Anthony Aust. Handbook of International Law

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life. If at the time the US Government knew, or had good grounds for believing that it knew, the real

intentions of the hijackers of the four US airliners on 11 September 2001, it could have authorised

their shooting-down over less populated areas. During the negotiation of Article 3bis, certain Central

American states had argued that they should be entitled to shoot down civil aircraft suspected of

drug trafficking. This was rejected. Yet, on 20 April 2001, as part of an anti-drug-smuggling

campaign assisted by the US Government, Peru shot down a light aircraft, killing two. It was found

to be carrying only Christian missionaries.

In October 2004, Brazil announced that a domestic law

had now come into effect to enable it to shoot down suspected drug trafficking aircraft.

Although in force, the Protocol containing Article 3 bis has only 128 parties. Nevertheless, the

preamble states that it ‘reaffirm[s] the principle of non-use of weapons against civilian aircraft in

flight’.

30. See The Times, 21 April 2001, and www.cnn.com/2001/US/04/22/peru.plane.03/.

31. See http://americas.org/item_15285/.

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18 Special regimes

The Pole . . . Great God! This is an awful place.

Parts of our globe (the polar regions), particularly important resources (international waterways), and

outer space have required special treatment to preserve their unique features, to deal with their

unusual characteristics or to protect the interests of states generally. Such special areas are often

declared to be demilitarised. In some cases, a regime created by a treaty between only certain states

is regarded as an ‘objective regime’, created not just for the benefit of those states, but also for the

benefit of all (erga omnes).

Antarctica

Watts, International Law and the Antarctic Treaty System, Cambridge, 1992

Birnie and Boyle, Basic Documents on International Law and the Environment, Oxford, 1995 (B&B

Docs.)

www.ats.org.ar

Antarctica has been primarily a theatre for exploration and science; from the beginning expeditions

to explore the continent included scientists. Over the years, many bases have been established in

Antarctica for the purpose of conducting research, both the better to understand the continent itself

and, more recently, to monitor changes in the global environment. The Antarctic continent is vast

and empty. The Antarctic Treaty 1959 (in this section, ‘the Treaty’)

applies to an even larger area:

all land,

1. Captain Scott, Diary, 1 January 1912.

2. See p. 10 above, and Aust, pp. 208–11.

3. 402 UNTS 71 (No. 5778); UKTS (1961) 97. The official website of the Antarctic Treaty Secretariat is

www.ats.org.ar. Another useful site is that of the Australian Antarctic Division, www.antdiv.gov.au, which

includes the Antarctic Treaty Handbook.

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ice shelves

and water south of latitude 60° south. That is even larger than the area within the

Antarctic Circle, an imaginary line drawn at latitude 66° 33' South (latitude 60° North runs through

the Shetland Islands, Scotland’s most northerly islands). There is no permanent population in the

Antarctic Treaty area.

The legal status of Antarctica is unique. Seven states claim sovereignty over parts of it (Argentina,

Australia, Chile, France, New Zealand, Norway and the United Kingdom). The claims are for sectors

(often termed ‘pie slices’), consisting of areas bounded by lines of longitude converging at the South

Pole, although Norway has not clearly made a claim going as far as the Pole. Russia and the United

States have not made claims but each asserts that it has a ‘basis of claim’. There is also a large sector

(90° to 150° West) that is unclaimed.

However, most states, including other parties to the Treaty,

do not accept the existence of any territorial sovereignty in Antarctica. Although sovereignty

questions have been put on ice (see below), the problems of jurisdiction they raise are only partially

resolved by the Treaty. For example, the Treaty provides for the parties to designate observers to

carry out inspections in Antarctica to ensure observance of the Treaty, the observers remaining under

the jurisdiction of the party of which they are nationals.

The Antarctic Treaty System (ATS)

The governance of Antarctica is provided, albeit imperfectly, by a system of treaties – the Antarctic

Treaty and its Environmental Protocol 1991,

the Convention on the Conservation of Antarctic

Marine Living Resources 1980 (CCAMLR),

the Convention for the Conservation of Antarctic

Seals 1972,

and measures adopted under them. Although there have been attempts in the UN

General Assembly to make Antarctica a UN responsibility, these have not come to anything. There

are powerful arguments that the ATS is an objective regime.

4. For a pictorial description, see Watts, International Law and the Antarctic Treaty System, Cambridge,

1992, p. 116.

