4 International legal framework
4.1 The Antarctic Treaty
4.1.1 Introduction
Under Article VI of the Antarctic Treaty, the provisions of the treaty apply to the land and marine area south of 60° S latitude. This means that the treaty covers the Norwegian areas of Peter I Øy and Dronning Maud Land, but not Bouvetøya, which lies further north.
Prior to the conclusion of the Antarctic Treaty, seven states had laid claim to territory in Antarctica: Norway, the United Kingdom, New Zealand, Australia, France, Argentina and Chile. Article IV of the Treaty is the very cornerstone of international collaboration under the Antarctic Treaty. This provision preserved the status quo of the territorial claims asserted by states regarding their right of sovereignty. No party may be considered to have renounced any claim, nor may any new claims be asserted, on the basis of activities carried out while the treaty is in force. Article IV states that nothing in the treaty shall be interpreted as a renunciation or diminution of any claim or right of claim to territorial sovereignty over an area of Antarctica, or as a change in the view of any of the treaty parties regarding a claim to territorial sovereignty, and furthermore that no act or activity shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty or create any right of sovereignty over an area in Antarctica. No new claim or enlargement of an existing claim to territorial sovereignty of an area in Antarctica is permitted.
These issues have thus been ‘put on ice’, or, as has also been said, the parties have ‘agreed to disagree’. The effect is twofold. Firstly, it formalises the obligation of claimants not to assert new claims. Secondly, the other treaty parties are not to impede the claimant states’ rights and obligations in the area stemming from other conventions, such as the UN Convention on the Law of the Sea.
Figure 4.1 At the opening of ATCM XII in Tromsø, May 1998. The meeting chairman, Ambassador Rolf Trolle Andersen, is flanked by the meeting’s executive secretary, Jon Ramberg (left), and its chief rapporteur, Odd Gunnar Skagestad (right). It was the second time the meeting was held in Norway.
Photo: Private archive
4.1.2 Antarctic Treaty Consultative Meetings
Any state that is a member of the United Nations may accede to the treaty; see Article XIII. However, Article IX of the treaty distinguishes between consultative and non-consultative parties. The consultative parties are empowered to make decisions and adopt resolutions regarding the implementation of the Antarctic Treaty. To be entitled to status as a consultative party, a treaty party must be able to demonstrate that it has established research activity in Antarctica. Non-consultative parties have status as observers at the consultative meetings. This distinction was made to ensure that decisions of potential importance to the future of the Antarctic are made by the countries with interests in, and actual knowledge of, the continent.
In addition to the twelve original signatory states, 17 other countries have so far been granted consultative status. In 2015, therefore, the treaty had 29 consultative parties. Including the non-consultative parties, the contracting parties to the treaty now total 51 countries, representing over 80 per cent of the global population.
The consultative meetings under the Antarctic Treaty are held annually in a system called the Antarctic Treaty Consultative Meeting (ACTM). Responsibility for planning and organising meetings rotates among the consultative parties. The ACTM and the activities carried out under the Antarctic Treaty in general have a dedicated secretariat, which was established in 2004 and is located in Buenos Aires, Argentina.
Figure 4.2 Inspection: A Norwegian inspection team in action in accordance with Article VII of the Antarctic Treaty (February 2009).
Photo: Private archive (Inger Holten).
Recommendations, measures, decisions and resolutions are adopted on a consensus basis by the consultative parties present at the meeting. Measures are adopted at the meeting, but must subsequently be approved by all parties before they are legally binding under international law.
4.1.3 Requirement that Antarctica be used for peaceful purposes only
Article 1 of the Antarctic Treaty establishes that Antarctica shall be used for peaceful purposes only and be free from activities of a military nature, including the testing of any type of weapons. Nonetheless, the treaty does not prevent the use of military personnel or equipment for scientific research or other peaceful purposes, such as transport assignments. Furthermore, Article V explicitly states that all nuclear explosions in Antarctica and all disposal of radioactive waste are prohibited.
Articles II and III of the treaty stipulate that there shall be freedom of scientific research in Antarctica, and that the parties shall work to promote international scientific cooperation through such means as sharing information about research programmes and exchanging scientific personnel.
4.1.4 Inspection system
In order to verify compliance with the treaty provisions, a system for inspections was introduced in Article VII that gives the consultative parties free access to inspect one another’s activities and installations. The observers designated by the countries under the procedure set out in Article VII (1) shall have complete freedom of access at all times to every area of Antarctica. The parties are also obligated to notify the other parties in advance of all expeditions to and within Antarctica involving the state party’s ships or nationals, or expeditions that are organised in, or depart from, the party’s territory. Information shall also be provided on all military personnel or equipment that a party intends to bring into Antarctica.
