. Claims are also maintained by Australia, France, New Zealand, and Norway. The area between 90° west and 150° west is unclaimed. The USA and Russia have reserved a right to make a future claim to territory. See generally, FM Auburn, Antarctic Law and Politics (London: C Hurst & Co, 1982), chs 2 and 3
10. Maria Pia Casarini, ‘Activities in Antarctica Before the Conclusion of the Antarctic Treaty’, in Francioni and Scovazzi (eds), International Law for Antarctica, 2nd edn (The Hague: Kluwer Law International, 1996), 627
11. Olva Schram Stokke and Davor Divas ‘Conclusions’, in Stokke and Vidas (eds), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (Cambridge: Cambridge University Press, 1996), 432 at 443
12. The term ‘Antarctic Treaty System’ is used to describe the 1959 Antarctic Treaty plus those measures concluded by the ATCPs under Art IX of the Treaty. Although these instruments may include Treaties, Measures, Decisions and Recommendations (on which see below at n 34 and accompanying text), the term will be used here as a reference to the Antarctic Treaty and its additional treaty-based components. On the Antarctic regime as a ‘system’ see Alfred Van der Essen, ‘The Origin of the Antarctic System’, in Francioni and Scovazzi (eds), International Law for Antarctica, 2nd edn (The Hague: Kluwer Law International, 1996), 17 at 25–9;
13. Davor Vidas, ‘The Antarctic Treaty System in the International Community: an Overview’, in Stokke and Vidas International Law for Antarctica, 35
14. In force 1978. 11 ILM (1972), 251
15. In force 1982. 19 ILM (1980), 841.
16. For a recent assessment of CCAMLR see Erik Jaap Molenaar, ‘CCAMLR and Southern Ocean Fisheries’ (2001) 16(3) International Journal of Marine and Coastal Law 465
17. 27 ILM (1988), 868. CRAMRA has not entered into force, and, in the light of the support for the 1991 Environmental Protocol, is unlikely to do so in the near future.
18. See Donald R Rothwell, ‘The Antarctic Treaty System: Resource Development, Environmental Protection or Disintegration?’ (1990) 43(3) Arctic 284.
19. However, since the prospect of mining in Antarctica is not permanently precluded under the Environmental Protocol, (the prohibition under Art 7 of the Environmental Protocol is subject to a 50-year review under Art 25(2)), CRAMRA should not be entirely discarded. A condition for the lifting of the mining ban is that a mineral resource regime should be operational (Art 25(5)(a) Environmental Protocol 1991). On the prospects and implications of Antarctic mining see David W Floren, ‘Antarctic Mining Regimes: An Appreciation of the Attainable’ (2001) 16 Journal of Environmental Law and Litigation 467
20. Joseph J Ward, ‘Black Gold in a White Wilderness—Antarctic Oil: The Past, Present and Potential of a Region in Need of Sovereign Environmental Stewardship’ (1998) 13 Journal of Land Use and Environmental Law 363
21. In force 1998. 30 ILM (1991), 1461.
22. See generally SK in Blay, ‘New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol’ (1992) 86 American Journal of International Law 377
23. Catherine Redgwell, ‘Environmental Protection in Antarctica: The 1991 Protocol’ (1994) 43 ICLQ 599
24. Donald R Rothwell, ‘Polar Environmental Protection and International Law: The 1991 Antarctic Protocol’ (2000) 11 European Journal of International Law 591
25. Jorge Berguño, ‘Institutional Issues for the Antarctic Treaty System with the Protocol in Force: An Overview’, in Davor Vidas (ed), Implementing the Environmental Protocol Regime for the Antarctic (Dordrecht: Kluwer Academic Publishers, 2002), 93 at 96.
26. See also Implementing the Environmental Protocol Regime for the Antarctic, n 12 at 51
27. Berguño, in Implementing the Environmental Protocol Regime for the Antarctic.
28. On the application of Common Heritage of Mankind to the Antarctic see Sudhir K Chopra, ‘Antarctica as a Commons Regime: A Conceptual Framework for Co-operation and Coexistence’, in Joyner and Chopra (eds), The Antarctic Legal Regime (Dordrecht: Martinus Nijhoff Publishers, 1988), 163
29. Ellen Tenenbaum, ‘A World Park in Antarctic: The Common Heritage of Mankind’ (1990) 10 Virginia Environmental Law Journal 109
30. A/RES/38/77 See Peter J Beck, ‘Antarctica: A Case for the UN?’ The World Today (Apr 1984) 165
31. Hayashi, ‘The Antarctica Question in the United Nations’ (1986) 19 Cornell International Law Journal 275. UN trusteeship of Antarctica was not of course a new idea, having been suggested as long ago as 1948 by the US and again in 1956 by New Zealand.
