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The Exercise of Jurisdiction in the Antarctic Region and the Changing Structure of International Law: The International Community and Common Interests*

Published online by Cambridge University Press:  07 July 2009

R. Lefeber
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Since the entry into force of the Antarctic Treaty in 1961, the Antarctic Treaty Consultative Parties have adopted numerous regulations in order to protect and preserve the fragile environment of Antarctica. The enactment of legislation on environmental and other issues is the prerogative of a limited group of Contracting Parties, the Consultative Parties. They negotiate and adopt recommendations as well as new conventions related to the Antarctic Treaty. The entire body of rules is referred to as the Antarctic Treaty System.

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Articles
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Netherlands Yearbook of International Law , Volume 21 , December 1990 , pp. 81 - 137
Copyright
Copyright © T.M.C. Asser Press 1990

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References

1. 402 UNTS 72 (no. 5778); the treaty was opened for signature on 1 December 1959 and entered into force on 23 June 1961. A collection of interstate and national documents has been compiled by Bush, W.M., Antarctica and International Law, Vols. I + II (1982)Google Scholar and Vols. III + IV (1988). Suggestions for further reading: Joyner, C.C. and Chopra, S.K., eds., The Antarctic Legal Regime (1988)Google Scholar; Francioni, F. and Scovazzi, T., eds., International Law for Antarctica – Droit international de l'Antarctique (1987)Google Scholar; Triggs, G., ‘The Antarctic Legal Regime: A Workable Compromise or a “Purgatory of Ambiguity”?’, 17 Case Western Reserve JIL (1985) pp. 195–228Google Scholar; Wolfram, R., ‘Antarktis’, in Die Internationalisierung Staatsfreier Räume (1984) pp. 31–100.Google Scholar

2. According to Art. IX(1), the Consultative Parties are competent to adopt unanimous recommendations in support of the principles and objectives of the Antarctic Treaty. Recommendations become binding (‘effective’) for the Consultative Parties upon approval by all the governments; see Art. IX(4). Thus, each Consultative Party has a double veto in respect of the mandatory force of recommendations.

3. The 1972 Convention for the Conservation of Antarctic Seals (C-CAS), reprinted in 11 ILM (1972) p. 251. The treaty was adopted on 11 February 1972, opened for signature on 1 June 1972 and entered into force on 11 March 1978.

The 1980 Convention on the Conservation of Antarctic Marine Living Resources (C-CAMLR), reprinted in 19 ILM (1980) p. 841. The treaty was adopted on 20 May 1980, opened for signature on 11 September 1980 and entered into froce on 7 April 1982.

The 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (C-RAMRA), reprinted in 27 ILM (1988) p. 868. The treaty was adopted on 2 June 1988 and opened for signature on 25 November 1988. The treaty has not (yet) entered into force.

4. Art. IX(2) Antarctic Treaty (AT).

5. The procedure is laid down in the 1977 Final Report of the First Special Antarctic Treaty Consultative Meeting, reprinted in Bush, Vol. I, op. cit. n. 1, at p. 33.

6. Due to the vagueness of the term substantial scientific research, it cannot be assessed in an objective manner whether the research programme by the Netherlands did satisfy the condition laid down in the Antarctic Treaty. In fact, the research programme by the Netherlands neither provided for the establishment of a permanent base on Antarctica nor for an independent expedition to the Antarctic. Up to last year, expeditions were organized in cooperation with Third States. It was only after the denial of consultative status that the Netherlands decided to organize an independent expedition. See NRC Handelsblad (10 March 1990).

7. Ibid.

8. At the end of 1989, thirty-nine States were party to the Antarctic Treaty. Twenty-five States have consultative status: Argentina, Australia, Belgium, Brazil, Chile, China, the Federal Republic of Germany, Finland, France, the German Democratic Republic, India, Italy, Japan, New Zealand, Norway, Peru, Poland, South Africa, South Korea, Spain, Sweden, the USSR, the United Kingdom, the United States, Uruguay. The other fourteen Contracting Parties are: Austria, Bulgaria, Canada, Colombia, Cuba, Czechoslovakia, Denmark, Ecuador, Greece, Hungary, the Netherlands, North Korea, Papua New Guinea and Rumania.

9. Arts. I and II, respectively.

10. Arts. V and IX(1)f, respectively.

11. Art. V(1); see also consideration 6 of the preamble. Art. 2(3) C-RAMRA contains a similar provision.

12. Recommendations III-VIII, reprinted in Bush, Vol. I, op. cit. n. 1, p. 146.

13. A critical review of the operation of the C-CAMLR is provided by Howard, M., ‘The Convention of the Conservation of Antarctic Marine Living Resources: A Five-Year Review’, 38 ICLQ (1989) pp. 104–149.CrossRefGoogle Scholar

14. The negotiations are based on Recommendation XI-1, reprinted in 20 ILM (1980) p. 1265.

15. The UN Secretariat has completed two studies on the ‘Question on Antarctica’. See UN Doc. A/39/583, which includes the views of States, and its update UN Doc. A/41/722.