To date, Norway has carried out inspections on four occasions, in January 1990, December 1996, January 2001 and February 2009. The inspections were conducted at research stations belonging to Germany, the United Kingdom, India, Russia, Belgium and South Africa. In recent years, some parties have conducted joint inspections. Certain parties have chosen to inspect activities other than research stations, such as sailboats and cruise ships visiting Antarctica. The activities at the Troll research station have been inspected on four occasions, most recently by a German-South African inspection team and by a US-Russian inspection team in the 2013/14 season. The recommendations of the inspection teams are presented and considered at the ATCM. The recommendations resulting from the Norwegian inspections have concerned issues such as the governance and ownership structure of the research stations of certain countries, the degree of commercial activity at the stations and solutions to ensure environmentally sound operations.
The inspection system is intended as a means of building trust; active use of the right of inspection must also be seen as an appropriate tool for further developing and strengthening the collaborative regime created under the Antarctic Treaty system. The post-inspection recommendations can also be an important contribution to the development of an optimal practice for implementing the provisions of the treaty and the Protocol on Environmental Protection to the Antarctic Treaty (the Environment Protocol). Norway is intent that the recommendations of the inspection teams be followed up, and will work to find an effective means of ensuring a more structured follow-up within the framework of the annual consultative meetings.
4.1.5 Revision opportunities
Under Article XII a consultative party may – once the treaty has been in force for 30 years, which is to say since 1991 – request a review conference to evaluate the effectiveness of the treaty. So far, none of the treaty parties have asked for such a conference or indicated that they wish to withdraw from the cooperative arrangements.
4.1.6 Other agreements in the Antarctic Treaty system
The Antarctic Treaty has also given rise to several other intergovernmental agreements, which – along with the treaty itself – are often referred to as the ‘Antarctic Treaty system’. This network comprises the following agreements:
The Convention for the Conservation of Antarctic Seals (CCAS), from 1972.
The Convention on the Conservation of Antarctic Marine Living Resources (the CAMLR Convention), from 1982.
The Protocol on Environmental Protection to the Antarctic Treaty, signed in 1991.
The Government will:
Actively contribute to ensuring that cooperation under the ATCM takes place in an engaged, effective manner that is relevant to Antarctic developments and challenges.
Use the right of inspection to strengthen cooperation under the Antarctic Treaty, and work to devise a good system within the framework of the annual consultative meetings for responding to the recommendations issued after inspections carried out by various participating states.
Textbox 4.1 UN Convention on the Law of the Sea
The UN Convention on the Law of the Sea of 10 December 1982 entered into force in 19941, and is the most comprehensive, multilateral UN treaty. A total of 167 countries are party to the convention, which is often referred to as the ‘constitution for the seas’. The convention contains detailed rules governing the rights and obligations of states parties and their responsibility to promote sound, peaceful exploitation of marine areas, as well as to safeguard the environment and other general interests.
The UN Convention on the Law of the Sea applies to all marine areas, including those in the Antarctic Treaty’s area of application, which is the area south of 60° S latitude.
The rights of coastal states under the UN Convention on the Law of the Sea follow automatically from their status as claimants. Under the convention, coastal states have the right to establish territorial waters extending up to 12 nautical miles from the baselines and an exclusive economic zone of up to 200 nautical miles. Territorial waters are part of a coastal state’s sovereign territory. A coastal state also has sovereign rights on the continental shelf and in any established exclusive economic zone. So far Norway has not established territorial waters or an exclusive economic zone in the Antarctic. The Act of 27 June 2003 No. 57 relating to Norway’s territorial waters and contiguous zone contains provisions on territorial waters, but this statute does not apply to Dronning Maud Land and Peter I Øy.
Norway presented documentation on the extent of the continental shelf at Bouvetøya and Dronning Maud Land to the Commission on the Limits of the Continental Shelf in New York in 2009. In view of Article IV of the Antarctic Treaty and the interests of Antarctic cooperation, the commission was asked not to consider the documentation relating to Dronning Maud Land for the time being.
1 The convention entered into force for Norway on 24 July 1996.
4.2 The Protocol on Environmental Protection to the Antarctic Treaty
The Protocol on Environmental Protection to the Antarctic Treaty (the Environment Protocol) was signed on 4 October 1991. Norway played an active role in drafting the protocol. As a claimant state in Antarctica, Norway has a special interest in and responsibility for determining how to safeguard the Antarctic environment in the best way. Norway has therefore emphasised the importance of securing a binding, comprehensive regime for protection of the Antarctic environment.1
Under Article 2 of the Environment Protocol, the protocol and other appurtenant protocols and annexes are applicable to the Antarctic Treaty area and to dependent and associated ecosystems.
