by Rene Wadlow
In an earlier article Arctic Oil and the Law of the Seize, I mentioned that some such as Scott Borgerson, who teaches maritime studies at the US Coast Guard Academy and is a fellow at the Council on Foreign Relations, are looking to the Antarctic Treaty of 1959 as a model to prevent an Arctic race for oil by avoiding the provisions of the Law of the Sea Convention which the USA has not signed.
Since the Antarctic Treaty is bedside reading for only a few, it is useful to look at its provisions and to see if it can be a useful precedent.(1)
The Antarctic Treaty was drafted largely as a way to avoid a clash of sovereignty among seven states, some of whose claims to territory in Antarctica overlap, in particular Chile, Argentina and the United Kingdom. The claims were highlighted in 1958 which the United Nations proclaimed as International Geophysical Year, and there were at least twelve national expeditions that year in the Antarctic.
It is believed that the Antarctic continent once existed in close juxtaposition with Australia, South Africa, South America, and India in an original super-continent, Gondwanaland. Since the latter areas are all well endowed with minerals, it is assumed that the Antarctic must be likewise. While extraction would be difficult and expensive, the price of oil and minerals could make extraction financially worthwhile.
The success of the 1958 International Geophyical Year encouraged hopes of making the spirit of scientific co-operation more permanent, leading to the 1959 Antarctic Treaty among twelve states — those with sovereignty claims and five additional states which had participated in the expeditions of the Geophysical Year.
The Treaty has four notable components. First, it established the world’s first nuclear-free zone, preventing the placing of nuclear weapons and nuclear waste. The Treaty did not rule out the civilian use of nuclear energy, and so the USA installed a nuclear power plant at its McMurdo Base. It failed to live up to its expectations and was decommissioned in 1978. Since it was decommissioned, it then became radioactive waste, and the material had to be shipped back to the USA at almost the same cost as originally building it.
Second, the Antarctic Treaty has frozen land claims, such as those of the UK, Chile and Argentina which overlap. The USA and the Soviet Union by contrast did not make any claims but did not recognise the claims of others. The Treaty froze the issue. No new claims were to be made but the current claimants were not forced to give up what they already claimed. Meanwhile, for those states that did not recognise any of the claims, the Treaty permitted them to continue their policy of non-recognition.
Third, the Treaty guaranteed international co-operation in scientific investigation. There is an exchange of information regarding scientific programs, as well as co-operation among scientific personnel.
Finally, there is a strong international mechanism to supervise the implementation of the Treaty. This international mechanism also contains an obligation among the nations concerned to settle their disputes peacefully by negotiation and inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice.
The Treaty has worked well. While political disputes come and go, the challenges of science remain. In the mid-1970s during the negotiation on the Law of the Sea Convention, Sri Lanka proposed that the Convention should apply to the Antarctic. This idea was beaten back by the 12 states party to the Antarctic Treaty; the UK, USA and USSR having a good number of allies or clients. Thus it was agreed that the Antarctic should not be dealt with by the Law of the Sea negotiations nor its Convention. A few states, in particular Malaysia had raised the issue in the mid 1980s in the UN General Assembly, but were never able to build up momentum to really question the Treaty — a deal among a small number of powerful states. The Antarctic Treaty pf 1959 is a product of a bygone era. It was created at a time when many states were still colonies of European powers and so were largely ignored in international politics. Thus a handful of developed states could determine the outcome of a large area without recourse to advice from Asia or Africa. Today, such a treaty among only a few states is less possible even if the outcome of the Antarctic Treaty has been largely positive.
Concerning the North Pole, the Arctic states — Canada, Denmark, Finland, Iceland, Norway, Sweden, Russia, and the USA — participate in an intergovernmental body, the Arctic Council concerned largely with environmental questions. Could the Arctic Council serve as a focus for drafting a wider treaty among these states to deal with sovereignty claims, shipping lanes, the development of oil and mineral resources, and the welfare of nearly one million indigenous peoples living within the Arctic Circle? This is one of the questions facing the international community. The quality of the answers given will have to concern more than international lawyers.
1) For those who would like to study it at length, see Emilio Sahurie The International Law of Antarctica( Dordrecht, NL: Martinus Nijhoff Publishers, 1991, 612pp.)