16. See resolutions 38/77 (adopted without a vote), 39/152 (adopted without a vote), 40/156 A (96 in favour; none against; 11 abstentions) and B (92–0-14), 41/88 A (96–0-12) and B (119–0-8), 42/46 B (100–0-10) and 43/83 A (100–0-6). Resolutions 40/156 A/B, 41/88 A/B, 42/46 B, 43/83 A and 44/124 B were adopted after a roll-call vote. A roll-call vote rarely takes place in the General Assembly. The voting procedure enabled the UN Members among the Antarctic Treaty Parties to announce that they would not participate in the vote; the exceptions being Rumania which voted in favour and China which abstained from voting. The Antarctic Treaty Parties did not participate in the vote, because in their opinion there is a ‘lack of consensus in the General Assembly's consideration of Antarctica’. The Antarctic Treaty Parties are convinced that consensus ‘can be based only on resolutions that give full regard to the Antarctic Treaty and the continuing operation of the Treaty System’. See the letter (2 July 1987) of the permanent representative of Australia to the United Nations, acting on behalf of the Antarctic Treaty Parties, reprinted in UN Doc. A/42/687; see further UN Doc. A/44/586.

17. Statement issued on 8 June 1988 by Antigua and Barbuda, Bangladesh, Brunei Darussalam, Cameroon, the Congo, Ghana, Indonesia, Kenya, Malaysia, Nepal, Nigeria, Oman, Pakistan, Rwanda, Sri Lanka, the Sudan, Uganda, Zambia and Zimbabwe, reprinted in UN Doc. A/43/396.

18. Joint Statement on Environmental Issues agreed by Prime Ministers Hawke and Rocard, 18 August 1989. See further NRC Handelsblad (20 June 1989).

19. Ibid.; see further NRC Handelsblad (19 August 1989) as well as 10, 21 and 26 October 1989.

20. This can be deduced from the conjunction of Arts. 29(2) and 62(1) C-RAMRA.

21. Pursuant to Art. 8(9) C-RAMRA, permits for the exploration and development of Antarctic mineral resources can only be applied for after the entry into force of the Liability Protocol. The permissibility of prospecting activities, however, is not subject to the conclusion of the Liability Protocol.

22. See on the increased significance of the environmental factor and its relationship with economic development, the World Commission on Environment and Development, Our Common Future (The Brundtland Report) (1987).Google Scholar

23. The discussion of jurisdictional issues in this article is predominantly concerned with prescriptive jurisdiction. It is recognized that different kinds of jurisdiction should be distinguished and that the exercise of each is limited by specific conditions.

24. Max Huber stressed the principle of the exclusive competence of the State in respect of its own territory in the Island of Palmas arbitration: ‘(t)erritorial sovereignty … involves the exclusive right to display the activities of the State’. The arbitral award is published in 2 UNRIAA 829.

25. Some guidelines in respect of the exercise of jurisdiction causing extraterritorial effects are laid down in the Lotus Judgment, PCIJ, Series A, no. 9, p. 19. The approach followed in this article is meant to leave aside the doctrinal discussion whether the title to exercise jurisdiction causing extraterritorial effects rests with the sovereignty of States or whether a right to exercise such jurisdiction is directly conferred on States by rules of international law.

26. A treaty may contain provisions obliging States to exercise jurisdiction causing extraterritorial effects in a specific way. An example with respect to environmental protection is provided by the 1982 United Nations Convention on the Law of the Sea (CLOS): Arts. 207–212 (prescriptive jurisdiction) and Arts. 213–222 (enforcement jurisdiction). An international agreement may also aim at the transfer of sovereign rights to the institutions of international organizations. The Members of the European Communities (EC) transferred, for example, certain sovereign powers to the EC institutions through ratification of the EC treaties; see Costa/Enel, Case 6/64, ECR (1964) p. 1209. It must, however, not be overlooked that the title to exercise international jurisdiction emanates from the participating sovereign States.

27. Advisory Opinion, ICJ Rep. (1951) p. 15, at p. 23. See further the separate opinion of Judge Morelli and the dissenting opinion of Judge Jessup attached to the South West Africa cases, Second Phase, ICJ Rep. (1966) pp. 59 and 325, at pp. 64 and 373, respectively.

28. This can be derived from the cases concerning the Reservations to Genocide Convention, Advisory Opinion, ICJ Rep. (1951) p. 15, and the Barcelona Traction, Light and Power Company, Limited, Second Phase, ICJ Rep. (1970) p. 3. See further Frowein, J.A., ‘Die Verpflichtungen erga omnes im Völkerrecht und ihre Durchsetzung’, in Bernhardt, R., ed., Völkerrecht als Rechtsordnung – Internationale Gerichtsbarkeit – Menschenrechte, Festschrift für Hermann Mosler (1983) pp. 242–262.Google Scholar

29. See on the link between environmental preservation and common interests in general, Brunnée, J., ‘“Common Interest” – Echoes from an Empty Shell?, Some Thoughts on Common Interest and International Environmental Law’, 49 ZaöRV (1989) p. 791.Google Scholar

30. See infra sections 3.3.1 and 3.3.2.

31. See the case concerning the Barcelona Traction, Light and Power Company, Limited, Second Phase, ICJ Rep. (1970) p. 3, at p. 32 (para. 33).

32. A detailed analysis of the content of and interrelation between these concepts is beyond the scope of this article.

33. Art. 53 1969 Vienna Convention of the Law of Treaties, 1155 UNTS p. 331 (no. 18232).

34. See Art. 19 1980 Draft Articles on State Responsibility, adopted by the ILC on first reading, for the distinction between an international delict and an international crime; the draft has been reprinted in ILC Yearbook 1980 Vol. II Part 2 p. 30. For example, the serious breach of an international obligation of essential importance for the preservation of the environment is considered to be an international crime. The massive pollution of the seas is explicitly mentioned in this connection in Art. 19(2)d.

