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Antarctica: the last great land rush on earth

Published online by Cambridge University Press:  22 May 2009

M. J. Peterson
M. J. Peterson
Affiliation:
Assistant Professor of Government and an Associate of the Center for International Affairs at Harvard University.
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Sometime between now and 1991, the international community will have to consider creating a new legal regime for Antarctica. Until recently, the “cold continent” and its legal regime were the concerns of a few scientists, fishermen, and legal specialists. Now, with new information on the extent of Antarctic resources, concern that present supplies of raw materials, fuels, and food are limited, and improvement of cold weather extraction technology, a broader group of policymakers, entrepreneurs, scientists, and environ-mentalists are paying attention to Antarctica. Experts now believe that exploratory drilling for offshore oil and natural gas is only a decade away. Though commercial extraction is farther in the future, and commercial exploitation of land-based minerals is unlikely in the next thirty years, speculation about Antarctica's natural wealth has aroused wide interest. There remain formidible obstacles to all these activities, but recent work in the oceans suggests that these plans might materialize earlier than now expected, and that a legal regime capable of dealing with resource activities should be in place before they begin.

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Articles
Information
International Organization , Volume 34 , Issue 3 , Summer 1980 , pp. 377 - 403
Copyright
Copyright © The IO Foundation 1980

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References

The author wishes to thank Henry J. Steiner, William K. Muir, Jr., Amy Bridges, Robert O. Keohane, and the anonymous reviewers for comments on earlier drafts of this paper.

1 See page 391 for the significance of 1991.

2 Dugger, J., “Exploiting Antarctica's Mineral Resources,” University of Miami Law Review, 33 (12 1978): 319Google Scholar.

3 Guyer, R., “The Antarctic System,” Hague Academy of International Law Recueil des cours, 1973 2:610, note 112Google Scholar.

4 U.S. Practice in International Law, 1975 (Washington, D.C., 1977), pp. 107–8Google Scholar contains a reaffirmation of the U.S. view. The Soviet note of 2 May 1958 accepting an invitation to the conference that negotiated the Antarctic Treaty, which is printed in M. Whiteman, Digest of International Law, 2: 1255 gives the similar Soviet view.

5 Entered into force on 23 June 1961. Text in United Nations Treaty Series 402: 71–85 and United States Treaties 12: 795–99.

6 New Zealand's representatives said that their government would relinquish its claim if all other claimants did likewise. See Beeby, C., The Antarctic Treaty (Wellington, N.Z., 1972), pp. 8–10Google Scholar. The British may also have been willing to participate in a general renunciation of claims. Bulter, S., “Owning Antarctica,” International Affairs 31 (1977): 44Google Scholar.

7 Report of the 10th Antarctic Treaty Consultative Meeting (preliminary version, Washington, 1979), para. 19.

8 For a fuller description of their activity, see Hanevold, T., “The Antarctic Treaty Consultative Meetings,” Cooperation and Conflict 6 (1971): 183–99CrossRefGoogle Scholar.

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10 This discussion ignores such energy sources as wind, sun, and hot springs as being far from exploitation and not contributing to current political controversies.

11 United States Department of State, Final Environmental Impact Statement for a Possible Regime of Conservation of Antarctic Living Marine Resources (Washington, 06 1978), pp. 25–35Google Scholar. (Hereafter cited as FinalE.I.S.).

12 Sayed, S. El and McWhinnie, M., “Antarctic Krill,” Oceanus 22 (Spring 1979): 13 and 17Google Scholar.

13 Shapley, D., “Antarctic Problems: Tiny Krill to Usher in New Resource Era,” Science 196 (1977): 503CrossRefGoogle ScholarPubMed. Processing estimate in Sayed, El and McWhinnie, , “Krill,” p. 14Google Scholar.

14 For a description of the various human and animal food products developed, see Wasserman, U., “The Antarctic Treaty and Natural Resources,” Journal of World Trade Law, 12 (1978): 178Google Scholar.

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16 Final E.I.S., p. 35. Only Poland and Japan reported catches to the FAO in 1976, hence its figure of 575 metric tons in Yearbook of Fisheries Statistics, 42:198 and 201.

17 Evensen, I., The Living Resources of the Southern Ocean (Rome: FAO, 1977)Google Scholar, para. 8.7. Only in 1972 were the Kerguelen Islands and Southern Georgia, “sub-Antarctic” islands which are two of the richest fishing grounds for Antarctic species, included in the FAO's Antarctic statistical areas. Further, only two species of Antarctic fish, Southern Poutaussou (Micromesistius australis) and Patagonian Hake (Merluccius hubbsi) are reported separately, the rest being lumped together in a general category.

