Saving the Antarctic: the (im)possibility of using legal instruments to
prevent companies from drilling in light of environmental protection.
Essay by Laura Lundahl – JUCN21 spring period 2016
Index
Saving the Antarctic: the (im)possibility of using legal instruments to prevent companies from
drilling in light of environmental protection.
1
I Introduction
3
II The Polar Regions: legal regime
ANTARCTICA
The Antarctic Treaty
Madrid Protocol on Environmental Protection
CCAMLR
UNCLOS
THE ARCTIC
3
3
4
8
12
13
15
III Risks of drilling
16
IV Possibilities of prevention
BY NGOs
BY STATES
17
17
17
V Conclusion
18
VI Bibliography
20
2
I Introduction
Drilling and mining on Antarctica, is it possible? What happens when there is a leak, what
risks are involved? But more importantly, is there a way, a legal way, of preventing
companies from searching for oil on Antarctica?
I will research these questions, with special focus on the legal regimes that control
Antarctica and explore in which way they protect the environment of this icy continent.
More specifically, I will first go deeper into the specific laws governing Antarctica as a kind of
national level of legal instruments, to afterwards turn to the more general international level
of UNCLOS, the treaty that governs the common laws of the seas.
Later, I will elaborate just a little on the legal regime concerning the Arctic, namely to point
out the differences with Antarctica.
And finally I will consider the risks of drilling, after which we shall research whether there
are ways to prevent this by NGOs and/or states.
II The Polar Regions: legal regime
ANTARCTICA
The Antarctic region is governed by the Antarctic Treaty System (ATS).
The ATS is an overarching network that manages and controls the activities occurring on this
icy continent1. It includes both different treaties concerning Antarctica and its environment
and a number of specific resolutions adopted by the governing body put in place by the
Antarctic Treaty2. This body consists of all the consulting parties of the Antarctic Treaty,
1
Dastidar, Prahir G. And Persson, O., Mapping the Global Structure of Antarctic Research visà-vis Antarctic Treaty System, Current Science, 2005, p.1552.
2 Dupuy, P.-M., Viñuales, J.E., International Environmental Law, Cambridge University Press,
2015, p. 114.
3
currently 293, that have devoted and demonstrated their commitment to substantial and
extensive Antarctic scientific research; and therefor have a vote within the regulation and
management of the Antarctic region.4
Respectively I will research more in depth the Antarctic Treaty, the Madrid Protocol,
CCAMLR and UNCLOS to get a clear image of the current mechanisms provided for by the
ATS on one hand and by international treaty law, being UNCLOS, on the other that protect
the Antarctic environment.
The Antarctic Treaty
Even though the Antarctic region is of very little value concerning human and animal
inhabitation, several countries have tried to make territorial claims on it during the 20 th
century5. The reason thereof is the richness of mineral resources of this area6.
These territorial claims are made by seven states spread across the globe, complimented by
the United States and Russia in the coarse of the second World War and the Cold War,
during which both these states, prior not making any claims concerning Antarctic territory,
showed increased interest. The seven claimants are Chile, France, United Kingdom, NewZealand, Australia, Argentina and Norway7.
3
Information retrieved from: http://www.ats.aq/devAS/ats_parties.aspx?lang=e , last visited
on 17-05-2016.
4 Scott, K., Institutional Developments within the Antarctic Treaty System, International and
Comparative Law Quarterly, 2003, Vol 52, Issue 2, p.475.
5 Grob, J., Antarctica’s Frozen Territorial Claims: A Meltdown Proposal, Boston College
International and Comparative Law Review, 2007, Vol. 30, Issue 2 (Spring 2007), p. 462.
6 Sahurie, E.J., The International Law of Antarctica, New Haven Press, 1992, p.433.
7 Grob, J., Antarctica’s Frozen Territorial Claims: A Meltdown Proposal, Boston College
International and Comparative Law Review, 2007, Vol. 30, Issue 2 (Spring 2007), p. 462.