35. Case concerning Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Rep. (1949) p. 174, at p. 179.

36. Ibid. at p. 177.

37. Ibid. at p. 185. See further on this issue, Mosler, H., ‘The International Society as a Legal Community’, RdC (1974/IV) p. 234.Google Scholar

38. See supra the text at n. 16.

39. It could be maintained that the ultimate basis of any right to exercise jurisdiction is vested in territorial sovereignty. The international community's right to exercise jurisdiction in international areas to protect common interests results from a transfer of sovereign rights. The transfer is required by international law as a consequence of the legal recognition of the general interest in international areas. It is, however, also conceivable that the international community's right to exercise jurisdiction in international areas directly originates in international law. The implications of the opposite positions are not discussed, because it does not have any practical effect on the statements made in the article. See also the remarks in n. 25 supra on extraterritorial jurisdiction.

40. The feasibility of a universal approach has clearly been demonstrated by the negotiations on the CLOS. Parts of the CLOS have become customary international law, even before the entry into force of the treaty. The universal participation in the negotiations is probably accountable for the rapid development of the law of the sea.

41. The 1969 Vienna Convention on the Law of Treaties provides in Art. 35 that treaty obligations can only create legal effects for a Third State through express acceptance in writing. However, in view of Art. 38, the treaty obligation may also become binding upon States through the development of customary international law; see infra section 4.

42. Art. 53 j. 71 of the 1969 Vienna Convention on the Law of Treaties.

43. South West Africa cases. Second Phase, ICJ Rep. (1966) p. 6.

44. Second Phase, ICJ Rep. (1966) p. 6, at p. 47 (para. 88).

45. Dissenting opinion of Judge Jessup in the South West Africa cases, Second Phase, ICJ Rep. (1966) p. 325, at pp. 387–388.

46. Second Phase, ICJ Rep. (1970) p. 3, at p. 32 (para. 33).

47. The case concerning Barcelona Traction, Light and Power Company, Limited, Second Phase, ICJ Rep. (1970) p. 3, at p. 47 (para. 91) and, further, at p. 32 (para. 34) and at p. 47 (paras. 90/91); see also the separate opinion of Judge Gross, attached to the Nuclear Tests cases, Judgment, Australia v. France, ICJ Rep. (1974) p. 276, at p. 290.

48. See the joint dissenting opinion of Judges Onyema, Dillard, Jiménez de Aréchaga and Waldock in the case concerning Nuclear Tests, Judgment, Australia v. France, ICJ Rep. (1974) p. 312, at pp. 369–370 and Frowein, loc. cit. n. 28, at pp. 259–260.

49. van Dijk, P., Judicial Review of Governmental Action and the Requirement of an Interest to Sue, a Comparative Study on the Requirement of an Interest to Sue (1980) p. 474.Google Scholar

50. See the separate opinion of Judge Morelli in the South West Africa cases, Second Phase, ICJ Rep. (1966) p. 59, at pp. 64–65 and Frowein, loc. cit. n. 28 at p. 253. Art. 60(2) sub a of the 1969 Vienna Convention on the Law of Treaties is employed as a legal argument to support this opinion. The article requires the unanimous agreement of the parties to suspend or terminate a multilateral treaty.

51. The joint dissenting opinion in the case concerning Nuclear Tests, Judgment, supra n. 48 at p. 370.

52. The United Kingdom made an attempt to have the dispute settled by the ICJ; see Antarctica cases, 1956 ICJ-pleadings, oral arguments, documents. The application was dismissed, because the Court lacked competence to adjudicate the dispute. Chile and Argentina refused to accept the jurisdiction of the Court; see Antarctica cases, Judgment, ICJ Rep. (1956) p. 12.

In 1978 Argentina and Chile agreed to examine, inter alia, the legal defence of the rights of both countries in the Antarctic Region; see 1978 Minute concerning the Beagle Channel region, reprinted in 17 ILM (1978) p. 793.

53. For purposes of the US Income Tax Regulations Act and the Federal Tort Claims Act, Antarctica has not been treated as a foreign country by US Courts; see respectively, Martin v. Commissioner of Internal Revenues, 50 T.C. 9 (1968), reprinted in 63 AJIL (1969) p. 141, and Beattie v. US, 756 F. 2d. 91 (1984), reprinted in 2 AIL Cas. 2d (1987) pp. 280–331.

54. Art. IV AT; compare with Art. I C-CAS, IV C-CAMLR and 9 C-RAMRA, all incorporating the essence of Art. IV AT.

Art. IV AT reads:

‘1. Nothing contained in the present Treaty shall be interpreted as:

(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

(b) a renunciation of 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;

(c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.

2. 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.’

55. Art. IV(2), second sentence AT.

56. Art. IX(1)e AT.

57. Art. X AT. The C-CAMLR and the C-RAMRA contain identical provisions (Arts. XXII, respectively 7(5)). See further, Brunner, S., ‘Article 10 of the Antarctic Treaty Revisited’Google Scholar, in Francioni and Scovazzi, op. cit. n. 1, pp. 27–51.

58. Art. 7(1) C-RAMRA.

59. Arts. XXI and XXII C-CAMLR.

60. Arts. 11 C-CAS, respectively 1(1) C-CAMLR.

61. Art. 2(1) C-CAS explicitly, respectively Arts. XXI and X C-CAMLR implicitly.

62. Art. VIII(1) AT prescribes the exclusive applicability of the nationality principle with regard to certain defined categories of persons, viz., observers and scientific personnel; this provision is ‘without prejudice to the respective positions of the Contracting Parties relating to the jurisdiction over all other persons in Antarctica’. An identical provision has been incorporated in Art. 7(9) C-RAMRA.

