The Antarctic Treaty System: A Model of Legal Creativity and Cooperation

Abstract

The Antarctic Treaty System (ATS), founded upon the Antarctic Treaty of 1959, has proved to be one of the successes of twentieth century international law and diplomacy. Over the last 50 years, the Antarctic Treaty has preserved the Antarctic continent as a zone of peace and cooperative scientific research and provided an effective model for the management of regions beyond the limits of national jurisdiction according to common values. The reasons for this success are, however, by no means obvious to the casual observer. The language of the treaty itself and of the related conventions on seals, marine living resources, and minerals and the Protocol on Environmental Protection is deliberately ambiguous and vague. The regime has weak inspection, enforcement, and governance mechanisms and has been slow to respond to conflict in the Southern Ocean over whaling and unregulated fishing. A key to understanding both the successes and limitations of the ATS lies in the differing juridical positions of the member states on sovereign claims to Antarctic territory. Every ATS agreement, measure, and decision and state practices in respect to Antarctica should be viewed through the prism of these national perspectives on sovereignty. This paper sets out the evolution of the ATS and explores the fundamental role of Article IV and “sovereign neutrality” as the glue that binds the Antarctic Treaty and its interlinked measures, decisions, and agreements. Article IV has enabled the Consultative Parties to sidestep potential conflicts over territorial claims and to manage activities in Antarctica in the wider interests of the international community. For the second decade of the twentyfirst century, the vital question is whether the ATS is capable of responding effectively to the challenges posed by illegal fishing and whaling, climate change, commercial tourism, energy, and human security. The litigation in the Japanese Whaling case, brought by the Humane Society International in the Australian Federal Court, provides a salutary warning of the risks to the ATS of unilateral assertions of national jurisdiction over activities in the Antarctic region. The Consultative Parties are now on notice to justify the legitimacy of their mandate and to demonstrate the capacity of the ATS to respond to contemporary Antarctic issues. The 50year historical evolution of the ATS and its demonstrated capacity for dynamic growth suggest that the regime and its members have the flexibility and political will to maintain its success in the future.