The Antarctic Treaty and the Antarctic Treaty System

Background: Antarctica and Antarctic waters were the scene of exploratory and scientific expeditions and commercial whaling and sealing during the nineteenth and first half of the twentieth centuries. By 1941, seven countries had made claims to parts of Antarctica (Argentina, Australia, Chile, France, New Zealand, Norway and UK). The claims of Argentina, Chile and the United Kingdom all overlap in the Antarctic Peninsula and one sector of Antarctica, comprising about 15% of the land area, is unclaimed. Other states active in Antarctica neither assert nor recognize such claims

Following World War II there was an upsurge in research activity in Antarctica culminating in the cooperative scientific program in Antarctica undertaken as part of the International Geophysical Year (IGY) in 1957-58. Twelve States with scientific research and other interests in Antarctica participated in the IGY program. These included the seven claimant States and the United States, Belgium, Japan, South Africa, and the USSR, who made no claims to sovereignty on the continent and did not recognize those of others. The U.S. has the basis for a claim to at least a part of the continent, but has perceived its interests better served by arrangements which assure access to the continent as a whole.

The States active in the IGY devised informal arrangements devised to avoid disruptions resulting from differing territorial claims positions. These worked well and formed the basis of a U.S. initiative to provide a more formal basis for long-term cooperation in Antarctica. This initiative resulted in conclusion of the Antarctic Treaty, signed by these same twelve states in 1959.

The Antarctic Treaty: The Antarctic Treaty, which entered into force in 1961, applies to the area south of 60 degrees south latitude including all ice shelves. The Treaty guarantees freedom of scientific research in Antarctica, placing on a permanent basis the system of peaceful international cooperation which evolved during the International Geophysical Year. It calls for plans for scientific investigations to be shared in advance and the results of scientific investigations to be shared and made freely available.

Equally important, the Treaty establishes Antarctica as a zone of peace reserved exclusively for peaceful purposes. It bans all military activities, including the testing of weapons, and prohibits nuclear explosions and the disposal of radioactive waste. In addition, it provides an absolute right of on-site inspection of all stations and installations in Antarctica to promote the objectives of the Treaty and ensure compliance with its provisions.

To achieve these purposes, the Antarctic Treaty had to deal with the basic legal and political differences over territorial sovereignty in Antarctica. Article IV of the Treaty freezes the question of previously asserted rights and claims to territorial sovereignty in Antarctica, and provides that no acts or activities carried out while the Treaty is in force will constitute a basis for a claim. It also preserves the previously established U.S. basis of a claim. This imaginative formulation permits the parties to agree to disagree over the sovereignty issue and thereby establishes the basis for international cooperation in Antarctica. In effect, for those activities with which it deals, the Treaty provides means for its parties - starting from different legal assumptions - to apply common obligations to activities in Antarctica.

The Antarctic Treaty did not deal with all possible activities in Antarctica. Its substantive provisions, including the juridical accommodation, apply to activities relating to scientific research and the reservation of Antarctica exclusively for peaceful purposes. They do not, for example, extend to resource activities.

At the same time, the Treaty provides a mechanism for dealing with new activities and new circumstances. This mechanism, which is contained in Article IX of the Treaty, provides for meetings of the twelve original contracting parties first within two months of entry into force of the Treaty and at suitable intervals thereafter, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica and recommending to their governments measures in furtherance of the principles and objectives of the Treaty.

The Treaty also provides that these consultative meetings, as they are now called, are open not only to full participation by representatives of the twelve original contracting parties but also to representatives of any acceding party during such time as that party demonstrates its interest in Antarctica by the conduct of substantial scientific research there. There are now twenty-six Parties (Antarctic Treaty Consultative Parties or ATCPs) with full rights of participation in these meetings. Currently, the ATCPs are Argentina, Australia, Belgium, Brazil, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, Republic of Korea, the Netherlands, New Zealand, Norway, Peru, Poland, Russia (as successor to the USSR), South Africa, Spain, Sweden, the United Kingdom, the U.S. and Uruguay. In addition, representatives of all other parties to the Antarctic Treaty also participate in consultative meetings as observers. There are also sixteen such non-Consultative Parties (NCPs) - Austria, Bulgaria, Canada, Colombia, Cuba, Czechoslovakia, Denmark, Greece, Guatemala, Hungary, the Democratic People's Republic of Korea, Papua-New Guinea, Romania, Switzerland, Turkey and Ukraine.