63. Art. VIII(2) AT; Art. 7(3) C-RAMRA.

64. See Brownlie, I., Principles of Public International Law (1990) p. 266.Google Scholar

65. Art. XII(2)a AT.

66. Arts. 1(1) C-CAS, IV C-CAMLR and 9 C-RAMRA.

67. In the case concerning the Western Sahara, Advisory Opinion, the ICJ emphasized that derivative roots of title, such as cession and succession, have to be distinguished from original titles, such as occupation of terrae nullius; see the Advisory Opinion, ICJ Rep. (1975) p. 12, at pp. 38–39 (paras. 79–80).

68. See Conforti, B., ‘Territorial Claims in Antarctica: A Modern Way to Deal with an Old Problem’, 19 Cornell ILJ (1986) p. 249Google Scholar. Conforti discusses the sector principle, the theory of propinquity and the uti possidetis principle as bases for claims to territorial sovereignty. They are rejected because of (a) the absence of effective occupation, and (b) the international opposition to the claims. The applicability of the decolonization principle, the common heritage principle and the social requirement function is subsequently elaborated.

69. 2 UNRIAA p. 829.

70. The Permanent Court of International Justice applied the principle in the case concerning the Legal Status of Eastern Greenland, PCIJ, Series A/B, no. 53 at pp. 45/46. See also the Affaire de l'île de Clipperton, 2 UNRIAA p. 1105 at pp. 1109/1110.

71. Legal status of Eastern Greenland, PCIJ, Series A/B, no. 53, at p. 46.

72. 2 UNRIAA p. 1105 at p. 1110.

73. These factors are derived from the Anglo Norwegian Fisheries case, Judgment, ICJ Rep. (1951) p. 116, at p. 139.

74. François, J.P.A., Handboek van het Volkenrecht (1949) p. 116Google Scholar; Verdross, A. and Simma, B., Universelles Völkerrecht – theorie und praxis (1982) p. 742Google Scholar (para. 1144) j. 744 (para. 1147); McDougal, M.S. and Reisman, W.M., International Law in Contemporary Perspective – the Public Order of World Community (1981) p. 614Google Scholar; Triggs, G.D., ‘The Antarctic Treaty System: Some Jurisdictional Problems’, in Triggs, G.D., ed., The Antarctic Treaty Regime: Law, Environment and Resources (1987) p. 88, at p. 103Google Scholar; Klein, E., Statusverträge im Völkerrecht – Rechtsfragen territorialer Sonderregime (1980) p. 116Google Scholar; compare further with Brownlie, op. cit. n. 64.

75. In general, a claim is upheld by international law, if a title is accompanied by effective occupation and if there is no persistent objection to the claim; see supra section 3.1.

76. Art. IX(1)f AT.

77. Our Common Future, op. cit. n. 22, p. 261.

78. Art. 89 (high seas) and Art. 137(1) (the ‘Area’) CLOS; the ‘Area’ is defined in Art. 1(1)1 CLOS as the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. The 1982 UN Convention on the Law of the Sea can be found in 21 ILM (1982) p. 1261. The treaty was opened for signature on 10 December 1982, but has not yet entered into force. See also Art. 2 Geneva Convention on the High Seas 1958, 450 UNTS 11 (no. 6465).

Art. II Outer Space Treaty is applicable to outer space, including the moon and other celestial bodies. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies is reprinted in 6 ILM (1967) p. 386. The treaty was opened for signature on 27 January 1967 and entered into force on 10 October 1967. See further A/RES(XVIII)/1962 of 1963, para. 1, which was adopted unanimously. Art. 11(2) Moon Treaty is applicable to the moon and other celestial bodies. The 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies is reprinted in 18 ILM (1979) p. 1434. The treaty was opened for signature on 12 November 1979 and entered into force on 11 July 1984.

79. Parts VII (high seas) and XII (the ‘Area’) of the CLOS, the Outer Space Treaty and the Moon Treaty.

80. Arts. 88 (high seas) and 141 (the ‘Area’) CLOS, Art. IV (with respect to the moon and other celestial bodies) Outer Space Treaty and Art. 3(1) Moon Treaty. Compare with Art. I AT.

81. Arts. 116–120 (high seas), Art. 145 (the ‘Area’) and part XII (protection and preservation of the marine environment) CLOS, Art. IX Outer Space Treaty and Art. 7 Moon Treaty.

82. Freedom of access: Arts. 87(1) (high seas) and 141 (the ‘Area’) CLOS and Art. I Outer Space Treaty.

Freedom of scientific investigation: Art. 87(1)f (high seas), Art. 141 (the ‘Area’) and part XIII (marine scientific research) CLOS, Art. I Outer Space Treaty and Art. 6 Moon Treaty. Compare with Art. II AT.

See Art. 87(1) CLOS on uses other than the use of natural resources located in res communes. The use of natural resources located in res communes will be discussed in section 3.3.2.