32. See Hanessian, Cornell International Law Journal, n 7 at 437
33. and C Wilfred Jenks, The Common Law of Mankind (London: Stevens and Sons Ltd, 1958), at 367
34. In 1983 Recommendation XII-6 expanded the circulation of documents to Antarctic Treaty Parties other than ATCPs, the Secretary General of the United Nations and other appropriate specialised agencies. From the mid-1980s onwards the ATCM meetings permitted non-ATCP state and certain NGO observers. The current Revised rules of Procedure (1997) (attached to Decision XXI-1) allows representation of the CCAMLR Commission, SCAR and the Council of Managers of National Antarctic Programs (COMNAP) as well as other invited experts. On the role of NGOs within the Antarctic Treaty System see Richard A Herr, ‘The Changing Role of Non-Governmental Organisations in the Antarctic Treaty System’, in Stokke and Vidas (eds), The Common Law of Mankind, 91
35. Lee Kimball, ‘The Role of Non-Governmental Organizations in Antarctic Affairs’, in Joyner and Chopra (eds), The Common Law of Mankind, 33
36. Additionally, the accession of India and Brazil (in 1983) and China and Uruguay (in 1985) to ATCP status divided the united developing country position on the internationalisation of Antarctica, resulting in diminished demands for such a change. See Vidas, The Common Law of Mankind, n 12, at 55
37. See Dagmar Butte, ‘International Norms in the Antarctic Treaty’ 1990 3 International Legal Perspectives 1
38. Jonathan I Charney, ‘The Antarctic System and Customary International Law’, in Francioni and Scovazzi (eds), International Legal Perspectives, 51
39. Watts, International Legal Perspectives, n 3, ch 11
40. See generally, Berguño, International Legal Perspectives, n 21
41. Phillippe Gautier, ‘Institutional Developments in the Antarctic Treaty System’, in Francioni and Scovazzi (eds), 31
42. Watts, ‘Institutional Developments in the Antarctic Treaty System’, n 3, chs 2 and 3
43. Auburn, ‘Institutional Developments in the Antarctic Treaty System’, n 10, at 155
44. Hanessian, ‘Institutional Developments in the Antarctic Treaty System’, n 7, at 462
45. Francesco Francioni, ‘Establishment of an Antarctic Treaty Secretariat: Pending Legal Issues’, in Vidas (ed), ‘Institutional Developments in the Antarctic Treaty System’, 125, at 125
46. See in particular Recommendations I-I and I-IV made at the First ATCM held in 1961. Hayton, ‘Institutional Developments in the Antarctic Treaty System’, n 7, at 370
47. Watts, ‘Institutional Developments in the Antarctic Treaty System’, n 3, at 33. SCAR's website can be found at:
48. 39 Berguño, ‘Institutional Developments in the Antarctic Treaty System’, n 21, at 100
49. Art XIV
50. 42 Art XVII
51. 44 Art 18
52. Art 33
53. Art 1 of the Annex to CRAMRA
54. Art 11
55. Art 12(1).
56. See further Olav Orheim, ‘The Committee for Environmental Protection: Its Establishment, Operation and Role within the Antarctic Treaty System’ in Vidas (ed), ‘Institutional Developments in the Antarctic Treaty System’, 107. The CEP website that is currently hosted by the Norwegian Polar Institute in Tromso can be found at:
57. 1985 Recommendation XIII-2. The ATCM receives reports from the CEP the CCAMLR Commission and the Seals Convention in addition to reports from SCAR and the Council of Managers of National Antarctic Programmes (COMNAP). In 1999 the XXIII ATCM took the unprecedented step of addressing CCAMLR directly (see the Final Report of the Twenty-Third ATCM, Lima, Peru, 24 May-4 June, para 42 and Resolution 3 (1999). Resolution 3 stated that the Representatives ‘recommend that Consultative parties which are Members of CCAMLR take action within their competence to support strongly the CCAMLR Commission in its efforts to deal with the problem of illegal, unreported and unregulated fishing in the Convention area, including adoption of a catch documentation scheme at the Commission's XVIII meeting in Hobart, 1999, and to consider further measures consistent with the obligations each contracting party has under CCAMLR’
58. Francioni, Resolution, n 32, at 12
59. Statement by Sir Esler Dening, reproduced in Conference Documents, The Antarctic Treaty and Related Papers (Washington: US Government Printing Office, 1960), Doc No 15
60. Hanessian, Conference Documents, The Antarctic Treaty and Related Papers, n 7, at 462
61. Berguño, Conference Documents, The Antarctic Treaty and Related Papers
62. Final Report of the First ATCM, Camberra, July 10–24, 1961, Recommendation I-XIV
63. A factor that was noted on a number of occasions during the XIVth, XVth, and XVIth ATCMs by states who took the view that the establishment of a permanent secretariat was unnecessary. See the Final Report of the Fourteenth ATCM, Rio, 1987, paras 27–8;