Under the protocol, the parties commit to ensuring comprehensive protection of the Antarctic environment and dependent and associated ecosystems. Article 2 of the protocol designates Antarctica as a natural reserve devoted to peace and science. Article 3 of the protocol further states that protection of the Antarctic environment, including its wilderness character and its value for aesthetic purposes and for the conduct of scientific research, shall be fundamental considerations in the planning and conduct of all activities in the Antarctic Treaty area.
4.2.1 Prohibition of mineral resource extraction
Under Article 7 of the Environment Protocol, all activities relating to mineral resources, other than scientific research, are prohibited. This prohibition can only be rescinded in accordance with clearly defined procedures. Until 50 years have elapsed from the protocol’s entry into force, meaning until 2048, the prohibition can only be set aside by a consensus decision of the Antarctic Treaty Consultative Parties.
Article 25 of the protocol further states that if, after 50 years, one or more of the Antarctic Treaty consultative parties requests it, a conference shall be held to review the operation of the Environment Protocol. Such a review conference may adopt amendments, including amendments to the prohibition of mineral resource activities, by majority decision. However, the majority must consist of at least three fourths of the states that were consultative parties at the time the protocol was adopted. Article 25 (5) also explicitly states that the prohibition on mineral resource activities shall remain in force until it is replaced by a legally binding regime for such activities.2 To date, no parties have requested that the prohibition be rescinded or amended. As is the case for the Antarctic Treaty, it is considered unlikely that any parties would request a review conference, or that there would be sufficient agreement on a potential proposal to rescind the prohibition.
In conjunction with the Environment Protocol’s entry into force, a separate Committee for Environmental Protection (CEP) was established (pursuant to Article 11 of the Protocol). The CEP convenes during the annual Antarctic Treaty meetings to provide environmental, scientific and technical advice and to formulate recommendations to the parties in connection with the implementation of the Environment Protocol. Norway chaired the CEP during its first few years, and laid the foundation for the independent advisory role it still plays in cooperative activities associated with the Antarctic Treaty.
4.2.2 Annexes to the Environment Protocol
In addition to the protocol itself, six annexes have been adopted to date which regulate environmental impact assessments, conservation of Antarctic fauna and flora, waste disposal and waste management, prevention of marine pollution, area protection and management (which covers historic sites) and management of and liability arising from environmental emergencies. Annex VI (relating to liability in emergencies involving an imminent threat of harmful environmental impacts) was adopted in 2005 and will enter into force once approved by all the consultative parties. Norway approved this annex in 2013. The purpose of Annex VI is to make the party conducting an activity in Antarctica liable for taking prompt and effective action in cases of environmental emergencies. Any party causing such environmental emergencies is liable for the costs incurred if other parties must take action in response. In cases where no response action is taken, a compensation payment is to be made into a special fund that the treaty parties have agreed to establish.
The Environment Protocol and associated annexes have been incorporated into Norway’s Antarctic regulatory framework by means of the regulations relating to the protection of the environment and safety in Antarctica; see Chapter 5, Legislation.
Cooperation under the Antarctic Treaty is significantly strengthened by the Environment Protocol, which underscores the importance of protecting and conserving the Antarctic environment and dependent and associated ecosystems as one of the fundamental pillars of Antarctic cooperation, together with peace and research.
The Government will:
Participate actively in the work under the Environment Protocol and support the prohibition of mineral resource extraction in Antarctica.
Ensure a sound basis for scientific assessment and advice by the Committee for Environmental Protection, through strong representation by Norwegian experts.
4.3 Convention on the Conservation of Antarctic Marine Living Resources
The Convention on the Conservation of Antarctic Marine Living Resources (the CAMLR Convention) was adopted on 20 May 1980 and entered into force in 1982. The Convention regulates the management of marine living resources in the Antarctic Treaty area and the marine areas south of the Antarctic Convergence. The Antarctic Convergence is the region where cold water masses from the south meet the warmer waters further north. South of this dividing line of currents there is a unique marine ecosystem. For practical purposes, the boundary of the Antarctic Convergence is defined by coordinates in Article 1, and is therefore regarding as lying along this line.
According to Article II, the objective of the convention is the conservation and responsible use of marine living resources in Antarctica. However, under Article VI the management of whales and seals is governed by the International Convention for the Regulation of Whaling and by the Convention for the Conservation of Antarctic Seals.