4
8
This short summary of the history of this treaty is relevant because in order to exploit the
resources found in Antarctica, these resources first have to be ‘appropriated’ by a particular
state and thereby resign under that states sovereignty9.
To dismantle a race towards territorial sovereignty and protection of the area, the Antarctic
Treaty was established in 1959 and went into force in 196110. Originally there were twelve
consulting parties (the seven original claimants, The United States, former Soviet Union,
Belgium, Japan and South Africa)11 and today there are fifty-three parties to the Antarctic
Treaty of which 29 have consulting votes12.
The most important article in this treaty is the one that “freezes” all of these territorial
claims, namely Article IV of the Antarctic Treaty, which states that no new claims can be
made nor can states be forced to relinquish their own or be forced to acknowledge those of
other states13. Other main principles embodied in this treaty are the ‘use for peaceful
8
Image retrieved from: http://discoveringantarctica.org.uk/how-is-antarcticagoverned/geopolitics/geopolitics-of-antarctica/ , last visited on 17-05-2016.
9 Dupuy, P.-M., Viñuales, J.E., International Environmental Law, Cambridge University Press,
2015, p. 114.
10 Grob, J., Antarctica’s Frozen Territorial Claims: A Meltdown Proposal, Boston College
International and Comparative Law Review, 2007, Vol. 30, Issue 2 (Spring 2007), p. 462.
11 Information retrieved from: http://discoveringantarctica.org.uk/how-is-antarcticagoverned/geopolitics/geopolitics-of-antarctica/ , last visited on 17-05-2016.
12 Information retrieved from: http://www.ats.aq/e/ats.htm , last visited on 17-05-2016.
13 Suter, K., International law and the last wilderness, Australian International Law Journal,
1998, p.15.
5
purposes only’ principle14, pronouncing Antarctica as a demilitarised zone15, no nuclear tests
or waste dumping16 and the principle of scientific research as a basic objective of any activity
on Antarctica17.
There are different strengths of the Antarctic Treaty, but also weaknesses. I will only
elaborate further on the weaknesses relevant for this research, these being on the one hand
the omission of a regulation concerning living and non-living resources and on the other the
lack of reference to the protection of the Antarctic environment18. This first problem was
solved by the later on negotiation of several treaties which I will discuss later: Agreed
measures on the Conservation of Antarctica Fauna and Flora (which was designated no
longer current in 2011)19, Convention for the Conservation of Antarctic Seals and the
Convention on the Conservation of Antarctic Marine Living Resources (“CCAMLR”).
The latter omission of regulation, the one concerning the environment of Antarctica, was
specifically of interest in 1988 when the consultative parties started working on “CRAMRA”,
Convention for the Regulation of Antarctic Mineral Resource Activities. There was an
incredible amount of pushback from environmental NGOs trying to stop this convention
from being established, because they were convinced there should be no drilling or mining
whatsoever on Antarctica; and regulating these activities would inherently also allow them
in some circumstances. One of their main arguments was the pollution an oil leak, because
of drilling/mining, would cause. Because of the cold temperatures the bio-degrading of this
oil in the Antarctic environment would take a lot longer then somewhere in a warmer
climate.20 Because of this environmental activism the convention never went into force but
was replaced by a ban on all mining and drilling on Antarctica, by the 1991 Protocol on
Environmental Protection to the Antarctic Treaty. I will elaborate further later on.
14
Art. I, Antarctic Treaty, Dec. 1, 1959.
Art. I, Antarctic Treaty, Dec. 1, 1959.
16 Art. V, Antarctic Treaty, Dec. 1, 1959.
17 Art. II and III, Antarctic Treaty, Dec. 1, 1959.
18 Suter, K., International law and the last wilderness, Australian International Law Journal,
1998, p.21-22.
19 "Decision 1 (2011) - ATCM XXXIV - CEP XIV, Buenos Aires", Antarctic Treaty Secretariat,
1/7/2011, found online at:
http://www.ats.aq/devAS/info_measures_listitem.aspx?lang=e&id=491 , last visited on 1905-2016.
20 Suter, K., International law and the last wilderness, Australian International Law Journal,
1998, p.23-24.
