7 May 2021
Antarctica, the largest desert in the world with a population varying between 1000 to 5000 depending on the season, could find itself in the centre of varying plans. Antarctica is currently governed by the Antarctic Treaty System, which ensures that the continent remains free of sovereign claims, demilitarised, and that no exploitation of underground resources occurs. However, with global warming and future confrontations between states, this present set up could come under threat. Hence, the question is whether the Antarctica Treaty System is resilient enough to ensure that conflict does not develop on the continent?
Antarctica is governed by the Antarctica Treaty System (ATS), a collection of legal documents centred around the Antarctic Treaty of 1959 and its subsequent protocols. It ensures that conflicts do not arise on the continent and tries to mitigate any conflict. It does so by restricting military activity in the region to peaceful purposes only, effectively ensuring a high degree of demilitarisation in the region. Hence, military operations in the region may only operate for logistics and support to scientific missions established in the region. (Anne-Marie Brady, 2019)
Furthermore, in Article 4(2), the treaty lays a prohibition of laying new claims or enlarging a claim over the continent. So far, seven states have laid claims over the continent, some of them with overlapping claims. Others, such as Russia, China, and the U.S. have reserved the right to a claim in the future. This reservation of future claims seems to be compatible with the treaty, as no prohibition for such exists in the document. (Anne-Marie Brady, 2019).
Additionally, any activity undertaken in Antarctica during the duration of the treaty cannot be used to support a claim. Finally, there is a duty to inform the other parties that military personnel will be introduced on the continent. Thus, in essence, the treaty does not solve any of the conflicts on the continent, but rather it freezes any dispute. As there is a prohibition of use of military other than for peaceful purposes and claims are not to be enlarged, neither activity can constitute a base for such a claim. Effectively, the treaty serves as an instrument of stabilisation. It ensures a status quo for all current Antarctic powers. It safeguards all relevant rights while at the same time laying the groundwork for building an effective mechanism for international cooperation. (Francisco Orrego Vicuna, 1985) Hence, if a state wants to lay a claim during the term of treaty, it would have to be done solely through its withdrawal of the treaty.
Furthermore, the Madrid protocol of 1991 sets a ban on mining activities on the continent. Article 7 of the protocol lays down the prohibition. It states that any activity relating to mineral resources, other than scientific research, shall be prohibited. The term “any activity” encompasses the prospecting and the exploitation of mineral resources, however, scientific research is still possible. The difference between prospecting and scientific research is up to individual countries to decide. (Anne-Marie Brady, 2019) Thus, in the future, states may engage in prospecting under the guise of scientific research. However, the general prohibition to exploitation will be in force. Such prohibition can only be overturned through the use of article 25 of the protocol.
The procedure is divided into two sections, amendment to the prohibition before the 50-year mark of entry into force of the protocol, and after the 50-year mark. For the former, the procedure requires that the amendments to the treaty are to be done by unanimity. Hence, all states must agree to the changes. It is a high threshold to meet and would require extensive negotiations to accommodate all parties involved. The former would require the majority of the states and the approval of the three quarters of the states which are part Treaty Consultative Parties. This requirement is further qualified by the fact that for the overturn of the mineral exploitation, a binding legal regime for its exploitation must be agreed upon. That regime must determine under which conditions any such activities would be acceptable and must safeguard the interest of the claimant states in line with Article 4 of the treaty and apply its principles. Thus, even if the ban on exploitation of minerals of the Antarctic is overturned, further negotiation would be required for the states. This ensures that cooperation is the default method of affairs on the continent.
Accordingly, the Antarctic Treaty System presents itself as a resilient mechanism of governance that can freeze any conflict in the short term. However, such could come under strain in the long term. It could come under strain due to two factors: the depletion of a certain resource in the world, and second from the importance of Antarctica geopolitical sense. This is due to the location of global navigational satellites and other technologies which have dual-use purposes. Hence, they could be installed on the continent without at prima facie infringing the rule on demilitarisation.
Furthermore, sovereignty challenges are already developing through scientific research stations applying national law, reserving themselves the right to exclude. This, in turn, could mean that the more research bases are established on the continent, the more de facto control the relevant government has over the territory (Anne-Marie Brady, 2019). In turn, coupled with the free access to the continent for scientific research, a state with substantial economic might may disregard the claims of other states (Anne-Marie Brady, 2017). Any state of the traditional states that lay claims on the continent that fall behind, could find itself challenged and lead to a vacuum that could potentially be filled by an emerging power. While in the near future, the technical capacity for mineral extracting is still many years away (David Leary, 2015). States already have their eyes set on the resources found on the continent, and considering that, it is a matter of time before the inevitable exploitation would begin, additionally, they consider such minerals to be essential for the continued growth of their economy. (Anne-Marie Brady, 2017) Hence, the ATS might be a stabilising factor in the short to medium term for the continent. In the long run, it could break down, as emerging power consider Antarctica as integral part of their long term economic and strategic goals. Trust and cooperation will have to be maintained to keep stability. However, the ATS merely freezes conflict, and its procedure is not equipped for challenges to its norms (Anne-Marie Brady, 2019). Hence, while it serves its purposes now as a stabilising factor, once a state decides to break the status quo, the whole system could find itself under serious strain, as no enforcement mechanism exists in the treaty.
Written by Aris Vassiliou, Legal researcher at Finabel – European Army Interoperability Centre
Sources
Brady, Anne-Mary. (2019), `Antarctica as a Site of Strategic Competition: Optimal Responses for Australia and New Zealand´, Antarctica 2050: Strategic Challenges and Responses. [online] Available at: https://www.acmc.gov.au/sites/default/files/2020-04/Antarctica%20Booklet%20Final%2020200221.pdf[Accessed: 05 May,2021]
Brady, Anne Mary. (2017), ‘China´s Expanding Antarctic Interests: Implications for New Zealand’, University of Canterbury.[online] Available at: https://www.canterbury.ac.nz/media/documents/research/China’s-expanding-Antarctic-interests.pdf [Accessed: 05 May,2021]
Leary, David. (2015) ´The Future of Antarctica: Conflict or Consensus?´, Australian Institute of Foreign Affairs [online] available at: https://www.internationalaffairs.org.au/australianoutlook/the-future-of-antarctica-conflict-or-consensus/ [ Accessed: 05 May, 2021]
Vicuna, Francisco Orrego. (1985) ‘Antarctic Conflict and International Cooperation’, Nap. [online] Available at: https://www.nap.edu/read/621/chapter/9 [Accessed: 05 May,2021]
