Vol. 25 No. 5 (May 2015) pp. 77-80
ANTARCTICA IN INTERNATIONAL LAW by Ben Saul and Tim Stephens (eds). Portland, OR: Hart Publishing Ltd. 2015. lxxii + 1062 pp. Paper $100.00. ISBN: 978-1-84946-731-5.
Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor of Political Science, University of California, Davis. Email: email@example.com.
From time immemorial, Antarctica has been a special place in the world; elusive, remote, generally inhospitable to flora, fauna and people, mysterious, daunting, dangerous even, and yet perhaps able to yield, despite all the ice and snow and freezing water, enormous future wealth, maybe from oil, maybe from gas, maybe from other minerals, if there were just some way to deal economically with all the intervening ice and snow and freezing seas, which so far there isn’t. There is, I think, a resulting widespread perception that Antarctica is a relatively unchanging part of the world, a polar wilderness-on-ice that these days is visited, apart from scientists, only by rich, adventurous, and conspicuously consumptive tourists who have tired perhaps of South Pacific beaches, Central American forests, and African wildlife safaris.
In fact, tourism is a significant economic activity in Antarctica (Bauer 2011). If we exclude scientific research, which involves spending a lot of money in Antarctica but is not directly undertaken to make money there, tourism is the only economically significant economic activity in Antarctica apart from fishing (Miller 2014). And both fishing and tourism, as well as scientific research (Chen and Blume 1997), have had major impacts on the Antarctic environment since the end of the Second World War, impacts which are likely to intensify in coming decades.
If we then factor into the account environmental changes that manifest in Antarctica but are largely exogenous, most notably and most ominously the changes to the ice sheets and ice shelves and to the Southern Ocean that stem from climate change (SCAR 2009), perceptions start to shift. We may not want to go as far as those who see the contemporary threats that change is bringing to the Antarctic as numerous enough and serious enough to say that it is a continent “on the brink” (Burleson and Huang 2015 p. 316). But it is a persistent feature of post-World War II Antarctic scholarship that the continent faces grave threats and that only bold and imaginative legal and political initiatives will save it.
In 1948, for example, when the chief threat during the Cold War was thought to come from the Soviet Union, the United States proposed to put Antarctica under a United Nations trusteeship (Bush 1988 pp. 461-464). Others have sought a declaration that the continent is the common heritage of mankind or a world park, and as such ought to be placed beyond any claims of national sovereignty (Zou 1991). Lee (2005) even goes so far as to suggest, although without anyone taking him too seriously, I think, that protection of the Antarctic requires the institution of world government.
Much the more mainstream view, however, is that the Antarctic Treaty System (ATS), which has grown up around the Antarctic Treaty agreed to in 1959, after the U.N. trusteeship proposal failed, and which is at the center of this new book by Saul and Stephens, has long been and remains a sturdy bulwark against adverse changes to Antarctica. The ATS, they argue, has shown itself to be capable of constructive evolution and, further, that it remains flexible enough to adapt to ever changing circumstances. [*77]
Indeed, Saul and Stephens are nothing if not fulsome in their praise of the international legal regime for Antarctica, saying from the outset that the ATS has “constantly and effectively adapted to meet new challenges,” that it is even now “evolving into an increasingly sophisticated, inclusive, dynamic and responsive governance regime” (p. lv), and later that “in a highly creative way” the ATS has “produced a peaceful, stable, effective and widely accepted regime for [international] cooperation on a range of scientific, environmental, and related issues” (p. lxxi).
In the lexicon of political science and international relations, as well as international law, if these statements were indisputably true, they would indicate that the ATS is quite exceptional. Indeed, the first question from the lips of those who picked up this book and started to read its introduction, quoted above, would be “Gosh, how did that happen? In Antarctica?!”
Of course, the nearly fourteen hundred pages in the book are not chiefly devoted to a methodologically compelling demonstration of the superior evolutionary adaptability of the ATS. The book is primarily a compilation of ATS-related documents, the third such to appear since 1982 (Bush 1982, 1988; Rothwell and Davis 1997). The boldly assertive introduction occupies only seventeen pages and the great bulk of the book is taken up with reproductions of the documents themselves and with other useful materials, one of them a fascinating twenty-seven page Antarctic chronology that begins with Pierre Bouvet de Lozier’s 1739 French expeditionary voyage and the sighting of what is now called Bouvet Island, in the South Atlantic.
The judgments Saul and Stephens enter about the evolution of the ATS are best regarded, therefore, as preliminary, although they will not come as any surprise to other scholars of international law in the Antarctic. Even though they take a less sanguine view of the future adaptability of the ATS, most especially in meeting the challenges of climate change and the growing interest of China in the continent, Burleson and Huang, for example, aver that the regime “has evolved from its original purpose of settling sovereignty claims…to one that provides for the governance of Antarctica” (2015 p. 320) and that this makes it noteworthy. “The ATS,” they write, “is a remarkable treaty system, expanding both its purpose and scope beyond territorial disputes and scientific research to a reasonably comprehensive environmental regulatory and protective legal regime” (Burleson and Huang 2015 p. 329).