15
6
Even though CRAMRA is not in effect today, it is legally not dead. You can compare it with an
active Convention being technically in the process of ratification, in a legal limbo sort of
speak. Its relevance may have been overcome by the ban on all mining and drilling in the
Madrid Protocol and states may now and in the foreseeable future not be inclined to ratify
this treaty.21 However, there is a possibility that when necessary states will ratify this
convention, because it remains open for ratification to parties of the Antarctic Treaty and
there has not been set an expiration date on the possibility to enter into force by ratification
in the convention itself22.
Even though the Antarctic Treaty is a cornerstone in the legal aspect of the protection of
Antarctica, it does not explicitly protect the environment as such. Article I (peaceful use
only) provides indirectly for an environmental protection, but the scope thereof is narrow.
Because non-peaceful activity such as military action might not have any impact on the
environment whereas other peaceful activities, like tourism, might have a big negative effect
on the Antarctic environment23.
There is thus no specific protection of the environment as such in the Antarctic Treaty, let
alone a protection against drilling and mining in specific. It is probably the case that the
contracting parties assumed further specific measures under Article IX (1)(f) which states
that parties may adopt measures for the protection of ‘living resources’. This formulation
seems problematic in the way that it only covers the living resources and not the
environment as a whole, but nevertheless this article provides, be it indirectly, a basis to
protect the environment. Because how can you protect the living resources of Antarctica
without inherently protecting the environment they live in?24
To conclude, we can say the Antarctic Treaty is inadmissible for Antarctica, but provides us
only with indirect links to protect the environment against drilling and mining.
21
Stokke, O.S. and Vidas, D., Governing the Antarctic: the effectiveness and legitimacy of the
Antarctic Treaty System, Cambridge University Press, 1996, p.171-172.
22 Art. 61 CRAMRA, retrieved online at:
http://www.state.gov/documents/organization/15282.pdf , p.425, last visited on 23-052016.
23 Blay, S.K.N., New Trends in the Protection of the Antarctic Environment: The 1991 Madrid
Protocol, The American Journal of International Law, 1992, Vol.86, p.379.
24 Blay, S.K.N., New Trends in the Protection of the Antarctic Environment: The 1991 Madrid
Protocol, The American Journal of International Law, 1992, Vol.86, p.379-380.
7
Madrid Protocol on Environmental Protection
This might be the most important source of regulation for this particular research question.
In 1991 the Madrid Protocol on environmental protection in Antarctica was added to the
above mentioned Antarctic Treaty because of the awareness that Antarctica has a crucial
role in the prevention of ‘overheating’ of the earth, determining the oceanic movements and
circulation patterns and the entire earths climate25.
In this protocol Antarctica is seen as ‘a natural reserve, devoted to peace and science’26 and
for our problem Article 3 is our main source of useful information.
Article 3 of the Madrid Protocol contains the environmental principles that control the entire
document and the activities of parties on Antarctica. This is a relatively long article, divided
in different subsections, namely four:
1. That the protection of the Antarctic environment and the associated ecosystems and
the importance of research shall be primary considerations when planning activities
2. (a) activities must limit adverse effects on environment and ecosystems
(b) list of things activities must avoid (which makes clear the concept of damage to
the Antarctic environment is not one of economic-propriety assessment but
essentially one of ecological value!27)
(c) activities must be based on information that is sufficiently accurate to determine
the impact of these activities on the environment and ecosystems of Antarctica, and
a list of what these judgements to determine the activities must take account of
(d) regular and effective monitoring
(e) the monitoring shall take place to facilitate the possible unforeseen effects of
these activities
3. the priority of these activities must be scientific research and the preservation of
Antarctica to make this research possible
4. conditions for the activities under Article VII (5) of the Antarctic Treaty, the activities
for which advance notice is required
The main purpose and contribution of this protocol is:
25
Hanifah, N.A. and Hashim, R., The Madrid Protocol 1991 and its environmental impacts
towards the quality of life, Asia Pacific International Conference on Environment-Behaviour
Studies, 2011, p.400.