There have been nineteen Antarctic Treaty Consultative Meetings (ATCMs) since the Antarctic Treaty entered into force, with the next, scheduled for May, 1996 in the Netherlands. As a result of these ATCMs, approximately two hundred agreed recommendations have been adopted by the Consultative Parties.

The Antarctic Treaty System: The agreed recommendations adopted at the ATCMs incorporate a wide range of measures to give effect and elaborate the principles and purposes of the Antarctic Treaty. A significant proportion of these recommendations deal with protection of the Antarctic environment.

Equally important from the environmental perspective, the ATCMs have provided the mechanism for the ATCPs to delineate and respond to the challenge of possible resource activities in Antarctica. Recommendations adopted at ATCMs have included initiatives which have lead to the conclusion of four separate treaties which in whole or in part seek to address resource issues. Two of these are in force. These separate treaties are:

In addition, the Scientific Committee on Antarctic Research (SCAR), a non-governmental ICSU body, is generally associated with the Antarctic Treaty system. SCAR provides a continuing mechanism for the Antarctic scientific community to identify research priorities in Antarctica and promote cooperative efforts for their achievement. SCAR, which also grew out of the IGY has no formal ties to the Antarctic Treaty, but serves as a source of expert scientific opinion.

The Convention on the Conservation of Antarctic Seals (CCAS): The Antarctic Seals Convention establishes limitations upon, and provides a mechanism to deal with, commercial sealing in Antarctica. It was negotiated primarily as a precautionary measure in light of concern over the possible re-initiation of pelagic commercial sealing in Antarctica. Interest in such sealing has not materialized as was confirmed at the meeting of Parties to CCAS in September, 1988.

The Convention on the Conservation of Antarctic Marine Living Resources: The Convention on the Conservation of Antarctic Marine Living Resource (CCAMLR) resulted from an initiative taken at ATCM IX in London in 1977. The Convention represents a precedent-setting effort to develop and apply an ecosystem-wide management approach to the waters surrounding Antarctica. Its objective is to ensure that any harvesting of Antarctic marine living resources is consistent not only with the health of target populations but also with that of dependent and related species and with maintenance of ecological relationships.

Consistent with its conservation objectives, the Convention applies to a geographic area defined to approximate the full extent of the Antarctic marine ecosystem. This area, defined by specific coordinates, extends to those waters found south of the Antarctic Convergence, or polar front, which is the transition zone between Antarctic waters to the south and warmer sub-Antarctic waters to the north. It should be noted that the Convention area is considerably larger than that covered by the Antarctic Treaty (which applies to the area south of 60° South Latitude).

The Convention establishes the Commission for the Conservation of Antarctic Mineral Living Resources, headquartered in Hobart, Tasmania; the Scientific Committee for the Conservation of Antarctic Marine Living Resources, charged with providing objective scientific assessments and recommendations to the Commission; and a secretariat to serve both the Commission and Scientific Committee. The Convention provides that the Commission will operate on the basis of a consensus - or no-objection - procedure which has been characteristic of the Antarctic Treaty system.

There are now 28 Parties to CCAMLR, of whom 21 are members of the Commission. Its eleventh annual meeting will take place in November, 1993. Since the entry into force of CCAMLR in 1982, there has been steady progress in the development of the scientific and data bases for Population assessments, on the delineation and implementation of conservation measures, particularly those aimed at restoration of fishery stocks depleted during the 1970s and in elaborating a system of observation and inspection. Concerted action by Parties to CCAMLR will continue to be necessary to achieve its conservation objectives.

The Protocol on Environmental Protection to the Antarctic Treaty: The Protocol was concluded in Madrid on October 4, 1991. It builds upon the Antarctic Treaty to extend and improve the Treaty's effectiveness as a mechanism for ensuring the protection of the Antarctic environment. It designates Antarctica as a natural reserve, devoted to peace and science, and sets forth legally binding environmental protection principles applicable to human activities in Antarctica, including obligations to accord priority to scientific research.

