The Waters of Antarctica: Do They Belong to Some States, No States, or All States?

William & Mary Environmental Law and Policy Review, Vol. 43, 2018

William & Mary Law School Research Paper No. 09-379

28 Pages Posted: 18 Jul 2018

Date Written: July 3, 2018

Abstract

Major issues and complexities arise when looking at the international puzzle that is Antarctica. Despite being uninhabited year-round and lacking substantial long-term international law rules for sovereignty, states still try to claim their sovereignty over various parts of Antarctica. The consortium of states under the Antarctic Treaty System (ATS) then further aggravates these complexities, especially when other states outside of the ATS have been arguing for different regimes and approaches to dealing with Antarctica and resource exploitation. Due to these major issues and a desperate need for a resolution in times of global climate change this article delves into certain crucial topics including the status of the waters off Antarctica, the overall pertinence of the Law of the Sea Treaty, and the best approach to the upcoming negotiations for a treaty on sustainable use of marine biological diversity in areas outside of national jurisdiction. This article is not meant to provide the absolute answer to this puzzle, but will, however, analyze the various treaties, conventions and ideas and try to posit some ways of looking at the puzzle.

The article starts by discussing the ATS and its goal of trying to preserve Antarctica. When it comes to the Antarctic waters, history shows that when unregulated, the waters have faced extensive exploitation of their resources-some early attempts had been made to check this. The Antarctic Treaty was adopted in 1959 and entered into force in 1961, and consists of 53 parties with different statuses and voting power-29 states have full power to participate in decision-making. As the article clearly points out and explains, the Treaty does not alter or affect any of the previous claims of territorial sovereignty and does not allow for new, or the expansion of, those claims while in force. Additionally, when the Treaty was adopted in 1959, the law of the sea was not yet being governed by the present UN Convention on the Law of the Sea (UNCLOS) of 1982, but by various separate treaties-which were somewhat vague. The article goes into detail and discusses how the Antarctic Treaty of 1959 provided the framework for subsequent treaties and protocols, which significantly added more substance to, and make up, the ATS.

A key question analyzed in this article is to what extent, if so, do the states’ territorial claims give rise to claims to Antarctica’s waters and how exactly are some of these claims based. Some disputes and tension have arisen between ATS and other states in regards to this. Is there some form of joint sovereignty or condominium? To be further outlined, the landmark UNCLOS brought to the global community a concrete and comprehensive outline for the law of the sea and delineation of coastal zones/boundaries-has largely evolved into customary international law. Yet, the article looks at and poses one important question, do these boundaries under UNCLOS apply to Antarctica? If so, sovereignty claims must be addressed and many different potential outcomes arise. However, who is Antarctica open to and is it even available for territorial claims? Who governs Antarctica? The article explores these questions by looking at claims from ATS and non-ATS parties. There has yet to be a comprehensive solution to the question of Antarctica but this article raises significant valid points in attempting to address this key global situation that is becoming increasingly important with the changing environment as it is today.

Keywords: Antarctica, Antarctic Treaty System, United Nations Convention on the Law of the Sea, Consultative Parties, World Park, customary international law, international law, state sovereignty, exploitation, claimant states, non-claimant states, regime

JEL Classification: William and Mary Environmental Law and Policy Review Journal

Suggested Citation

Malone, Linda A., The Waters of Antarctica: Do They Belong to Some States, No States, or All States? (July 3, 2018). William & Mary Environmental Law and Policy Review, Vol. 43, 2018. Available at SSRN: https://ssrn.com/abstract=3211525

Linda A. Malone (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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