At a certain moment there were at least 10 permanent research stations on Antarctica. But whose law would apply? This question led to the establishment of the Antarctic Treaty, a set of international agreements established in 1961 which lead to the solution of the sovereignty issue in Antarctica.
Whose law applies?
By the early 1950s, territorial claims in Antarctica had become well established and most of the continent was subject to the sovereignty of at least one country. Some countries moved to establish a permanent presence – Australia, for example, established in 1954 the first permanent station south of the Antarctic Circle. Two years later there were at least 10 permanent stations and occupation of the continent was literally being cemented. Whose law would apply to such developments? Such questions would need answering as some claims overlapped and at least two countries specifically rejected the sovereign claims on which national jurisdiction would be based. With growing interest in Antarctic research and increasing presence, this uncertainty needed resolution and various attempts were made to internationalise Antarctica. Holding much of the 1957/58 International Geophysical Year (IGY) in Antarctica helped bring the issues to a head. In Antarctica IGY participants agreed to temporarily set aside jurisdictional problems so that the research could proceed without distraction. Scientists would be free to travel anywhere in Antarctica without seeking permission. This proved remarkably successful.
Would Cold War rivalries extend to Antarctica?
After IGY it became clear that territorial aspirations and political arguments might hinder the long term development of research in Antarctica. Would Cold War rivalries extend to Antarctica? A way had to be found to maintain the harmony achieved during IGY, without taking anything away from the interests of nations already there. In 1958 the US proposed that the 12 nations in Antarctica during the IGY negotiate a regime for long-term Antarctic cooperation. This led quickly to the adoption in December 1959 of the Antarctic Treaty, which entered into force on 23 June 1961.
The Antarctic Treaty
Compared to other international agreements the Treaty is remarkably short – just 14 articles. But it conveys powerful principles and at its core is Article IV, an elegant solution to the sovereignty issue. During the life of the Treaty it precludes new or enlarged claims and prevents activities from enhancing or detracting from existing claims. It thus holds the status quo by protecting the interests of all Parties: those who made sovereign claims, those who reserved the right to claim, and those who reject claims completely. Its simplicity is that it did not set aside the claims – it just sets aside arguments about them. This is one reason why the continent has never seen war.
The Treaty is founded on the principle in its opening paragraph – that it is in the interests of world that the region be used exclusively for peaceful purposes and that Antarctica should never be the scene or object of international discord. It prohibits military manoeuvres, weapons testing and disposing of nuclear waste. The Treaty applies to the area south of 60°South and thus covers a vast region. Importantly, the Treaty is as much about rights as it is about obligations. For example, it is a Party’s right to undertake research anywhere they like in Antarctica and have scientific results made freely available. In addition, at any time Parties can inspect the activities and stations of others. In this sense it became the world’s first armaments inspection regime, although in practice inspections are used mainly for environmental compliance.
Such a short Treaty could not possibly cover all the activities that needed governing. It therefore provided for Parties to meet and adopt measures to advance the scope of the Treaty regime. These meetings comprise the original 12 Parties to the Treaty, plus states that have subsequently acceded to the Treaty. There are now 53 Parties, of which 29 are the so-called Consultative Parties entitled to participate in decision-making. This provides an additional and potentially far-reaching right – to initiate significant change in the way the Treaty approaches the region’s management. The consultative meetings have thus been used to launch discussions leading to entirely new agreements, including:
- Convention for the Conservation of Antarctic Seals 1978
- Convention on the Conservation of Antarctic Marine Living Resources 1980
- Convention on the Regulation of Antarctic Mineral Resource Activities 1988 (this convention is unlikely to enter into force – article on Mining in Antarctica)
- Protocol on Environmental Protection to the Antarctic Treaty 1991
A large number of Measures, Decisions and Resolutions have also bee agreed on a very wide of subjects. Together with the various institutions associated with the Treaty (including the Committee for Environmental Protection, the Council of Managers of National Antarctic Programs, and other affiliated organisations) these measures comprise what is now known as the Antarctic Treaty System. They address issues such as environmental protection, tourism management, exchange of information, international cooperation and so on.