The protocol prohibits all activities relating to Antarctic mineral resources, except for scientific research, and provides that this prohibition cannot be amended by less than unanimous agreement for at least 50 years following entry into force of the Protocol.

The Protocol requires Parties to protect Antarctic fauna and flora and imposes strict limitation on disposal of wastes in Antarctica and discharge of pollutants into Antarctic waters. It also requires application of environmental impact assessment procedures to activities undertaken in Antarctica, including non-governmental activities, for which advance notice is required under the Antarctic Treaty. Parties are further required to provide for response to environmental emergencies, including the development of joint contingency plans.

Detailed mandatory rules for environmental protection pursuant to these requirements are incorporated in a system of annexes, forming an integral part of the Protocol. Specific annexes on environmental impact assessment; conservation of Antarctic fauna and flora; waste disposal and waste management; and the prevention of marine pollution were adopted with the Protocol. A fifth annex on area protection and management was adopted October 17, 1991 by the Antarctic Treaty Consultative Parties at the Sixteenth Antarctic Treaty Consultative Meeting. Provision is also made for additional annexes to be incorporated following entry into force of the Protocol.

Dispute settlement procedures are included in the Protocol. These Include compulsory and binding procedures for disputes over the interpretation or application of, and compliance with, the provisions of the Protocol relating to mineral resource activities, environmental impact assessment and response action, as well as most provisions included in the Annexes.

The Protocol establishes a Committee on Environment Protection, as an expert advisory body to provide advice and formulate recommendations to the Antarctic Treaty Consultative Meetings in connection with the implementation of the Protocol.

Conclusion of the Protocol resulted from negotiations during the Eleventh Antarctic Treaty Special Consultative Meeting among the Antarctic Treaty Consultative Parties - Argentina, Australia, Belgium, Brazil, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, Republic of Korea, Netherlands, New Zealand, Norway, Peru, Poland, South Africa, Spain, Sweden, the Soviet Union, the United Kingdom, the United States and Uruguay.

Fourteen Contracting Parties which are not Consultative Parties - Austria, Bulgaria, Canada, Colombia, Czechoslovakia, Cuba, Denmark, Greece, Guatemala, Hungary, Democratic People's Republic of Korea, Papua New Guinea, Romania and Switzerland, as well as representatives of a number of international organizations, attended as observers.

The Special Consultative Meeting, convened pursuant to a recommendation adopted in Paris in October, 1989, had as general terms of reference the "further elaboration, maintenance and effective implementation of a comprehensive system for the protection of the Antarctic environment." The first session of the Special Consultative Meeting took place in Vina del Mar, Chile, November 19-December 6, 1990; and the second in Madrid, April 22-30, June 17-22, and October 3-4, 1991.

The Protocol, including the annexes on environmental impact assessment, conservation of Antarctic fauna and flora, waste disposal and waste management, and prevention of marine pollution, was adopted by consensus of the twenty-six Antarctic Treaty Consultative Parties. The Protocol was opened for signature on October 4 in Madrid and, thereafter, in Washington until October 3, 1992. All 26 of the Antarctic Treaty Consultative Parties, including the United States, signed the Protocol during that period, along with ten of the Contracting Parties that are not Consultative Parties.

The Protocol and Annexes I through IV will enter into force on the thirtieth day following the date on which all 26 Antarctic Treaty Consultative Parties have deposited their instruments of ratification, acceptance, approval or accession. Annex V on Area Protection and Management will enter into force on the date on which that Annex has been approved by all Antarctic Treaty Consultative Parties, provided that the Protocol has entered into force.

As of March 1, 1996, twenty of the ATCPs had ratified the Protocol: Argentine, Australia, Brazil, Chile, China, Ecuador, France, Germany, Italy, Korea, Netherlands, Norway, Peru, Poland, Spain, Sweden, United Kingdom and Uruguay. For the United States, the Senate has given its advice and consent to ratification. However, implementing legislation also necessary for ratification has not yet been enacted by the Congress. Such legislation has been introduced.

See attached bar graph, "Number of Antarctic Treaty Nations, 1959-1996"

Table AI-1. Number of Antarctic Treaty nations, 1959-1996

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