18 Evensen, Living Resources, para. 8.7,

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21 United States. Department of the Interior Geological Survey. Circular No. 548, “Mineral Resources: Prospects and Problems” (1974), p. 2Google Scholar; and Circular No. 705, “Mineral Resources of Antarctica” (1974) p. 2.

22 See the Report of the Group of Experts on Mineral Exploration and Exploitation to the 9th Antarctic Treaty Consultative Meeting, Doc. No. ANT/IX/51 (Rev. 1) of 29 September 1977 for a discussion of why Antarctic resources are now subeconomic.

23 Wasserman, , “The Antarctic Treaty,” p. 177Google Scholar.

24 Ibid.

25 U.S. Geological Survey, circular 705, p. 15.

26 Some American geologists have called it “a mountain of iron.” (Wasserman, , “The Antarctic Treaty,” p. 177.Google Scholar)

27 U.S. Geological Survey, No. 705, p. 10.

28 U.S. Geological Survey, No. 705, pp. 3, 10–11, and 17.

29 U.S. Geological Survey, No. 705, p. 15.

30 United States Senate Committee on Foreign Relations, Hearings: United States Antarctic Policy (1975) p. 33Google Scholar. (Hereafter cited as U.S. Antarctic Policy.)

31 Dugger, , “Exploiting Antarctica's Resources,” p. 319Google Scholar.

32 This estimate was based on current experience that one-third of “in place” oil is recoverable. U.S. Antarctic Policy, pp. 33–34.

33 The State Department replied that there were no procedures for granting such licenses. U.S. Antarctic Policy, p. 18. Mitchell, B. and Kimball, L., “Conflict over the Cold Continent,” Foreign Policy (Summer 1979): 130Google Scholar, say the Australian, New Zealand, and United States governments have been approached by companies interested in Antarctic prospecting.

34 United States Government report to the 1976 Paris Special Preparatory Meeting of the Consultative Parties.

35 U.S. Geological Survey, No. 705, p. 12.

36 Lundquist, T., “The Iceberg Cometh?” Natural Resources Journal, 17 (1977): 3Google Scholar. Total annual calving is estimated at 1200 trillion kilograms of ice, 100 from the Ross Ice Shelf, 120 from the Ronne Ice Shelf, and 980 from the rest of Antarctica.

37 Wasserman, , “The Antarctic Treaty,” p. 178Google Scholar.

38 For fuller descriptions of the Antarctic climate, see United States Central Intelligence Agency, Polar Regions Atlas (1978)Google Scholar.

39 Dugger, , “Exploiting Antarctica's Resources,” p. 318Google Scholar.

40 Ibid., p. 325.

41 Potter, N., “The Antarctic: Any Economic Future?” in Frozen Future, Lewis, R. and Smith, P., eds. (New York, 1973), p. 294Google Scholar.

42 Tractor-trains consist of several cargo sleds hitched together and pulled by a treaded diesel vehicle. Vehicles with standard tires can be used for local transportation in a few areas during the summer.

43 Potter, , “The Antarctic,” p. 296Google Scholar. He estimates three to five times the domestic U.S. cost.

44 Dugger, , “Exploiting Antarctica's Resources,” p. 328Google Scholar.

45 Carter, R., “Alaska: Mining's Chilly Future in the Land of the Midnight Sun,” Mining Engineering (11 1976): 20Google Scholar.

46 New York Times, 1 April 1979, p. 24, col. 1.

47 Ibid.

48 Dugger, , “Exploiting Antarctica's Resources,” p. 337Google Scholar.

49 Scully, R., “The Marine Resources of the Southern Ocean,” University of Miami Law Review, 33 (12 1978): 336 and n. 60Google Scholar.

50 Wasserman, , “The Antarctic Treaty,” p. 177Google Scholar argues that such concern lies behind Soviet objections to early commencement of even exploratory drilling in the continental margin.

51 Antarctic, 8 (09 1978): 237–38Google Scholar.

52 Final E.I.S. pp. 1–3; Wilson, G., “Antarctica, the Southern Ocean, and the Law of the Sea,” JAG Journal, 30 (1978): 48Google Scholar.

53 Mitchell, and Kimball, , “Conflict,” pp. 136–37Google Scholar.

54 Report of the 10th Antarctic Treaty Consultative Meeting, para. 9, and proposed Recommendation X-l, para. 2.

55 Recommendation IX-5, “Declaration on the Protection of the Antarctic Environment,” (text in Polar Record, 19 (1978): 87)Google Scholar. Most commentators believe it will not survive a major resource find that is immediately exploitable.

