As the Antarctic Treaty System approaches its seventh decade, it faces challenges from the impacts of global climate change, calls for increasing economic use of the region, more diverse membership, and geopolitical tensions from a shifting international order. Some have suggested that the Antarctic Treaty System requires a major overhaul or is even under threat. However, the Antarctic Treaty System was formed during a period of heightened geopolitical tension and has demonstrated remarkable institutional resilience in its capacity to respond to new issues, both inside and outside the Antarctic region. While the contemporary challenges for the Antarctic Treaty System are significant, with careful management, they can be navigated in a manner that further demonstrates the resilience of the system.
The Antarctic: Peace and Science After two years of negotiations, the Antarctic Treaty was signed on December 1, 1959, by twelve states and entered into force on June 23, 1961. The Antarctic Treaty was essentially a peace treaty that aimed to ease international political tensions over the ownership and strategic use of the Antarctic. The Antarctic Treaty has successfully achieved its goal for Antarctica to be “used exclusively for peaceful purposes and not become the scene or object of international discord”. Future challenges will, however, require careful management by treaty parties, as well as added responsibilities for the United States (as the Antarctic Treaty depository state) and Australia (as depository state for the Convention the Conservation of Antarctic Marine Living Resources), the Antarctic Treaty System has a strong track record of meeting and adapting to new challenges. As we pass the sixtieth anniversary of the Antarctic Treaty and approach the thirtieth anniversary of conclusion of the 1991 Protocol on Environmental Protection, governance challenges in Antarctica are increasing. The Antarctic Treaty and its associated instruments and institutions, known as the Antarctic Treaty System (ATS), have survived internal debate and external challenges in the past. Now the question is: can the Antarctic Treaty System continue to adapt to new challenges and manage future pressures, including increased competition for marine resources in the Southern Ocean?
Current Challenges The warming global climate is a key driver of biophysical change and political tension within the Antarctic Treaty area. Antarctica and its Southern Ocean face the direct effects of global climate change, with potential impacts on sea-ice and marine ecosystems, as well as depleting ice sheets and land areas. Considerable scientific effort has been directed at improving scientific understanding of the importance of the region in the global climate system. However, the rapidly transforming global environment is likely to cause changes in the Antarctic ecosystem, such as shifts in the habitats of commercially valuable marine life, which may generate new geopolitical tensions among the Antarctica treaty states as resource competition increases.
Unfortunately, the Antarctic Treaty System has been relatively slow to engage with climate change, even though additional research in Antarctica is fundamental in understanding the resulting global effects. Although climate change has a direct impact on Antarctic logistics and research operations, the annual Antarctic Treaty Consultative Meeting (ATCM) and meeting of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) have been reluctant to engage directly with the discussion around climate change, such as the ambition and pace of global emissions reduction, instead deferring on such issues to the slow-moving negotiations within the United Nations climate change process. The Antarctic Treaty Consultative (ATCPs) have instead maintained an internal focus and a modest ambition of reducing greenhouse gas emissions from Antarctic research operations. Attempts to address the impacts of climate change through work plans and conservation measures within CCAMLR have not yet been passed as Russia and China have not agreed to these proposals. It appears that concerns over potential limits on future access to marine resources is a key factor in the position of these two states. Such inaction on climate change may lead to a hardening of attitudes within Antarctic decision-making forums, further constraining future action.
Increased tourism, shipping, fishing, and bioprospecting in the Southern Ocean have also resulted in significant governance challenges. For instance, until the COVID 19 events of the last year, Antarctic tourism was expanding rapidly, with nearly seventy-five thousand people visiting the continent over the 2019-2020 season. This expanding tourist activity will bring increased risk of environmental damage and maritime incidents. Furthermore, debates over resource use and access have increased geopolitical tensions between Antarctica Treaty states. At the same time, there are a number of sectoral-focused regimes addressing these issues from outside the Antarctic Treaty System, including marine pollution (e.g. UN Convention on the Law of the Sea), natural and cultural heritage (e.g. World Heritage Convention), species and biodiversity protection (e.g. UN Convention on Biological Diversity), potentially leading to competing claims for governance competency in issue areas such as marine biodiversity conservation and access to genetic resources. There also remains an ongoing debate over the longevity of the current mining prohibition under the 1991 Protocol on Environmental Protection, with some suggesting that it may come under threat at a possible review conference in 2048. The current negotiations for an agreement under the United Nations Law of the Sea Convention to conserve marine biodiversity in areas beyond national jurisdiction is another potential pressure point for Antarctic governance. Despite its members’ experiences in such issues through the Commission for the Conservation of Antarctic Marine Living Resources, the ATS has not yet formally engaged in these debates.