Moreover, the notion that the ATS regime might be a model of treaty evolution plays into a budding interest in the origins, life and death of treaties, which stands against a more established view that, since treaties are solemn agreements between states, they cannot be understood to change their purposes over time unless the signatory states themselves formally and expressly revise the declared purposes of their original agreement (Arato 2013; Adam 2014; Bjorge 2014; Couzens 2014; Wandesforde-Smith 2015). The outputs produced by institutions that treaties create are, according to this received wisdom about the realpolitik of international law, little more than epiphenomena.
So, it is worth asking briefly where exactly Saul and Stephens locate the adaptive capacity of the ATS that they so clearly admire. It is significant, they say, that “the Antarctic Treaty was…intended to establish an evolving international legal regime that would grow over time to deal with Antarctic questions as they arose” (pp. lx-lxi). The [*78] 1959 agreement laid a foundation on which to build an ATS that now encompasses the 1972 Convention for the Conservation of Antarctic Seals (CCAS), which is for all intents and purposes a dead treaty, because there is no more commercial sealing in the Antarctic, the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), the 1998 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), another dead treaty, because although it was adopted it never entered into force, and the 1991 Protocol on Environmental Protection to the Antarctic Treaty, sometimes called the Madrid Protocol but more generally simply referred to as the Environmental Protocol, which was adopted when political support for CRAMRA, and for the mining it would have allowed in Antarctica, evaporated.
The evolutionary process began in 1961, when the first biennial Antarctic Treaty Consultative Meeting (ATCM) held in Canberra adopted a series of recommendations. Later, as the agenda of subsequent ATCMs became fuller and more complex, the outputs of the meetings needed to be diversified, so that those legally binding on parties, once all the consultative parties had approved them, could be clearly differentiated from those dealing with internal organizational matters and those that were non-binding. So, in 1995, by which time the volume of business required annual ATCMs, begun in 1991, the legal status of various ATCM outputs was clarified by the adoption of Decision 1 at the nineteenth ATCM held in Seoul.
Under Decision 1, legally binding outputs would be called measures. Administrative matters internal to the ATS would be dealt with through decisions. And recommendations would be replaced with equally recommendatory resolutions. The legal outputs of CCAMLR and the Environmental Protocol follow the same nomenclature.
The net result, as Saul and Stephens describe it, is that
“In recent practice, legally binding measures tend to be confined to the technical or scientific designation of…protected areas and historic sites. Where there is less consensus, as on more political or policy oriented issues, non-binding resolutions are more common. Even so, such ‘soft law’ can still shape behavior on the ground amongst the relatively small community of states and actors in Antarctica. Precisely because resolutions do not have immediate legal effects, they may be easier to agree upon and reflect nascent normative agreements. Even if they do not coalesce into ‘harder’ norms over time, they can still continue to influence community expectations of good Antarctic practice” (pp. lxi-lxii).
This ability, then, to multiply but also clearly to differentiate the decision-making outputs of the ATS is one of the keys to its evolutionary success. It gives the appearance of responsiveness. It may help to promote effectiveness. But other elements of the Antarctic treaty regime are also in play.
With respect to inclusiveness, for example, the two-tier structure of state membership clearly plays a role. When ATCMs assemble each year, decision making power is vested in the Antarctic Treaty consultative parties (ATCPs), which include the seven states making territorial claims to Antarctica, other states that participated in the Washington Conference that drafted the Antarctic Treaty, and still other states subsequently demonstrating a substantial interest in the continent by undertaking research, for a total [*77] of twenty-nine ATCPs. There is then a second tier of membership open to any country and consisting now of twenty-three states with a self-declared interest in Antarctic affairs, for whatever reason, but they are non-consultative parties and have a voice but no vote in ATCM proceedings. Although China’s participation as an ATCP was originally vetoed by the United States, China became a consultative party in 1983.
The ability of the ATS regime to deal with at least some issues as they arose has also been shaped by what Saul and Stephens call a “delicate and ambiguous compromise that is central to the stability of the ATS, allowing parties to manage Antarctic affairs in a co-operative manner without having either to defend or protest territorial interests” (p. lxii).
Some potentially contentious and disruptive issues have, in other words, been taken off the table. Disputes over sovereignty have been put on hold for the life of the Antarctic Treaty, which could have been reviewed after thirty years but remains unchallenged. And the making of maritime claims to the continental shelf has produced no major difficulties, because “While maintaining their entitlement to sovereignty as coastal states, the countries claiming territory in Antarctica have not sought to assert jurisdiction inconsistently with the Antarctic Treaty,” (p. lxvi) making instead very careful and deferential submissions to the Commission on the Limits of the Continental Shelf. And for their part the non-claimant states have shown restraint in objecting to claimants’ maritime ambitions, the reciprocal result being “tolerance towards…’claims’ to extended continental shelves from sub-Antarctic islands even though these extend in some cases within the Antarctic Treaty Area and therefore are at odds with the ATS” (p. lxvi).
