The Antarctic Treaty 50 years on
The 23rd of June 2011 marks 50 years since the entry into force of the Antarctic Treaty, which has provided a stable and enduring governance regime for the Antarctic region. What has changed in that time? How has the Treaty grown? Are the challenges the same?
Using a simple measure it would be easy to say the Treaty has quadrupled—the 12 original signatories to the Treaty are now well out-numbered, with 36 other nations having subsequently acceded to it. While these figures may impress, what is interesting is the pattern of growth in States adhering to the Treaty. There was a marked increase in interest in the 1980s when attention turned to issues of resource development in the Antarctic. This interest was paralleled by overt challenges in the United Nations to the legitimacy of the Treaty—challenges that were successfully defended, ultimately leading to a strengthening of the Treaty and modernisation of the way the Treaty Parties conducted business. But consideration of just the numbers of Parties involved is not enough to describe the developments.
More useful is the content of the governance regime spawned by the Treaty. The Treaty consists of just 14 articles—remarkably short compared to contemporary international legal instruments. Perhaps its brevity reflects the short time taken for its negotiation, but this would not do justice to the importance of its content. The Treaty embodied principles crucial to governing activities—ensuring peace in the region, guaranteeing freedom for scientific research and free exchange of scientific results, setting aside arguments over sovereignty, and exchanging information on Antarctic activities. It also provided a right of inspection of other nations’ activities. In a regime which also prohibited military manoeuvres and was the first nuclear non-proliferation treaty, this was a ground-breaking fore-runner of modern compliance arrangements. So considerable substance and foresight was embodied in a relatively spare skeleton.Importantly, the Treaty also provided the mechanism for regular communication between the Parties. It essentially gave the representatives of governments, assembling at the Consultative Meetings, a free hand to develop recommendations that could be taken back to governments for consideration. As a result, the 14 Treaty articles have been complemented by countless other legal instruments, Measures, Decisions and Resolutions. These include discrete regimes such as the Convention on the Conservation of Antarctic Seals, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), and the Protocol on Environmental Protection to the Antarctic Treaty. Procedures have also been adopted relating to the exchange of information, conduct of inspections, scientific cooperation, management of protected areas, conduct of tourism, ship safety, and many other practical matters. The CCAMLR Commission also generates Conservation Measures. Together, these instruments and agreements form the body of what is now known as the Antarctic Treaty system.
The ‘system’ also includes the institutions that underpin the legal framework. These include forums, such as the Antarctic Treaty Consultative Meeting (ATCM) and its Committee for Environmental Protection (CEP), the CCAMLR Commission and its Scientific Committee, as well as affiliated bodies such as the Council of Managers of National Antarctic Programs (COMNAP) and the Scientific Committee on Antarctic Research (SCAR). Linking these are the supporting administrative bodies including the Antarctic Treaty Secretariat and the CCAMLR Secretariat. The overarching forum is the ATCM, where the principles of the Treaty are vigorously pursued, the health of the system monitored and the fundamental ways of operating protected.
Just three weeks after the Treaty entered into force the ATCM convened for the first time in Canberra, in what is now Old Parliament House. It is not normal practice for a Treaty to specify the location of the first meeting, but in this instance it did. On the agenda were a number of issues designed to flesh out the broad principles of the Treaty, taking advantage of the provision in Treaty Article IX that the Parties could adopt measures to further the Treaty’s objectives.
A focus of that Canberra meeting was practical issues, including ways to facilitate exchange of information and the prospects of institutional support for the Treaty. This latter item proved problematic and it was to be another four decades before a Treaty Secretariat was established. The Parties also avoided discussion of jurisdictional issues, despite proposals that they be tackled promptly—in fact, such issues continue to be side-stepped. But such sensitivities did not prevent progress on many other pressing issues, including the first discussions on ways to protect the environment and conserve living resources. These debates led initially to the Agreed Measures for the Conservation of Antarctic Fauna and Flora. The Agreed Measures applied to the land and ice shelves of the Antarctic but left a vacuum with respect to the high seas. The Parties then addressed pelagic sealing in the separate Seals Convention. By the end of the 1970s attention turned towards other resource management issues—initially the other living resources of the Southern Ocean (essentially krill and finfish), then the non-living resources (hard minerals and hydrocarbons). CCAMLR was adopted in 1981 to deal with the former, and the Convention on the Regulation of Antarctic Mineral Resources (CRAMRA) was negotiated in 1988.
Debate over the minerals convention triggered considerable external interest in the Antarctic Treaty system, including criticisms within the United Nations about the apparent exclusivity of the Parties in dealing with the issues, and criticism from environmental stakeholders about the potential impact on Antarctica’s natural values. Following intense debate, precipitated by Australia’s decision not to sign the minerals convention, the Parties did an about-face and adopted the Protocol on Environmental Protection to the Antarctic Treaty. This agreement prohibited mining, set environmental principles for the conduct of all activities in Antarctica, and integrated a number of existing environmental provisions in a legally binding regime.
These developments do not mean that economic use has been set aside. Indeed, CCAMLR is very active in regulating the use of marine living resources, tourism is under increasing regulation and the Parties have addressed biological prospecting.On reflection, four key stages in the evolution of the Treaty system can be defined, each building on the preceding stages to strengthen the system. Initially the Treaty focussed on consolidation and administration. The second stage dealt with the primary resource issues. The third stage put emphasis on environmental protection and management. The fourth stage is fostering global acceptance of the Treaty’s contribution to the world’s diplomatic and environmental health; as a result there is growing recognition of Antarctica’s global, rather than regional, significance.
Throughout these stages the primary activity on the ground in Antarctica has been scientific research. This has undergone its own transformation from basic, descriptive programs to highly integrated programs, relying heavily on international collaboration and addressing global issues. The Treaty has made such approaches possible because it has instilled confidence in the operating environment.
One of the most remarkable achievements of the Antarctic Treaty system is the way it has dealt with potentially destabilising Antarctic issues. For example, the differences of view over sovereign claims, the politics of cold war rivalries, the potential intrusion of rights under the Law of the Sea—all melted away without these issues ever being on the agenda of the ATCM. Protecting the stability of the Treaty has always taken a higher priority.
Australia hosted the 12th ATCM in 1983, again in Canberra, just on the cusp of critical Treaty system developments. CCAMLR had just begun its early work, the minerals debate was gathering momentum and the external challenges to the Treaty were beginning to emerge. In 2012 Australia will again host the ATCM. By then the Treaty will have celebrated its 50th year and will be looking ahead to the future management of the Antarctic region. There will no doubt be further growth in the number of Parties, new ways of collaborating in science and logistics, and evolution of the suite of management measures. Inevitably there will also be unexpected challenges. But some things may never change: respect for the fundamental principles of peace and cooperation in the region, and commitment to consensus decision-making—the glue that binds all the Parties.
Adviser to the ATCM 35 Steering Committee and Former General Manager, Strategies Branch, Australian Antarctic Division