The extended continental shelves of sub-Antarctic Islands: implications for Antarctic governance

Abstract

ABSTRACTThis article considers the legal and policy issues surrounding the establishment of continental shelves beyond 200 nautical miles (nm) from sub-Antarctic islands. Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) a coastal state may establish a continental shelf that extends seawards beyond 200 nm where the continental shelf continues, normally to a total distance of no more than 350 nm. To establish such an extended continental shelf (ECS) a coastal state must file a submission of delineation data with the Commission on the Limits of the Continental Shelf (CLCS), a technical body established by UNCLOS.The rights of coastal states present particular difficulties in the Antarctic Treaty area (ATA), due to the general non-recognition of the seven territorial claims and the provisions of article IV of the Antarctic Treaty. Accordingly, Antarctic claimant states are generally adopting a restrained approach to the issue of ECS as appertaining to claimed territories in Antarctica in their submissions to the CLCS. These states appear to recognise that they cannot secure the normal prerogatives of a coastal state from territorial sea baselines within the ATA, at least for the duration of the present Antarctic Treaty system (ATS). A different approach is being taken with respect of sub-Antarctic islands lying north of the ATA. Sovereignty over sub-Antarctic territory north of the ATA is, with the exception of South Georgia and the South Sandwich Islands, not contested. Accordingly, rights in relation to any continental shelf attaching to sub-Antarctic islands may be realised, apparently without challenging the Antarcticmodus vivendi.However, the ECS of several sub-Antarctic islands penetrate the ATA. In 2008, the CLCS largely endorsed the 2004 Australian submission that included data on ECS from Australia's sub-Antarctic islands of Macquarie Island and the Heard and McDonald group. The ECS from both groups penetrates south of 60°S into the ATA, in the case of Heard and McDonald covering a huge area. Although the wider dispute regarding sovereignty between the United Kingdom and Argentina adds complexity to the case, the South Sandwich Islands are sufficiently close to the ATA that their continental shelf also penetrates the area. In the event that the CLCS were ever able to make a recommendation on a submission of data relating to the South Sandwich Islands (something that could only occur with the consent of Argentina and the United Kingdom) the result would be a situation similar to that pertaining to the Australian sub-Antarctic islands.The consequence of these developments is that rights to seabed areas within the ATA have been assigned to individual states. On the face of it, this appears to be in conflict with the norm of collective responsibility that was established by the Antarctic Treaty 50 years ago precisely to constrain sovereignty issues in the region. What is suggested by this practice is a difference in the attitude of Antarctic Treaty Consultative Parties (ATCPs) to rights generated from territorywithinthe ATA and rights generated fromexternalterritory. Nonetheless, there may be significant implications flowing from the latter for resource issues within the ATA. Minerals exploitation on sub-Antarctic extended continental shelf within the ATA is precluded in the near-term because of cost, the formal prohibition under article 7 of the 1991 Protocol on Environmental Protection to the Antarctic Treaty, and the fact that all sub-Antarctic coastal states are ATCPs. However the situation in regard to other resource activities is less clear. Bioprospecting could proceed subject to coastal state approval pursuant to the provisions of UNCLOS relating to marine scientific research, and there is no mandatory regulation under the ATS. The possibility that a coastal state may seek to realise rights on the ECS in relation to genetic resources may complicate collective ATS approaches and pose wider geopolitical challenges. In the longer term, the fact that some Antarctic states are presently seeking to secure rights that are essentially about ensuring their preclusive access to resources may have significant implications for strategic interests in the greater Antarctic region.