5. For a map showing this and the claims, see Watts, International Law and the Antarctic Treaty System,

Cambridge, 1992, p. 117.

6. ILM (1991) 1460; UKTS (1999) 6; ATS (1998) 6; B&B Docs. 468.

7. 402 UNTS 71 (No. 22301); ILM (1980) 837; UKTS (1982) 48; TIAS 10240; B&B Docs. 628.

8. 1080 UNTS 175 (No. 16529); ILM (1972) 837; UKTS (1978) 45.

9. Watts, International Law and the Antarctic Treaty System, Cambridge, 1992, pp. 295–8.

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The Antarctic Treaty

The preamble to the Treaty recognises the need for Antarctica to be used exclusively for peaceful

purposes and not to become the scene or object of international discord. Accordingly, the Treaty

provides for Antarctica’s demilitarisation and prohibits any nuclear explosions or the disposal of

nuclear waste. The Treaty acknowledges Antarctica’s substantial contribution to scientific

knowledge resulting from international cooperation in scientific investigation, and provides for

freedom of scientific investigation in Antarctica and for cooperation to that end, including the

exchange of scientific personnel in Antarctica.

Sovereignty clause

Article of the Treaty is worth quoting in full, not only for its importance to the operation of the

Treaty, but because it has proved a useful precedent for other difficult situations.

Nothing contained in the present Treaty shall be interpreted as:

a renunciation by any contracting party of previously asserted rights of or claims to territorial

sovereignty in Antarctica;

a renunciation or diminution by any contracting party of any basis of claim to territorial

sovereignty in Antarctica which it may have whether as a result of its activities or those of its

nationals in Antarctica, or otherwise;

prejudicing the position of any contracting party as regards its recognition or non-recognition

of any other state’s rights of or claim or basis of claim to territorial sovereignty in Antarctica.

No acts or activities taking place while the present Treaty is in force shall constitute a basis for

asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights

of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial

sovereignty in Antarctica shall be asserted while the present Treaty is in force.

Article thus preserves the differing legal positions of the parties.

Measures

The provisions of the Treaty are contained in eight quite short Articles. Because of their brevity and

generality, there was a need for the

10. See, for example, the Argentina–United Kingdom Joint Declarations 1989 and 1996 (ILM (1990) 129

and (1996) ILM 304) regarding co-operation over the Falkland Islands since the 1982 conflict.

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Treaty to include a dynamic element. Accordingly, Article provides for two classes of parties: (1)

the twenty-nine Antarctic Treaty Consultative Parties (ATCPs), being the twelve original parties and

those which later acceded and established, to the satisfaction of the then ATCPs, that they conduct

substantial scientific research activity in Antarctica; and (2) the rest (currently sixteen), who have

acceded only and are effectively observers. The ATCPs are so described because Article (1)

provides that they shall meet from time to time for the purpose of, among other things, consulting

together and recommending to their governments measures in furtherance of the principles and

objectives of the Treaty. They now meet annually at an Antarctic Treaty Consultative Meeting

(ATCM) hosted each year by a different ATCP. Between 1961 and 1995, ATCMs recommended to

the governments of the ATCPs 209 measures on a variety of subjects, including the exchange of

scientific personnel and data, the protection of fauna and flora and historic sites, specially protected

areas, air safety, telecommunications, tourism, minerals exploration and the disposal of nuclear

waste. Article (4) provides that measures adopted at an ATCM become ‘effective’ when they have

been approved by all the ATCPs, which then regard them as legally binding.

However, there had been a long-standing misunderstanding, and consequent misapplication, of

Article (1). From the very beginning, all texts adopted by ATCMs were mistakenly called

‘Recommendations’ and subjected to the unanimous approval procedure of Article (4). Yet a great

number of the Recommendations were merely exhortations to do or not to do something, with no

intention of creating any legal obligations. Many others were ephemeral or of a procedural nature,

for example requests to other bodies. This resulted in many Recommendations not becoming

‘effective’ until many years after their adoption, if at all, even though they created no obligations,

had been overtaken by events, or were ephemeral. This unsatisfactory situation was corrected at the

1995 ATCM which agreed, in Decision 1 (1995),

to adopt three basic categories of instrument for

embodying decisions taken by an ATCM: (1) a Measure adopted expressly under Article (1), if it

is intended to be legally binding; (2) a Decision, if it concerns only internal organisational matters;

and (3) a Resolution, if the text is no more than recommendatory. Decisions and Resolutions are

therefore not adopted under a specific provision of the Treaty.