26 Art. 2, Madrid Protocol, 1991, retrieved online at:
http://www.ats.aq/documents/recatt/Att006_e.pdf , last visited on 22-05-2016.
27 Francioni, F., Madrid Protocol on the protection of the Antarctic environment, The Texas
International Law Journal, 1993, p.60.
8
“The appropriate environmental principles are defined for this purpose; the scope of
the basic provisions of the 1959 Treaty regarding scientific research is broadened;
and a series of juridical and institutional measures are adopted. The latter includes
consultation and cooperation among all parties in the different Antarctic
instruments; the assignment of functions to the Consultative Meetings to enact and
enforce general environmental policies; the creation of the Committee for
Environmental Protection; and the incorporation of provisions to facilitate
compliance by contracting parties, carry out inspections, respond efficiently in the
face of accidents, and ensure the compulsory settlement of disputes.”28
As mentioned before, CRAMRA is not needed anymore because of the entire ban on
activities related to mineral resources we find in Article 7 of the Madrid Protocol29. The only
exception we find here is that of scientific research. As Bush commented in 1991, the
distinguishing factor between scientific research and other mineral resources related
activities is the intention behind it: why is the information being sought?30
On the other hand, Chile declared in an interpretative declaration to the protocol that it
understood Article 7 as prohibiting all “mineral activities in all their phases” including the
search for minerals to possibly exploit them later on. However, this prohibition is therefor
not permanent because when the Antarctic Treaty Consultative Parties unanimously decide
on a mineral resources regime, Article 7 might become inactive.31
The Madrid Protocol was established as a framework convention to which Annexes were
added to specifically regulate the changing environmental issues concerning Antarctica.32
On the other hand, one should be critical towards the system of how annexes are adopted,
this being by consensus. This mechanism of consensus has its foundation in the Antarctic
28
Stokke, O.S. and Vidas, D., Governing the Antarctic: the effectiveness and legitimacy of the
Antarctic Treaty System, Cambridge University Press, 1996, p.181.
29 1991 Madrid Protocol on Environmental Protection in Antarctica, retrieved online at:
http://www.ats.aq/documents/recatt/Att006_e.pdf , last visited on 23-05-2016.
30 Bush, W., Antarctica and International Law, PART AT91C, 23, cited by French, D.,
Sustainable Development and the 1991 Madrid Protocol to the 1959 Antarctic Treaty: the
primacy of protection in a particularly sensitive environment, Journal of International Wildlife
Law and Policy, 1999, p.305.
31 French, D., Sustainable Development and the 1991 Madrid Protocol to the 1959 Antarctic
Treaty: the primacy of protection in a particularly sensitive environment, Journal of
International Wildlife Law and Policy, 1999, p.305.
32 Francioni, F., Madrid Protocol on the protection of the Antarctic environment, The Texas
International Law Journal, 1993, p.57-58.
9
Treaty itself already. But because consensus must be reached, a minority of states or even
just one single state can block the coming into force of new annexes or adaptation of
existing ones.33 Therefor the national issues of one or a few states can influence the entire
way of perception and activities on Antarctica. That is how ‘own gain’ for states enters
negotiations concerning the Antarctic environment and where the of the ban on all mining
and drilling is vulnerable, because oil is money and money has power over decisions.
Currently there are six annexes in force34:
Annex I (Environmental Impact Assessment)
Annex II (Fauna and Flora)
Annex III (Waste Disposal)
Annex IV (Marine Pollution)
Annex V (Protected Areas)
Annex VI (Liability)
I will elaborate a little further on Annexe I because it is of particular interest for this research
question.
Article 8 of the Madrid Protocol and the Environmental Impact Assessment (EIA) we find in
Annex I strengthen the obligation of Article 3.2(c) of the protocol which obliges activities in
Antarctica to be subject to “prior assessments … and informed judgements” 35. In principle,
all activities (governmental and non-governmental) on Antarctica that require prior notice
are subjected to the EIA. The only ones excluded are those that are emergencies concerning
human life36 and those likely to have a “minor or transitory impact” on the environment37. If
not excluded under the latter notion, these activities shall be subject to an Initial
Environmental Evaluation38, which is a more thorough investigation of whether or not an
33
Francioni, F., Madrid Protocol on the protection of the Antarctic environment, The Texas
International Law Journal, 1993, p.58.