64. Final Report of Fifteenth ACTM, Paris, 1989 para 30
65. Final Report of Sixteenth ATCM, Bonn, 1991, para 39
66. Francioni, Final Report of Sixteenth ATCM, Bonn, n 32, at 128.
67. Para 25 of the Final Report of the Thirteenth ATCM, Brussels, 1985.
68. Para 26 of the Final Report of the Fourteenth ATCM, Rio, 1987.
69. Para 30 of the Final Report of the Fifteenth ATCM, Paris, 1989.
70. Para 35 of the Final Report of the Fifteenth ATCM, Bonn, 1991.
71. See paras 41–50 of the Final Report of the Seventeenth ATCM, Venice, 1992.
72. See Final Report of the Eighteenth ATCM, Kyoto, 1994 paras 64–70;
73. Final Report of the Nineteenth ATCM, Seoul, 1995 paras 65–7;
74. Final Report of the Twentieth ATCM, Utrecht, 1996, para 52
75. Final Report of the Twenty-First ATCM, Christchurch 1997, paras 85–6;
76. Final Report of the Twenty-Second ATCM, Tromso, 1998, paras 23–33;
77. Final Report of the Twenty-Third ATCM, Lima, 1999 paras 19–30.
78. See Annex E of the Final Report of the Seventeenth ATCM, Venice, 1992
79. and Annex D of the Final Report of the Eighteenth ATCM, Kyoto, 1994.
80. Francioni, Final Report of the Eighteenth ATCM, n 32, at 126.
81. Final Report of the Seventeenth ATCM, Venice, 1992, at para 44.
82. Final Report of the Seventeenth ATCM, at para 47.
83. Final Report of the Twenty-First ATCM, Christchurch, 1997, at para. 86.
84. On the impact of the Falklands/Malvinas War on British Antarctic policy see Peter J Beck, ‘Britain's Antarctic Dimension’ (1983) 59 International Affairs 429.
85. Klaus J Dodds and Lara Manóvil, ‘Recent Developments in Relations Between Argentina, Britain, and the Falkland Islands in the South Atlantic’ (2002) 38(205) Polar Record 153, at 156.
86. Working Paper XXII ATCM/EP8 introduced by Australia at the Tromso ATCM in 1998. See also Final Report of the Twenty-Second ATCM, Tromso, 1998, at para 25.
87. See Dodds, ‘Towards Rapprochement? Anglo-Argentine Relations and the Falklands/Malvinas in the Late 1990s’ (1998) 74(3) International Affairs 617
88. Dodds and Manóvil, International Affairs, n 71.
89. ‘UK Response to Argentine Defence Minister's Statement of 6 July 2001’ reproduced in Appendix 3 of the Final Report of the Twenty-Fourth ATCM, St. Petersburg, 2001.
90. The statement welcomed the Argentinian government's decision to strengthen the regulatory control of Argentinian Antarctic activities, the greater emphasis on Argentine civilians within both the Direccion Nacional Antarctic and Argentine Antarctic Stations, and the legislative initiatives that will allow Argentina to better meet its obligations under both CCAMLR and the Environmental Protocol. See also the statement by the Minister of Defence of Argentina of 6 July 2001 reproduced in Appendix 2 of the Final Report of the Twenty-Fourth ATCM, St Petersburg, 2001.
91. Decision 1 (2001) reproduced in Annex B of the Final Report of the Twenty-Fourth ATCM, St. Petersburg, 2001. See further paras 20–9 of the above report.
92. Henry G Schermers and Niels M Blokker, International Institutional Law, 3rd edn (The Hague: Kluwer Law International, 2001), at §435.
93. International Institutional Law. Footnote omitted.
94. see Robin R Churchill and Geir Ulfstein, ‘Autonomous Institutional Arrangements in Multilateral Agreements: A Little-Noticed Phenomenon in International Law’ (2000) 94 American Journal of International Law 623.