The other factor that has also clearly enabled evolution in the ATS is success. Although not perfect and challenged by illegal, unreported and unregulated fishing, the extensive framework established by CCAMLR for managing marine living resources found south of the Antarctic Convergence, including finfish, molluscs and crustaceans, is widely credited with the development of effective conservation measures for heavily targeted species and with innovative enforcement against vessels fishing illegally in remote polar seas that are notoriously hard to police (p. lxvii). And the Environmental Protocol with its six detailed annexes “provides a highly effective, ecosystem-based system for Antarctic environmental management” (p. lxviii).
The ATS, then, has learned how to keep its house in order, and did so without having a treaty secretariat until 2004. It has learned to be comfortable dealing directly with a limited but important set of issues, while putting other contentious issues to the side. And it has learned how to be successful in Antarctica addressing generic resource and environmental management problems in which there is widespread international interest.
Along the way, the ATS has, of course, generated an enormous volume of paper. So, even at nearly fourteen hundred pages the Saul and Stephens book has to be selective. The book reproduces all the ATS framework treaties, including CRAMRA even though it has fallen into abeyance. There is a brief section on the creation of the Antarctic Treaty Secretariat, and then some four hundred and twenty pages reproducing the core documentary outputs of the ATCMs, including those relating to the Committee on Environmental Protection established by the Environmental Protocol, and most of those produced by CCAMLR save for some narrowly targeted at particular species. [*79] Other parts of the book contain provisions of international treaties relevant to Antarctica, such as those on whaling and pollution from ships, materials generated by the United Nations General Assembly, a handful of international and domestic court cases, and a variety of bilateral agreements.
The book is, in brief, a cornucopia of sources with which to begin an initial but reasonably detailed examination of where the ATS came from, what it has been doing, and what it has accomplished. Those doing a deep dive, as it were, into Antarctic waters will have to supplement this most recent collection with those that appeared earlier (Bush 1982, 1988), as Saul and Stephens acknowledge (p. lxxi), particularly for historical and national materials. But there is certainly enough here to sustain serious student research and open a fascinating window into international law at work.
Adam, Rachelle. 2014. THE ELEPHANT TREATIES: THE COLONIAL LEGACY OF THE BIODIVERSITY CONSERVATION CRISIS. Hanover and London: University Press of New England.
Arato, Julian. 2013. “Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations.” YALE JOURNAL OF INTERNATIONAL LAW 38(2): 289-357.
Bauer, Thomas G. 2011. TOURISM IN THE ANTARCTIC: OPPORTUNITIES, CONSTRAINTS AND FUTURE PROSPECTS. New York: Routledge.
Bjorge, Eirik. 2014. THE EVOLUTIONARY INTERPRETATION OF TREATIES. Oxford: Oxford University Press.
Burleson, Elizabeth and Jennifer Huang. 2015. “Governance of Climate Change Impacts on the Antarctic Marine Environment.” In CLIMATE CHANGE IMPACTS ON OCEAN AND COASTAL LAW: U.S. AND INTERNATIONAL PERSPECTIVES, ed. Randall S. Abate. New York: Oxford University Press, 315-343.
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Chen, Jie and Hans-Peter Blume. 1997. “Impact of Human Activities on the Terrestrial Ecosystem of Antarctica: A Review.” POLARFORSCHUNG 65(2): 83-92.
Couzens, Ed. 2014. WHALES AND ELEPHANTS IN INTERNATIONAL CONSERVATION LAW AND POLITICS: A COMPARATIVE STUDY. New York: Routledge.
Lee, Martin Lishexian. 2005. “A Case for World Government of the Antarctic.” GONZAGA JOURNAL OF INTERNATIONAL LAW 9: 73-94.
Miller, Denzil G.M. 2014. “Antarctic Living Marine Resources: ‘The Future Is Not What It Used to Be.’” In ANTARCTIC FUTURES: HUMAN ENGAGEMENT WITH THE ANTARCTIC ENVIRONMENT, eds. Tina Tin, Daniela Liggett, Patrick T. Maher and Machiel Lamers. New York: Springer, 61-96.
Rothwell, Donald R. and Ruth Davis. 1997. ANTARCTIC ENVIRONMENTAL PROTECTION: A COLLECTION OF [*80] AUSTRALIAN AND INTERNATIONAL INSTRUMENTS. Sydney: Federation Press.
SCAR (Scientific Committee on Antarctic Research). 2009. ANTARCTIC CLIMATE CHANGE AND THE ENVIRONMENT. Cambridge, U.K.: Scott Polar Research Institute.
Wandesforde-Smith, Geoffrey. 2015. “On the Life and Death of Wildlife Treaties.” JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY 18(1): 84-96.
Zou, Keyuan. 1991. “The Common Heritage of Mankind and the Antarctic Treaty System.” NETHERLANDS INTERNATIONAL LAW REVIEW 38(2): 173-198.
© Copyright 2015 by the author, Geoffrey Wandesforde-Smith.