Major issues and complexities arise when one is 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 Antarctica 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 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, and some early attempts had been made to check this. The Antarctic Treaty was adopted in 1959 and entered into force in1961, and it consists of fifty-three parties with different statuses and voting power—twenty-nine 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 claims, 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 United Nations Convention on the Law of the Sea (“UNCLOS”) of 1982, but by various separate treaties which were somewhat vague.5 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 made up, the ATS.
A key question analyzed in this Article is whether states’ territorial claims give rise to claims to Antarctica’s waters. If so, to what extent, 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 a 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, to whom is Antarctica open, 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 today’s changing environment.
Repository CitationLinda A. Malone, The Waters of Antarctica: Do They Belong to Some States, No States, Or All States?, 43 Wm. & Mary Envtl. L. & Pol'y Rev. 53 (2018), https://scholarship.law.wm.edu/wmelpr/vol43/iss1/3
43 William & Mary Environmental Law and Policy Review 53-81 (2018)