The membership of the Antarctic Treaty has also significantly expanded from its original twelve states, which may lead to new members questioning key governance norms. Between 1981 and 1990, a period when the ATS was under severe strain, thirteen parties gained consultative party (i.e. decision making) status and eleven new parties acceded to the treaty. At present, there are fifty-four parties: twenty-nine consultative and twenty-five non-consultative. The fifty-four current states include new powers China and India, with their own geopolitical interests, and accessions in the last decade from Malaysia, Pakistan, Mongolia, Iceland, and Kazakhstan. Malaysia, a staunch critic of the Antarctic Treaty System between 1982 and 2004, acceded to the Antarctic Treaty in 2011. This recent pattern of new membership shows ongoing interest and engagement with the Antarctic Treaty System but may place stress on traditional interpretations of key governance norms; for example, those norms related to Antarctic territorial claims, or the practice of consensus in decision-making within its forums. For instance, the consensus decision-making practice may be used by some states as a way of blocking decisions that have the support of most states (say on forming new marine protected areas), rather than a means of strengthening the ATS by reaching a mutually agreeable position on issues that require attention.
Careful Management Required Despite a broadening and deepening of the membership and activities of the ATS, some critics have argued that it has been slow to respond to emerging issues, it requires a major overhaul, and it is under threat. The Antarctic Treaty can continue to provide a framework for governance of the region. However, just as parties worked to maintain consensus in the wake of internal differences and external challenges in the 1980s, the Antarctic Treaty states must ensure that current challenges do not lead to deeper fractures.
One way forward may be a considered discussion of Antarctic Treaty states’ interests, so as to ensure the continued alignment of the states’ interests and commitment in maintaining Antarctica as a “natural reserve devoted to peace and science.” As discussed above, they must also be attentive to the practice of consensus decision making to ensure that single members are not given a veto that constrains action supported by a significant majority, which then limits the ability of the Antarctic Treaty states to respond to pressing issues. It will also be important to ensure that any new international rules operating in the Antarctic Treaty area, such as those on biodiversity protection being negotiated under the Law of the Sea, do not undermine the ATS’s competence in governing this important region of our planet.
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Professor Marcus Haward is a specialist researcher on oceans and Antarctic governance at the Institute for Marine and Antarctic Studies, University of Tasmania, Australia
Associate Professor Jeffrey McGee is an international lawyer researching on Antarctic, marine and climate change law at the Institute for Marine and Antarctic Studies and Faculty of Law, University of Tasmania, Australia. He is an affiliated researcher with the Standing Committee on the Humanities and Social Sciences of the Scientific Committee on Antarctic Research
1. In writing this commentary we reflect on the work of Chris Joyner 1948-2011, a Professor of Government and Foreign Service at Georgetown University, a colleague, friend, and frequent visitor to University of Tasmania. Chris’s contribution to the study of Antarctic law and governance was important and remains a significant legacy and influence.
2. The Antarctic Treaty, Preamble.
3. The Antarctic Treaty adopted 1 December 1959, entered into force 23 June 1961, 402 UNTS 71.
4. Protocol on Environmental Protection to the Antarctic Treaty, adopted 4 October 1991, entered into force 14 January 1998 30 ILM 1455 (1991).
5. Nengye Liu, ‘What are China’s intentions in Antarctica?’, The Diplomat, June 14 2019, available at: https://thediplomat.com/2019/06/what-are-chinas-intentions-in-antarctica/
6. Jeffrey McGee & Marcus Haward, “Antarctic governance in a climate changed world”, Australian Journal of Maritime & Ocean Affairs, 11: 2, 2019: 85-87.
7. Rosemary Rayfuse, “Climate Change and Antarctic Fisheries: Ecosystem Management in CCAMLR”, Ecology Law Quarterly, 45, 2018: 53-81, see particularly 73-81.
8. International Association of Antarctica Tour Operators, 2021, Data and Statistics, https://iaato.org/information-resources/data-statistics/
9. Supra n6, pp.78-93
10. Peter J. Beck, ‘The United Nations and Antarctica 2005: The End of the Question of Antarctica?’, Polar Record, 45,2006: 217-227.
11. Nature Editors, ‘Reform the Antarctic Treaty’, Nature, 558: 161
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