83. See the resolutions of the General Assembly, referred to in n. 16 supra, on the rights and interests of the international community with regard to Antarctica. See the statement, referred to in n. 17 supra, in which it is contended that the ‘Question on Antarctica’ is a ‘matter of vital interest to the international community and to the well-being of mankind’ and, further, the various resolutions of intergovernmental organizations, such as the Non-Aligned Movement, the Organization of African Unity (OAU), the League of Arab States, the Organization of the Islamic Conference, and of non-governmental organizations, such as the International Union for Conservation of Nature and Natural Resources (IUCN) and the Antarctic Southern Ocean Coalition (ASOC).

84. The following phrases provide convincing evidence:

‘[i]n exercising their responsibility for the wise use and protection of the Antarctic environment … [the Consultative Parties] shall act in accordance with their responsibility for ensuring that … measures are consistent with the interests of mankind’ (Recommendation VIII-13, reprinted in Bush, op. cit. n. 1;

‘it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes’ (consideration 1, preamble AT.; see also considerations 9, preamble C-CAMLR and 3, preamble C-RAMRA);

‘the effective regulation of Antarctic mineral resource activities is in the interest of the international community as a whole’ (consideration 13, preamble C-RAMRA);

‘the Parties acknowledge the need to take into account the interests of the international community as a whole’ (Art. 2(3)g C-RAMRA; see further para. 5(d) Recommendation XI-1, reprinted in 20 ILM (1980) p. 1265);

the Antarctic Mineral Resources Commission shall ‘keep under review the conduct of Antarctic mineral resource activities with a view of safeguarding the protection of the Antarctic environment in the interest of all mankind’ (Art. 21(1)x C-RAMRA).

85. Howard, loc. cit. n. 13, at pp. 148–149.

86. NRC Handelsblad, 1, 2, 4 and 7 February, and 18 March 1989.

87. Para. 4 A/RES(44)/124 B which was adopted with 101 votes in favour, 0 against with 8 abstaining; see, however, supra n. 16 with respect to the attitude of a number of States, the Antarctic Treaty Contracting Parties in particular, to the discussion of Antarctic issues in the General Assembly.

88. Foreword by Judge Nagendra Singh in Environmental Protection and Sustainable Development — Legal Principles and Recommendations Adopted by the ‘Experts Group on Environmental Law of the World Commission on Environment and Development’ (June 1986), R.D. Munro (chairman), J.G. Lammers (rapporteur) (1987) at p. XX.

89. These principles are derived from Munro and Lammers, op. cit. n. 88, Arts. 1–8.

90. Principle 24, UN Doc. A/CONF 48/14 at 2, reprinted in 11 ILM (1972) p. 1416. See further Munro and Lammers, op. cit. n. 88, Art. 8; see the commentary for references, pp. 69–72.

91. Ibid. Art. 2; commentary and references, pp. 42–45.

92. Ibid. Art. 3; commentary and references, pp. 45–58.

93. Ibid. Arts. 4, 5 and 6; commentary and references, pp. 58–65.

94. See infra section 3.3.2.

95. See further, Pineschi, L., ‘The Antarctic Treaty System and General Rules of International Environmental Law’Google Scholar, in Francioni and Scovazzi, op. cit. n. 1, pp. 187–246. The article analyzes the general obligation to prevent and abate environmental interferences causing significant harm in connection with thereto related duties, such as the obligation to exchange information and to enter into consultations.

96. See Arts. 194(2) CLOS, IX Outer Space Treaty and 7 Moon Treaty. Note that these treaties do not explicitly mention the occurrence of a significant amount of harm as a criterion for the violation of the obligation in respect of international areas.

97. See supra section 2.3.

98. For example, an United States official has recognized that the Antarctic environment has been polluted by activities at American research bases; see Rousseau, C., ‘Chronique des Faits Internationaux’, 93 RGDIP (1989) p. 107.Google Scholar

99. NRC Handelsblad, 9 January 1989. See further Greenpeace, , The Future of the Antarctic — Background for a Second UN Debate (1984) pp. 10–12.Google Scholar

100. Compare with Art. 194(5) CLOS on rare and fragile ecosystems.

101. See Munro and Lammers, op. cit. n. 88, Art. 9; commentary and references, pp. 72–75.

102. See, on the conservation and management of the living resources of the high seas, Art. 87(1) j. Arts. 116–120 CLOS; see further the case concerning the Fisheries Jurisdiction, Merits, Judgment, ICJ Rep. (1974) p. 3, at pp. 34–35. Compare with the C-CAMLR and the C-CAS.

103. Art. I Outer Space Treaty. Compare with consideration 12, Preamble C-RAMRA where it is provided that ‘participation in Antarctic mineral resource activities should be open to all States which have an interest in such activities and subscribe to a regime governing them’.

104. Arts. 87(2) (high seas) and 137(2) (the ‘Area’) CLOS, Art. I Outer Space Treaty and Art. 2 Moon Treaty. According to Art. 6 C-RAMRA and consideration 12 of its Preamble, the special situation of developing countries participating in the C-RAMRA should be taken into account.

105. Art. 11(5) Moon Treaty, respectively part XI CLOS. The international regime to be established pursuant to the Moon Treaty has not yet been elaborated.

106. Art. 11(7)d Moon Treaty and Art. 140(1) CLOS.

107. Arts. 136 CLOS and 11(1) Moon Treaty. See also A/RES(XXV)/2749 of 1970, para. 1 (108–0-14), with respect to the legal status of the deep seabed.