34 Information retrieved online at: http://www.ats.aq/e/ep.htm , last visited on 23-05-2016.
35 Art. 3.2(c), Madrid Protocol, 1991.
36 Art. 7, Annex I to the Madrid Protocol of 1991.
37 Art. 1, Annex I to the Madrid Protocol of 1991.
38 Art. 2, Annex I to the Madrid Protocol of 1991.
10
activity van be excluded because of the “minor or transitory impact” with an addition of
monitoring of the activity when labelled as minor or transitory39.
When an activity is likely to have more than a minor or transitory impact, a Comprehensive
Environmental Evaluation shell be prepared.40 Every decision made in light of that activity
afterwards shall be based on this Comprehensive Environmental Evaluation 41 and this
activity, if allowed to proceed, shall be monitored42.
It is however very important to not that, unlike CRAMRA, the final decision whether an
activity can proceed or not, has a minor or transitory impact or not, is determined by the
involved state party and not a central institution.43 Therefor we should look critical towards
this mechanism because it basically relies on self-monitoring and self-assessment of the
states.44 Since there is possibly a huge amount of money to be made with the oil exploited in
Antarctica, this might cause some states to not prioritise the Antarctic environment but
rather their own economy or at least be under a lot of pressure from lobbying groups from
the oil industry.
Last we have Annex VI concerning the liability of state parties. This Annex gives more power
to article 16 of the Madrid Protocol because there we find the general liability for damage by
states whereas in the Annex we find the specifics. Because of the special and incredibly
important nature of Antarctica it is a must that a liability regulation is based on prevention
rather that reparation because in most cases reparation is not possible or very difficult. 45
39
Art. 2.2, Annex I to the Madrid Protocol of 1991.
Art. 3, Annex I to the Madrid Protocol of 1991.
41 Art. 4, Annex I to the Madrid Protocol of 1991.
42 Art. 5, Annex I to the Madrid Protocol of 1991.
43 French, D., Sustainable Development and the 1991 Madrid Protocol to the 1959 Antarctic
Treaty: the primacy of protection in a particularly sensitive environment, Journal of
International Wildlife Law and Policy, 1999, p.304.
44 Redgwell, C., Environmental Protection In Antarctica: The 1991 Protocol, International and
Comparative Law Quarterly, 1994, p.621.
45 Joyner, C.C., The 1991 Madrid Environmental Protection Protocol: Contributions to Marine
Pollution Law, Marine Policy, 1996, p.191.
40
11
CCAMLR
The Convention on the Conservation of Antarctic Marine Living Resources of 1980 is an
essential instrument in connection with our subject. This ecosystem based approach differs
from the traditional approach concerning exploitation and use of species and groups of
species because it regulates the ecosystem as a whole. It approaches Antarctica and its seas,
which contain most of the living resources found in the Antarctic region, as a multispecies
ecosystem that should be protected and regulated as a whole. Thereby this treaty was the
stepping stone to elevate this ecosystem approach to a component that had to be born in
mind concerning all activities on Antarctica and not just concerning the living resources of
the sea.46 This was made official in 1991 with the Madrid Protocol.
More specifically interesting is Article II of the CCAMLR:
1. (…)
2. (…)
3. Any harvesting and associated activities in the area to which this Convention applies shall be conducted
in accordance with the provisions of this Convention and with the following principles of conservation:
(a) (…)
(b) (…)
(c) prevention of changes or minimisation of the risk of changes in the marine ecosystem which are not
potentially reversible over two or three decades, taking into account the state of available knowledge of the
direct and indirect impact of harvesting, the effect of the introduction of alien species, the effects of associated
activities on the marine ecosystem and of the effects of environmental changes, with the aim of making
possible the sustained conservation of Antarctic marine living resources.