11. ILM (1996) 1165.

The Environmental Protocol

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In 1991, the ATCPs adopted the Protocol on Environmental Protection to the Antarctic Treaty (the

‘Protocol’).

Since the entry into force of the Protocol in 1998, a party to the Treaty cannot become

an ATCP unless it first becomes a party to the Protocol (Article 22(4)). The purpose of the Protocol

is to create a comprehensive regime for the protection of the Antarctic environment. It established a

new body, the Committee for Environmental Protection (CEP) (see below). Although Article 3 sets

out general principles governing the protection of the Antarctic environment, the key provisions are:

Prohibition on mining for minerals, except for scientific research (Article 7). Article 25(2) and

(5) provides that the prohibition shall continue for at least fifty years, unless before then a

binding legal regime on mining is in force. A Convention on the Regulation of Antarctic

Mineral Resource Activities (CRAMRA) had been concluded in 1988.

Opposition to it by

Australia and France on environmental or national interest grounds meant that it would not be

able to enter into force.

Environmental impact assessment (EIA)

of proposed activities in Antarctica. This is

elaborated in Annex to the Protocol. In addition to preliminary and initial EIAs, a

comprehensive EIA must be prepared for any activity which is likely to have ‘more than a

minor or transitory’ impact on the environment. This has to be publicised and later discussed

by the CEP. However, the decision whether to proceed with the activity rests with the ATCP

concerned.

The scheme of Annexes to the Protocol. In addition to Annex on EIA, there are currently

three others: Annex on the Conservation of Antarctic Fauna and Flora; Annex on Waste

Control and Management; Annex on the Prevention of Marine Pollution; and Annex on

Area Protection and Management. Additional Annexes may be adopted by a Measure. An

Annex to deal with legal liability for damage arising from environmental emergencies was

eventually adopted in 2005. Amendments to an Annex can also be made by a Measure, but an

Annex may provide for amendments to it to become effective on an accelerated basis; and each

of the Annexes provides that an amending Measure

12. See n. 6 above.

13. ILM (1988) 859. The text is also annexed to Watts, International Law and the Antarctic Treaty

System, Cambridge, 1992, which has a detailed analysis of that Convention.

14. See p. 332 above.

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shall be deemed to have been approved, and shall become effective, one year after the ATCM

at which it was adopted, unless an ATCP requires an extension of the period or says that it

does not approve the Measure.

The CEP. Its sole function is to advise the ATCM on the implementation of the Protocol and to

formulate draft Measures for consideration by the ATCM. Each party to the Protocol is a

member. It adopts its report to the ATCM by consensus.

A quite complex procedure for the settlement of disputes, with a choice between the

International Court of Justice or arbitration according to the Schedule to the Protocol.

Amendment of the Treaty and the Protocol and its Annexes

Article (1) of the Treaty provides that it may be modified or amended by the unanimous agreement

of the ATCPs, the instrument entering into force when all the ATCPs have ratified. This is not the

simple amendment mechanism found in many later treaties: a further treaty is required, and there is

no provision that it should enter into force for all ATCPs once a certain number of them have

ratified it.

In short, the procedure is cumbersome and has not been used except for the

Environmental Protocol. In practice, extensive use of Article measures has allowed the ATCPs to

develop the Treaty without amending it.

Secretariat

The 2001 ATCM agreed that, instead of the host state of each ATCM providing a temporary

secretariat, the Treaty should have a permanent secretariat located in Buenos Aires, Argentina.

Measure 1 (2003) provides for the Secretariat to be an organ of the ATCM. Under a headquarters

agreement with Argentina, the Secretariat will have, although only in Argentina, legal capacity,

and the Secretariat and its staff the usual privileges and immunities.

Because it will be some years

before the Measure (and the headquarters agreement, which is dependent on the Measure) will enter

into force, it will be applied provisionally, and contributions of the ATCPs to the budget of the

Secretariat will be voluntary. The Secretariat began work in September 2004.

15. See p. 98 above on amendment problems.

16. This is exceptional. Normally, it would be the organisation (a new Antarctic Treaty Organization or

even the ATCM) on which capacity would be conferred: see p. 198 above.

17. See p. 199 above.