108. The historical background of the different interpretations has been described by Wolfrum, R., ‘The Principle of the Common Heritage of Mankind’, 43 ZaöRV (1983) p. 312.Google Scholar

109. Art. 140(3) CLOS.

110. US State Practice, 74 AJIL (1980) p. 426.

111. See also Judge Nagendra Singh, loc cit. n. 88 at pp. XIX-XX.

112. Para. 8 of Recommendation IX-I, reprinted in Bush, op. cit. n. 1, Vol. I at p. 345, imposes a (voluntary) moratorium on the exploration and exploitation activities until the timely adoption of a minerals convention by the Consultative Parties. The Consultative Parties have agreed to maintain the moratorium pending the timely entry into force of the C-RAMRA; see the 1988 Final Act of the Fourth Special Antarctic Treaty Consultative Meeting on Antarctic Mineral Resources, reprinted in 27 ILM (1988) p. 865. The General Assembly has urged the members of the international community to support all efforts to ban mineral resource activities in the Antarctic region; see para. 5 of A/RES(44)/124 B.

113. NRC Handelsblad, 20 June 1989, 19 August 1989, 21 October 1989 and 27 February 1990. Since the ratification of sixteen Consultative Parties, including the seven Claimant States, the Soviet Union and the United States, is a prerequisite for the entry into force of the C-RAMRA, the Minerals Convention cannot come into effect without the participation of Australia, France and New Zealand; see Art. 29(2) j. Art. 62(1) C-RAMRA. No provision has been made for the provisional application of the convention.

The desire to establish an international nature reserve in the Antarctic region was also expressed by the General Assembly in para. 6 of A/RES(44)/124 B.

114. See further on this issue, Francioni, F., ‘Antarctica and the Common Heritage of Mankind’Google Scholar, in Francioni and Scovazzi, op. cit. n. 1, pp. 102–136.

115. See Consideration 5, Preamble Resolution 25/5-P(IS) of the 1987 Fifth Islamic Summit Conference in Kuwait, reprinted in UN Doc. A/42/178 and S/18753, which refers to ‘the need to guarantee the principle[s] of … “Common Heritage of Mankind” … in Antarctica’. Furthermore, some States have explicitly contended that Antarctica should be the common heritage of mankind. These States include Algeria, Bangladesh, Cape Verde, Kenya, Libya, Malaysia, Nepal, Pakistan, the Sudan, and Thailand; see UN Doc. A/41/722 at 35 and note 27 at 39.

The Movement of Non-Aligned Countries includes Claimant States and other Consultative and Contracting Parties. The designation of the Antarctic region as res communis humanitatis is prejudicial to the interests of a number of these States. The non-aligned countries could therefore only agree that ‘any exploitation of the resources of Antarctica … should be for the benefit of mankind’; see the documents on the 1986 Eighth Conference of Heads of State or Government of Non-Aligned Countries, Harare, chap. XXII, paras. 198–202, reprinted in UN Doc. A/41/697 and S/18392.

116. Merits, Judgment, ICJ Rep. (1986) p. 14, at pp. 99–100 (para. 188).

117. Ibid. para. 191.

118. See Charney, J.I., ‘Customary International Law in the Nicaragua Case Judgment on the Merits’, 1 Hague Yearbook of International Law (1988) p. 22.Google Scholar

119. See supra text at n. 16.

120. Our Common Future, op. cit. n. 22, at p. 261. The United States, the United Kingdom and West Germany refused to sign the CLOS for this reason; see NRC Handelsblad, 28 November 1984 and, further, the statement made by the President of the United States, reprinted in 22 ILM (1983) p. 464. These States concluded several agreements with other developed countries to regulate the use of the natural resources of the deep seabed. See, for example, the 1982 Agreement concerning Interim Arrangements relating to Polymetallic Nodules of the Deep Seabed, reprinted in 21 ILM (1982) p. 950, and the 1984 Provisional Understanding regarding Deep Seabed Matters, reprinted in 23 ILM (1984) p. 1354.

121. The Moon Treaty entered into force on 11 July 1984.

122. At the end of 1989, seven States had become parties to the Moon Treaty.

123. Antarctica cannot be regarded as a (de facto) condominium of the Consultative Parties. The condominium concept implies the attribution of sovereignty to the Consultative Parties. However, several Consultative Parties reject the possibility of presenting any claim to territorial sovereignty.

124. Simma, B., ‘The Antarctic Treaty as a Treaty Providing for an “Objective Regime”’, 19 Cornell ILJ (1986) p. 189Google Scholar, describes three approaches potentially endorsing the objective validity of the Antarctic Treaty System: (a) the law of the treaties approach, (b) the public law approach and (c) the subsequent practice approach. All three approaches are rejected as sustaining the validity erga omnes of the Antarctic Treaty System.

125. The 1969 Vienna Convention on the Law of Treaties contains other exceptions to the pacta tertiis rule in Arts. 35 and 36 (treaties providing for obligations, respectively rights, for Third States). In view of their preconditions, these articles cannot be employed to legitimate the jurisdic-tional competence of the Consultative Parties. The application of these articles in the Antarctic legal context is discussed by Birnie, P., ‘The Antarctic Regime and Third States’, in Wolfrum, R., ed., Antarctic Challenge II, Conflicting Interests, Cooperation, Environmental Protection, Economic Development (1985) p. 240.Google Scholar

126. Statement made by Waldock during the 739th meeting of the ILC, ILC Yearbook 1964 Vol. I para. 69 at p. 105. He mentions the Antarctic Treaty as an example in this context. However, customary international law may also develop rapidly as is shown, for example, by the incorporation of the concept of the exclusive economic zone in the international legal order.