95. A point made by Simon Lyster with specific reference to biodiversity regimes and Philippe Sands and Pierre Klein in relation to international organisations generally. See Simon Lyster, International Wildlife Law (Cambridge: Grotius Publications, Cambridge University Press, 1985), at 301–2
96. and Sands and Klein, Bowett's Law of International Institutions, 5th edn (London: Sweet & Maxwell, 2001), at 302.
97. Schermers and Blokker, Bowett's Law of International Institutions, n 76, at §439.
98. Final Report of the Twenty-Fourth ATCM, St. Petersburg, 2001, para 29.
99. See generally, Sands and Klein, Final Report of the Twenty-Fourth ATCM, n 79, ch 15
100. Schermers and Blokker, Final Report of the Twenty-Fourth ATCM, n 76, ch 11
101. Nigel White, The Law of International Organisations (Manchester: Manchester University Press, 1996), ch 2.
102. Robert Jennings and Arthur Watts, Oppenheim's International Law, Volume 1 (London: Longman, 1992), at 119.
103. Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, 174, at 178.
104. Schermers and Blokker, ICJ Reports, n 76, at §1565.
105. See Jan Klabbers, ‘Presumptive Personality: The European Union in International Law’, in Koskenniemi (ed), ICJ Reports, 231, at 234–8.
106. F. Seyersted, ‘Objective Personality of Intergovernmental Organizations’ (1964) 34 Nordisk Tidsskrift for International Ret 1
107. F. Seyersted, ‘The Legal Nature of International Organisations’ (1982) 51 Nordisk Tidsskrift for International Ret 205.
108. See also Ian Brownlie, Principles of Public International Law, 5th edn (Oxford: Clarendon Press, 1998), at 679–80.
109. In the opinion of Schermers and Blokker Principles of Public International Law, n 76, at §1565.
110. For an extended analysis of presumptive personality see Klabbers, Principles of Public International Law, n 87.
111. Schermers and Blokker Principles of Public International Law, n 76, at §1565.
112. Reparations for Injuries Case, Principles of Public International Law, n 85.
113. Principles of Public International Law, n 85 at 179.
114. See Annex D of the Final Report of the Twenty-Fourth ATCM, St. Petersburg, 2001.
115. This expression might be read as investing the secretariat with international legal personality, an interpretation supported by Gautier Final Report of the Twenty-Fourth ATCM, 29,at 36. This was an expansion on a text submitted to the ATCM one year earlier in Venice, where the approach of restricting personality to the host state was adopted.
116. XXIV ATCM/WP037. See the Final Report of the Twenty-Fourth ATCM, at para 29.
117. Davor Vidas and Birgit Njåstad, ‘The ATS on the Web: Introducing Modern Information Technology in Antarctic Affairs’, in Vidas (ed), Final Report of the Twenty-Fourth ATCM, 141, at 145.
118. Francioni, Final Report of the Twenty-Fourth ATCM, n 32, at 128.
119. The obligation to negotiate a liability regime (or regimes) is provided for in Art 16 of the 1991 Environmental Protocol and negotiations are currently ongoing. See generally René Lefeber, ‘The Legal Need for a Liability Regime’, at 181, ead, ‘The Prospects for an Antarctic Liability Regime’ at 199
120. and Skåre, ‘Liability Annex or Annexes to the Environmental Protocol: A Review of the Processes within the Antarctic Treaty System’ at 163, all in Vidas (ed), ‘The Prospects for an Antarctic Liability Regime’.
121. On the prospects of a liability fund see Francioni, ‘Liability for Damage to the Antarctic Environment’, in Francioni and Scovazzi (eds), ‘The Prospects for an Antarctic Liability Regime’, 581, at 595–7.
122. On Antarctic tourism see Mike G Richardson, ‘Regulating Tourism in the Antarctic: Issues of Environment and Jurisdiction’, in Vidas (ed), ‘The Prospects for an Antarctic Liability Regime’, 71
123. and Shirley V Scott, ‘How Cautious is Precautious?: Antarctic Tourism and the Precautionary Principle’ (2001) 50 ICLQ 963.
124. For a discussion of these options, see Francioni, ICLQ, n 32, at 132–5 and
125. Gautier, ICLQ, n 29, at 36–40.
126. As does Francioni who points out that a Decision that relates to an internal organisational matter would be a very narrow instrument with which to establish a secretariat capable of influencing external matters, ICLQ, n 32, at 133.
127. The approval of Antarctic Measures has been described as ‘a notoriously slow process’. Francioni, ICLQ, n 32, at 133.