Such decisions are made at the annual Consultative Meetings, the hosting of which rotates between the Parties. Because of the growing number of Parties it can be many years between hosting a meeting (for example, Australia hosted the first meeting in 1961, the 12th in 1983 and the 35th in 2012). To ensure consistency, support for the meetings is provided by a Secretariat which has its international staff and headquarters in Buenos Aires. Meetings are conducted in four languages and decisions are taken by consensus – this does not necessarily mean that everyone agrees, but it does mean that no one formally objects.
Of course, it is not compulsory for a nation to join the Treaty. The reality is, however, that any nation active in Antarctica joins the Treaty as it is seen to provide the best way managing the region and membership ensures mutual support in research, the sharing of logistics and operational costs, and cooperation in the case of emergencies.
Like any other international agreement it could be reviewed. Article XII allows for a review conference to be called after 30 years (ie: from 1991). No Party has called for a review and the Treaty continues to grow. The signs are that the Treaty will survive for many decades, maybe forever. It is hard to image that an alternative regime that is as effective could be negotiated – many would argue that the strength of the Treaty lies in its simplicity, the fact that it so neatly sidesteps the most controversial issues, and that the Treaty system can continue to adapt.
It is perhaps ironic that the one issue which triggered the Treaty in the first place – the question of exercise of national jurisdiction – has never been discussed at a Treaty meeting even though Article IX of the Treaty specifically provides for that discussion. As much as anything, this demonstrates the insight of the original negotiators of the Treaty and the Treaty’s enduring effectiveness in achieving harmony in Antarctic affairs.
Is your country in the Antarctic Treaty?
See the list below to check if your country is in the The Antarctic Treaty.
Entry into force Consultative status Argentina 23 Jun 1961 23 Jun 1961 Australia 23 Jun 1961 23 Jun 1961 Austria 25 Aug 1987 – Belarus 27 Dec 2006 – Belgium 23 Jun 1961 23 Jun 1961 Brazil 16 May 1975 27 Sep 1983 Bulgaria 11 Sep 1978 5 Jun 1998 Canada 4 May 1988 – Chile 23 Jun 1961 23 Jun 1961 China 8 Jun 1983 7 Oct 1985 Colombia 31 Jan 1989 – Cuba 16 Aug 1984 – Czech Republic 14 Jun 1962 1 Apr 2014 Denmark 20 May 1965 – Ecuador 15 Sep 1987 19 Nov 1990 Estonia 17 May 2001 – Finland 15 May 1984 20 Oct 1989 France 23 Jun 1961 23 Jun 1961 Germany 5 Feb 1979 3 Mar 1981 Greece 8 Jan 1987 – Guatemala 31 Jul 1991 – Hungary 27 Jan 1984 – Iceland 13 Oct 2015 – India 19 Aug 1983 12 Sep 1983 Italy 18 Mar 1981 5 Oct 1987 Japan 23 Jun 1961 23 Jun 1961 Kazakhstan 27 Jan 2015 – Korea (DPRK) 21 Jan 1987 – Korea (ROK) 28 Nov 1986 9 Oct 1989 Malaysia 31 Oct 2011 – Monaco 31 May 2008 – Mongolia 23 Mar 2015 – Netherlands 30 Mar 1967 19 Nov 1990 New Zealand 23 Jun 1961 23 Jun 1961 Norway 23 Jun 1961 23 Jun 1961 Pakistan 1 Mar 2012 – Papua New Guinea 16 Mar 1981 – Peru 10 Apr 1981 9 Oct 1989 Poland 23 Jun 1961 29 Jul 1977 Portugal 29 Jan 2010 – Romania 15 Sep 1971 – Russian Federation 23 Jun 1961 23 Jun 1961 Slovak Republic 1 Jan 1993 – South Africa 23 Jun 1961 23 Jun 1961 Spain 31 Mar 1982 21 Sep 1988 Sweden 24 Apr 1984 21 Sep 1988 Switzerland 15 Nov 1990 – Turkey 24 Jan 1996 – Ukraine 28 Oct 1992 04 Jun 2004 United Kingdom 23 Jun 1961 23 Jun 1961 United States 23 Jun 1961 23 Jun 1961 Uruguay 11 Jan 1980 7 Oct 1985 Venezuela 24 Mar 1999 – Total: 53 Parties Total: 29 ATCPs
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