127. See, e.g., the debate in the ILC on objective regimes in the framework of its deliberation on the law of treaties, ILC Yearbook 1964 Vol. I pp. 96–109 and, in particular, the statements made by Verdross (para. 50 at p. 99), Luna (para. 6 at p. 99), Tsuruoka (para. 14 at p. 100) and Waldock (para. 69 at p. 105). See further, Waldock, Third Report on the Law of Treaties, UN Doc. A/CN.4/167 and Add. 1–3, ILC Yearbook 1964 Vol. II para. 11 at p. 30 in particular.

128. Waldock, loc. cit. n. 126, para. 69 at p. 105.

129. Waldock, op. cit. n. 127, paras. 1 at p. 26 and 18 at pp. 32–33. Otherwise, for example, Mosler, who expands the application of the doctrine to international areas, op. cit. n. 37 at p. 236.

130. Ibid. paras. 18–19 at pp. 32–33.

131. See, e.g., Elias and Jiménez de Aréchaga, ILC Yearbook 1964 Vol. I para. 38 at p. 97, respectively para. 20 at p, 101.

132. Cases concerning the North Sea Continental Shelf, Judgment, ICJ Rep. (1969) p. 3, at p. 27 (para. 33).

133. If the Antarctic Treaty System has any validity erga omnes, States would still have the right to exercise jurisdiction in respect of subject matters which are not within its scope. Disputes, similar to those analyzed in section 3.1 could arise.

134. These criteria are derived from Mosler, op. cit. n. 37, p. 236; see also Waldock, op. cit. n. 127.

135. Simma, op. cit. n. 124; see further Charney, J.I., ‘The Antarctic System and Customary International Law’Google Scholar, in Francioni and Scovazzi, op. cit. n. 1, pp. 35–99 at p. 63.

136. Otherwise, Waldock, op. cit. n. 127, para. 11 at p. 30 and loc. cit. n. 126, para. 69 at p. 105.

137. For example, the temporary freeze of the claims (Art. IV AT) and the possibility to withdraw from the Antarctic Treaty and the related conventions (Arts. XII-XIII AT, XIV C-CAS, XXXI C-CAMLR and 65 C-RAMRA) do not support the thesis that the Antarctic Treaty System constitutes an objective regime. Art. X AT (see supra section 3.1) has, not only been interpreted to deny the third party effect of the Antarctic Treaty, but also to support it. See Brunner, loc cit. n. 57, p. 28.

138. Statement made by Tunkin during the 740th meeting of the ILC, ILC Yearbook 1964 Vol. 1 para. 15 at p. 107.

139. Waldock, op. cit. n. 127, para. 23 at p. 33 and Art. 63 at p. 26.

140. See n. 2 supra.

141. Art. 12 C-CAS. At the end of 1989, eleven States had become parties to the Seals Convention.

142. Art. XXIX C-CAMLR. At the end of 1989, 23 States had become parties to the Marine Living Resources Convention.

143. Arts. III and V(2) C-CAMLR.

144. Art. 61(2) C-RAMRA.

145. Arts. 2(1/2) and 10 C-RAMRA (consistency with the other components of the Antarctic Treaty System).

146. Otherwise, Waldock, op. cit. n. 127, para. 22 at p. 34. According to Waldock's draft article, express or implied consent is only one of the modes by which Third States can be considered to have accepted an objective regime. In addition, Third States are considered to have impliedly accepted an objective regime if they do not protest or otherwise manifest their opposition to an objective regime within a period of x years of the registration of the treaty with the Secretary-General of the United Nations. Waldock suggested a period of five years, but wished to postpone a decision in order to obtain the views of States. Several members of the ILC in particular opposed the possibility that States could be considered to have impliedly accepted an objective regime and this part of the draft article became one of the main reasons for its deletion; see, eg., Jiménez de Aréchaga and Paredes, ILC Yearbook 1964 Vol. I para. 21 at p. 101, and para. 41 at p. 102.

147. Judgment, ICJ Rep. (1969) p. 3, at p. 26 (para. 30).

148. See Charney, loc. cit. n. 135, at pp. 67–74 and 83–93.

149. Otherwise, Birnie, loc. cit. n. 125, at p. 260; Birnie concludes that the impeachment of the Antarctic legal framework by Third States is rather based on economic, social and political grounds than on legal argumentation.

150. See, e.g., the remarks of Pal and Tunkin during the 739th meeting of the ILC, ILC Yearbook 1964 Vol. I para. 36 at p. 102, and para. 45 at p. 103, respectively.

151. See supra section 2.3.

152. Arts. IV(2) C-CAMLR and 9(b) C-RAMRA.

153. See the cases concerning the North Sea Continental Shelf, Judgment, ICJ Rep. (1969) p. 3, at pp. 23 (para. 19), 29 (para. 39) and 52 (para. 96); the Beagle Channel Arbitration, reprinted in 17 ILM (1978) p. 634, at p. 644. See further Scovazzi, T., ‘Les Zones Cotières dans l'Antarctique’Google Scholar, in Francioni and Scovazzi, op. cit. n. 1, pp. 291–339 at pp. 291–292.

154. Art. 77(3) CLOS and Art. 2(3) 1958 Geneva Convention on the Continental Shelf, 499 UNTS 311 (no. 7302), provide that the rights over the continental shelf do not depend on any express declaration.

155. National documents in respect of claims over adjacent sea-areas can be found in Bush, op. cit. n. 1. The maritime claims of the Claimant States are analyzed by Scovazzi, loc. cit. n. 153, pp. 297–302.