The CAMLR Convention is premised on the understanding of the Antarctic marine ecosystems as a coherent, complex interaction between the Antarctic marine living resources and their physical environment. This necessitates an ecosystem-based management regime, aimed at conserving the natural interactive relationships between the different species, both those that are harvested and those that are dependent on the species being harvested. As data and knowledge have gradually been collected, the regulatory framework has been further elaborated, with catch quotas imposed and certain areas closed. Knowledge of the status and development of stocks is limited, so low quotas have been set to prevent the overexploitation of fragile ecosystems and ensure that species dependent on the species being exploited are not negatively affected.
Management is carried out through the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). One of the commission’s main duties is to adopt regulations, based on scientific data reviewed by CCAMLR’s Scientific Committee, governing the right to fish as well as quotas, by-catch, fishing gear, catch areas, catch periods and various area-based management measures. Since it was first established, CCAMLR has played a key role in the development of international marine environment policy. CCAMLR has been successful in achieving its aims, and continues its active efforts to combat illegal, unreported and unregulated fishing.
Twenty-four states and the European Union are members of CCAMLR, while a further 11 states are parties to the CAMLR Convention. CCAMLR meets once a year in Hobart, Australia, where its permanent secretariat is located.
The Government will:
Actively contribute to ensuring that CCAMLR remains at the forefront of efforts to develop an ecosystem-based regional resource management regime.
Textbox 4.2 Some treaties of particular importance for Antarctica
The UN Fish Stocks Agreement – formally, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks – was adopted on 4 August 1995 and entered into force on 11 December 2001. The agreement supplements the UN Convention on the Law of the Sea and provides an international legal framework for conservation and management regimes for straddling and highly migratory fish stocks. The Agreement contains important principles for the sustainable management of fish stocks that migrate between the high seas and the Exclusive Economic Zone (EEZ) of the various states. Under the agreement, the parties are to collaborate, either directly, regionally or sub-regionally, on the management of straddling and highly migratory fish stocks.
The Agreement on the Conservation of Albatrosses and Petrels (ACAP) is a sub-agreement under the Convention on the Conservation of Migratory Species of Wild Animals (the Bonn Convention) of 1979. The ACAP entered into force in 2004, and requires the parties to the Agreement to take measures to conserve albatrosses and petrels.
The Convention for the Conservation of Antarctic Seals (CCAS) was adopted in 1972 and regulates the harvesting and management of Antarctic seal stocks. The CCAS applies to the same area as the Antarctic Treaty, and to specific species of seals.1 None of these seal species may be killed or captured within the convention area, except in accordance with conditions established by the Convention. (Three of the species are completely protected under the annex to the Convention, while quotas have been established for the three other species; see points 1 and 2 of the annex.) For economic and political reasons, no sealing is carried out in the Antarctic today. Three seal reserves have been created under the CCAS.
The International Convention for the Regulation of Whaling (ICRW) was adopted in 1946 and regulates the conservation and management of whale stocks. A special commission – the International Whaling Commission (IWC) – was established for this purpose. In 1994 the IWC designated a whale sanctuary (the Southern Ocean Whale Sanctuary) in the area from Antarctica to 40°S latitude. Norway chose to abstain from voting, because the proposal was not based on a scientific recommendation. However, Norway did not enter a reservation in respect of the decision.
The International Convention for the Prevention of Pollution from Ships (MARPOL) of 1973 aims at preventing pollution of the sea, land and air by shipping activities. In 1990 a decision was adopted to the effect that the marine area south of 60° S latitude is to be considered a ‘special area’ in which discharges of oil or substances containing oil and all types of waste are prohibited. In 2011, the IMO prohibition of the use and carriage of heavy fuel oil in the same areas entered into force.
The main objective of the International Convention for the Safety of Life at Sea (SOLAS) of 1974 is to establish minimum standards for the construction, equipment and operation of ships, thereby helping to increase the safety of life at sea.
The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal of 1989 makes it illegal to export hazardous wastes or other wastes for disposal in the area south of 60° S latitude.
Under the Unidroit Convention on Stolen or Illegally Exported Cultural Objects of 1995, a cultural object that is stolen or illegally removed from the territory of a state party to the Unidroit Convention shall, upon request, be physically returned to the territory of that state. Norway acceded to the convention in 2001.
The Unesco Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 lays down rules for the protection of cultural heritage in the fight against the illicit trafficking of cultural property.
On 15 May 2015, the International Maritime Organisation (IMO) adopted an additional set of requirements for ships operating in polar waters (the Polar Code). This code imposes new safety and environmental requirements in the Antarctic that supplement the current SOLAS AND MARPOL provisions.
1 The southern elephant seal, leopard seal, Weddell seal, crabeater seal, Ross seal and southern fur seal