56 Of course this should be specified in any new treaty. In any case, the law of treaties would support a presumption of termination under such circumstances. See Article 59 of the Vienna Convention of the Law of Treaties (text in American Journal of International Law, 63 [1969]: 985–903Google Scholar), which reaffirms the customary rule.

57 Vienna Convention on the Law of Treaties, Articles 54 and 56.

58 Antarctic Treaty, Article XII (1).

59 Antarctic Treaty, Article XII (2), which allows such a conference thirty years after the treaty enters into force.

60 A single Consultative Party formally cannot veto a proposal but can veto its adoption, which means the same thing as a formal veto over proposals. The unusual feature is participation by par-ties without Consultative status.

61 Official Chilean maps of the Antarctic show Australian, French, New Zealand, and Norwegian “territories” and Argentinian and British “claims” (pretensiones). Chile does recognize Argentina's right to an Antarctic territory though. Pinochet, O., Chilean Sovereignty in Antarctica (Santiago, 1955), pp. 32 and 55–57Google Scholar. A 1938 exchange of notes on Antarctic aviation among the Australian, British, French, and New Zealand governments included a mutual recognition of claims. Norway recognized those claims and had its claim recognized in 1939. Castles, A., “The International Status of the Australian Antarctic Territory” in International Law in Australia, O'Connell, D., ed. (Adelaide, 1965), p. 357Google Scholar.

62 See Pinochet, , “Chilean Sovereignty,” pp. 9–27Google Scholar for a typical exposition of this position.

63 The precedents generally cited are the Isle of Palmas Arbitration (Netherlands v. United States), 1928, U.N. Reports of International Arbitral Awards, 2:829; the Clipperton Island Arbitration (France v. Mexico), 1931Google Scholar, U.N. Reports of International Arbitral Awards, 2:1105; and Legal Status of Eastern Greenland (Denmark v. Norway), Permanent Court of International Justice, 1933Google Scholar. P.C.I.J. Reports, Ser. A/B, No. 53.

64 Official Argentine maps label some bases “scientific station” (estación cientifica) and others “army base” (base de ejercito) or “naval outpost” (destacamento naval) despite the Antarctic Treaty prohibition of military bases. See, e.g., the maps in Argentina, Ministry of Economy, Coordination and Planning Secretariat, Information on Argentina, 12 1978, p. 42Google Scholar.I am indebted to Jorge I. Dominguez for this reference. Argentina does have specific rivals to consider, but is concerned with general challenges to all claims as well.

65 Antarctic 8 (03 1978): 169–70Google Scholar.

66 Most lawyers now accept the rule that ice shelves and sheet ice (all ice lying permanently atop land—even if the land is below sea level) will be treated as “land” while the seasonally varying pack ice floating on water and icebergs or ice floes will be treated as “water” for legal purposes. See Bernhart, J., “Sovereignty in Antarctica,” California Western International Law Journal, 5 (1975): 300–10Google Scholar; and Alexander, F. Jr, “A Recommended Approach to the Antarctic Resource Problem,” University of Miami Law Review, 33 (12 1978): 383–85Google Scholar.

67 U.N. Doc. No. A/CONF. 62 (WP.10) Rev. 1,28 April 1979.

68 This definition of national jurisdiction rejects the “sector theory” under which states claimed the wedge-shaped areas shown in Figure 1. This theory allows enclosing large tracts of land and water as national territory even if “effective occupation” consists of a few acts in widely scattered areas or only on the edge of the area. The sector theory originated in the Arctic as a means of ex-tending adjacent state jurisdiction to parts of the Arctic ice cap. (The Arctic ice all floats on water.) This theory was never generally accepted in the Arctic or Antarctic, and has been explicitly rejected in the Arctic. See Bernhart, , “Sovereignty,” pp. 324–47Google Scholar; Costa, J. da, Souverainété sur I'Antarctique (Paris, 1958), 18–19Google Scholar; Auburn, F., The Ross Dependency (Wellington, 1972), pp. 24–27CrossRefGoogle Scholar; and Alexander, , “Recommended Approach,” pp. 387–93Google Scholar.

69 They might be treated as “ocean resources” and put under International Seabed Authority management, or as “fish” (because they are renewable) and regulated by a “fishing convention.”

70 RICNT, Article 63.

71 Ibid.

72 RICNT, Article 116–120.

73 RICNT, Article 82 provides that all states, not developing countries which are net importers of the particular resources exploited, shall contribute money or contributions in kind to the Inter-national Seabed Authority for sharing among all states members under its revenue-sharing formula. Contributions start at one percent of the value or volume of production at the site during the sixth year of production and rise by another one percent a year until equalling seven percent in the twelfth and subsequent years.