But also Article V:
1.
2.
3.
The Contracting Parties which are not Parties to the Antarctic Treaty acknowledge the special
obligations and responsibilities of the Antarctic Treaty Consultative Parties for the protection and
preservation of the environment of the Antarctic Treaty area.
The Contracting Parties which are not Parties to the Antarctic Treaty agree that, in their activities in
the Antarctic Treaty area, they will observe as and when appropriate the Agreed Measures for the
Conservation of Antarctic Fauna and Flora and such other measures as have been recommended by
the Antarctic Treaty Consultative Parties in fulfilment of their responsibility for the protection of the
Antarctic environment from all forms of harmful human interference.
(…)47
46
Redgwell, C., Protection of Ecosystems under International Law: lessons from Antarctica,
Oxford University Press, 1999, p.206.
47 Convention retrieved online at: https://www.ccamlr.org/en/organisation/camlrconvention-text , last visited on 21-05-2016.
12
Another important fact worth mentioning is the existence of a Commission: the Commission
for the Conservation of Antarctic Marine Living Resources48. The task of this Commission is
to make sure all the objectives and general principles of the CCAMLR are implemented 49.
But are the regulations and documents initiated by this Commission hard law, meaning
binding in all its forms for the contracting parties, or rather soft law? The measures adopted
by the Commission are subjected to an opt-out or objection procedure, so not hard law as
such50.
UNCLOS
The United Nations Convention on the Law of the Sea51 of 1982 is the instrument that
regulates all maritime issues in international context. It is interesting to analyse this
document in comparison with the specific regulations of Antarctica mentioned above, which
we could see as the ‘national’ laws of Antarctica.
UNCLOS defines all areas outside national jurisdiction as common heritage of mankind52
which means the resources found here are jointly owned by the global community. The
underlying issue concerning UNCLOS in Antarctica therefor is that is no territorial claim is
recognized, neither can territorial seas, exclusive economic zones or continental shelves be
determined. This is exactly what article Antarctic Treaty does by freezing all of the territorial
claims of the states. Rather problematic when you see that the the broad definition of
continental shelves in UNCLOS was meant to put most of the resources, including oil, found
in the sea-bed under national jurisdiction of coastal states.53
48
Art. VII CCAMLR
Redgwell, C., Protection of Ecosystems under International Law: lessons from Antarctica,
Oxford University Press, 1999, p.215-216.
50 Redgwell, C., Protection of Ecosystems under International Law: lessons from Antarctica,
Oxford University Press, 1999, p.216.
51 Convention retrieved online at:
http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf , last
visited on 27-05-2016.
52 Art. 136 UNCLOS
53 Ward, J., Black Gold in a White Wilderness – Antarctic Oil: the past, present and potential
of a region in need of sovereign environmental stewardship, Journal of Land Use and
Environmental Law, 1998, Vol.13, Issue 2, p.370.
49
13
Under Article 76 and 77 UNCLOS coastal states possess a continental shelf. This gives them
the right to exploit all living and non-living resources residing within that territory54. All
seven claimants of territorial sovereignty on Antarctica are members of UNCLOS and are by
definition coastal states in the sense of the treaty because of their respective claims on parts
of Antarctica. Concerning the articles of UNCLOS these states should have full exploitation
rights of their coastal territories.55 The problem is however, the Antarctic Treaty that
governs Antarctica and ‘freezes’ all of these claims (see supra). To make it even more
difficult, there has to be made a distinction between the area south of 60° South Latitude,
which is ruled by the Antarctic Treaty56, and the area north thereof, which falls outside the
scope of the Antarctic Treaty but is still subject to the CCAML and the Antarctic Treaty
System (ATS). We call this last area the sub-Antarctic islands. Then the question of possibility
of expanding the maritime rights of these claiming states rises; because their claims are not
frozen north of the 60°South Latitude UNCLOS should regulate this area which means
creating exploitation rights. But the claims them self fall within the scope of the Antarctic
Treaty meaning they are frozen. 57
In article 76 UNCLOS we see that the continental shelve of a coastal state goes up till 200
nautical miles from its coast and if it extents further, the state has to make a submission
with the Commission on the Limits of the Continental Shelve which then makes
recommendations on which the final and binding limits will be based.58 However, the
question of these extended continental shelves on the sub-Antarctica islands in relation with
the Antarctic Treaty System is yet unsolved. It is highly important because the rights and
obligations under UNCLOS must coincide with those of the Antarctic Treaty System.59 As
mentioned before, the area north of 60° South Latitude does not fall within the scope of the
Antarctic Treaty System, but does fall within the scope of the CCAMLR so if claiming states
54
Art. 77 UNCLOS
Hemmings, A., The Extended Continental Shelves of Sub-Antarctic Islands; implications for
Antarctic Governance, Polar Record, 2010, Vol.46, Issue 239, p.313.