156. See Art. IV(2) AT and supra section 3.1.

157. Since a consensus could not be reached, the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, 516 UNTS 205 (no. 7477), fails to establish the maximum breadth of the territorial sea. The dispute between the three and twelve mile advocates has been settled in favour of the latter in Art. 3 CLOS.

158. Art. VI AT.

159. An analysis of these issues is beyond the scope of this article. See on these issues, Oxman, B.H., ‘Antarctica and the New Law of the Sea’, 19 Cornell ILJ (1986) pp. 211–247Google Scholar. National documents can be found in Bush, op. cit. n. 1.

160. See Art. 76(1) in respect of the continental shelf and Art. 55 in respect of the exclusive economic zone.

161. In the cases concerning the North Sea Continental Shelf, Judgment, ICJ Rep. (1969) p. 3, the ICJ applied the principle that the land dominates the sea; see para. 96 at p. 52.

162. See Arts. 156–185 CLOS on the ISA.

163. Art. 1(1)1 CLOS.

164. It is clear that the term ‘limits’ refers to the permissible maximum limits of the continental shelf; see also Oxman, loc cit. n. 159 at p. 229 (note 89).

165. Pursuant to Art. 145 CLOS, the ISA has to take measures in order to protect the marine environment; see also Art. 209.

166. See also consideration 5, Preamble Recommendation XI-I, reprinted in 20 ILM (1980) p. 1265.

167. Oxman, loc. cit. n. 159 at p. 229 (note 89).

168. Ibid. at p. 230 (note 89). See also Triggs, loc. cit. n. 1, at p. 222.

169. See the South West Africa cases, Second Phase, ICJ Rep. (1966) p. 3, para. 91 at p. 48.

170. Art. VI AT.

171. Art. 5(2) C-RAMRA.

172. Art. 5(3) C-RAMRA. Para. 7(IV) of Recommendation XI-I, i.e., the mandate for the negotiations, provides that the regime should apply to ‘the Antarctic Continent and its adjacent offshore areas but without encroachment on the deep seabed’; Recommendation XII is reprinted in 20 ILM (1980) p. 1265.

173. See the 1988 Final Act of Fourth Special Antarctic Treaty Consultative Meeting on Antarctic Mineral Resources, reprinted in 27 ILM (1988) p. 866.

174. The 200 mile limit is established in Art. 76(1) CLOS. See UN Doc A/39/583 (Part I), pp. 11 (para. 7) and 96 (para. 404) on the geographical configuration of the Antarctic continental shelf.

175. Art. 76(6) CLOS.

176. Art. 76(8) j. Annex II CLOS.

177. Art. 4 Annex II CLOS.

178. Pursuant to Art. 34(2) C-RAMRA, cooperation is envisaged with the United Nations, its specialized agencies and ‘any international organisation which may have competence in respect of mineral resources in areas adjacent to those covered by this Convention’.

179. See the Final Act, referred to in n. 173 supra at p. 866.

180. Multilateral Treaties deposited with the Secretary-General, Status as at 31 December 1989, UN Doc ST/LEG/SER.E/8 at pp. 735/36.

181. Art. 18 of the 1969 Vienna Convention on the Law of Treaties. Argentina, Australia, Chile, New Zealand and Uruguay are parties to the Vienna Convention. See on the position of the Consultative Parties with respect to the 1958 Geneva Convention on the Continental Shelf, the CLOS and the Vienna Convention, Barnes, J.N. and Lipperman, P.J., ‘The UN. Convention on the Law of the Sea and Antarctica’Google Scholar, in Francioni and Scovazzi, op. cit. n. 1, p. 368 at pp. 371–373.

182. Art. 311(6) CLOS; see also the other obligations described in Art. 311, paras. 2–4 CLOS (relation to other conventions and international agreements). The Group of 77 has alleged that the CLOS defines the international deep seabed regime as jus cogens; see the statement of Chile upon the signature of the CLOS in Multilateral Treaties deposited with the Secretary-General, Status as at 31 December 1989, UN Doc ST/LEG/SER.E/8 at p. 783.

183. Art. 310 CLOS (declarations or statements); reservations and exceptions are prohibited according to Art. 309 CLOS.

184. Arts. 1(1) C-CAS and 1(1) C-CAMLR. The Marine Living Resources Convention is not only applicable to the marine living resources in the Antarctic Treaty area, but also to the marine living resources between the Antarctic Treaty area and the Antarctic convergence. The Antarctic convergence is a circumpolar zone where cold and low-saline water moving north from the coast of Antarctica is pushed beneath warmer high-saline northern water moving south; see diagram and UN Doc. A/39/583 (part I) at p. 10.

185. 1980 Final Act of the Conference on the Conservation of Antarctic Marine Living Resources, reprinted in 19 ILM (1980) pp. 838–839. The legal implications of the statement are supported by Art. IV(2)b C-CAMLR.

186. Art. XI C-CAMLR.

187. Art. 56 CLOS enumerates the issues in respect of which States are entitled to exercise jurisdiction in the exclusive economic zone.

188. Art. IX C-CAMLR. See further Howard, loc cit. n. 13.

189. Our Common Future, op. cit. n. 22, at p. 282.

190. Ibid. p. 285.

191. See further on the efforts of the Consultative Parties in this respect, Auburn, T.M., ‘Aspects of the Antarctic Treaty System’, 26 AV (1988) p. 203 at pp. 209–212.Google Scholar