74 von Glahn, G., Law Among Nations, 3rd ed. (New York, 1976), pp. 78–79Google Scholar.

75 Foreign Relations of the United States, 1948, 1 (1976):962 ffGoogle Scholar.

76 This was reaffirmed at UNCLOS III, where no one challenged the right of the New Hebrides to a territorial area, contiguous zone, EEZ, and continental margin. Interview with Louis B. Sobn, Harvard Law School, March 1979.

77 The Spitzbergen Treaty vests sovereignty in Norway while granting other parties rights regarding resource activities.

78 Wilson, , “Antarctica,” pp. 76–81Google Scholar, describes this argument at length.

79 Chile advanced a 200 mile maritime jurisdiction zone claim for both its home territory and Antarctic claim in 1947 as it began championing the concept internationally. Chile formally made such a claim in 1970; Australian and New Zealand legislation authorizes the making of an EEZ claim at any time. Cruz, F. Zenger Santa, “El System Antártica y la Utilizaciòn des los Recursos” (English translation by R. Benetez and M. de la Portilla). University of Miami Law Review, 33 (12 1978):459–60Google Scholar.

80 E. g., [Honnold, E.], “Thaw in International Law?” Yale Law Journal, 87 (1978): 829Google Scholar, note 91; or Jain, S., “Antarctica: Geopolitics and International Law,” Indian Yearbook of International Affairs 17 (1974):249Google Scholar.

81 A view that has taken comfort from the International Court of Justice's is distinction between “islets and rocks capable of physical appropriation” and others (above water only at low tide) not appropriable, in the Minuiers and Ecrehos Case (Britain vs. France, 1953)Google Scholar.

82 Honnold, “Thaw,” argues this strongly.

83 U.S. Antarctic Policy, p. 5. Names were deleted but the text implies that not all claimants raised objections.

84 Even negotiations on the marine resources convention almost broke down over this issue in the July 1978 Buenos Aires session. Antarctic 8 (09 1978): 237Google Scholar.

85 E.g. Bilder, R., “Control of Criminal Conduct in Antarctica,” Virginia Law Review, 52 (1966):231, n. 1CrossRefGoogle Scholar.

86 Pallone, F., “Resource Exploitation: The Threat to the Legal Regime of Antarctica,” Connecticut Law Review 10 (1978):44Google Scholar says New Zealand officials want such preferences.

87 The U.S. wants a resource regime based on “nondiscriminatory guaranteed access,” see U.S. Antarctic Policy, p. 6. The Soviets have heavy investments in Antarctic fishing and want to preserve access to it.

88 See the testimony of various individuals and group representatives in U.S. Antarctic Policy and FinalE.I.S.

89 See the discussions in Proceedings of the American Society of International Law, 1979; and U.S. Antarctic Policy.

90 See, e.g., Nye, J., “Ocean Rule Making from a World Politics Perspective,” Ocean Development and International Law Journal, 3 (1975): 43–50CrossRefGoogle Scholar; and Miles, E., “The Structure and Effects of the Decision Process in the Seabed Committee and the Third UN Conference on the Law of the Sea,” International Organization 31 (1977): 159–234Google Scholar.

91 Texts in Polar Record, 19 (1978): 86–90Google Scholar.

92 Report of the 10th Antarctic Treaty Consultative Meeting, proposed Recommendations X-l and X-2.

93 India has advocated internationalization for many years. An article titled “Antarctica's Key Assets” in Newsweek, 3 October 1977, p. 95, identifies Algeria, Guinea, Libya as interested. Mitchell and Kimball, p. 132, identify Sri Lanka, Guinea, and “Several Arab states” as interested. For the personal views of a Sri Lankan ambassador see Pinto, M., “The International Community and Antarctica,” University of Miami Law Review 33 (12 1978): 475–88Google Scholar.

94 Wilson, , “Anarctica,” p. 61Google Scholar. They did extend information-sharing under Recommendation VIII-13 to the UNEP. Kimball and Mitchell, , “Conflict,” p. 133Google Scholar, say this included securing substitution of a Southern Fisheries Survey Program for a much more ambitious fisheries development program.

95 Most states that begin serious activities in the Antarctic accede to the treaty at some point, either because they ask and the Consultative Parties agree or because the Consultative Parties en-courage the accession. South Korea plans to accede, and West Germany has applied for Consultative Party status (Antarctic 8 [06 1978]: 189)Google Scholar.