56 Art. VI, Antarctic Treaty 1959.
57 Hemmings, A., The Extended Continental Shelves of Sub-Antarctic Islands; implications for
Antarctic Governance, Polar Record, 2010, Vol.46, Issue 239, p.314.
58 information retrieved online at: http://www.geolimits.com/services/extendedcontinental-shelf/continental-shelf/ , last visited on 27-05-2016.
59 Hemmings, A., The Extended Continental Shelves of Sub-Antarctic Islands; implications for
Antarctic Governance, Polar Record, 2010, Vol.46, Issue 239, p.321.
55
14
want to exploit these waters to which they have the exclusive right under UNCLOS, they
must do so in line with the articles of CCAMLR.60 This means bearing in mind all the
provisions of CCAMLR when exploiting these continental shelves, by for example drilling or
mining, but as we mentioned before, no explicit prohibition for drilling or mining.
These explicit prohibitions we do find when we go to the area south of 60° South Latitude
because there we fall under the Antarctic Treaty, CCAMLR and the Madrid Protocol on
environmental protection.
THE ARCTIC
I will only give the main bullet points for the legal regime of the Arctic to point out the
difference with Antarctica.
First, a big difference is the territorial claims, now frozen, on Antarctica. This is an issue we
don’t see in the Arctic because all of the land areas found in the Arctic are firmly divided
among the Arctic states meaning these areas fall under their respective national regimes and
exclusive maritime jurisdictions.61
Second, most of the regulations concerning Antarctica are legally binding, meaning a “hard
law” approach whereas the regulation of the Arctic is mostly based on “soft law”
principles.62
And third, the approach towards environmental issues. The Antarctic is dominantly ruled by
the principles of prevention and precaution. We clearly see this in the issue of the
exploitation of mineral resources because even though no mineral resource had yet been
mined, there was a potential so the consultative parties of the Antarctic Treaty decided
60
Hemmings, A., The Extended Continental Shelves of Sub-Antarctic Islands; implications for
Antarctic Governance, Polar Record, 2010, Vol.46, Issue 239, p.321-322.
61 Kolvurova, T., Environmental Protection in the Arctic and Antarctic: can the polar regimes
learn from each other?, International Journal of Legal Information, 2005, Vol. 33, Issue 2,
p.211.
62 Kolvurova, T., Environmental Protection in the Arctic and Antarctic: can the polar regimes
learn from each other?, International Journal of Legal Information, 2005, Vol. 33, Issue 2,
p.214.
15
mining could only happen after being regulated clearly.63 The Arctic doesn’t have the same
incentive because it it governed by national regimes.
III Risks of drilling
Mining for minerals, which takes place on the continent, and drilling for hydrocarbons,
which happens offshore, have a different range of possibly big risks for the oceanic
environment of the Antarctic region. First, there is the pollution of the atmosphere and the
waste produced by a mining sludge built to support the mining operations which take place
onshore.64 Second, offshore wells to drill for oil can produce oil blowouts in the waters of
Antarctica. And then there is the risk of pollution by transport vessels; they might pollute the
Antarctic marine environment by tanker accidents where the load of petroleum is spilled in
the Antarctic sea causing great damage to its environment and dependent ecosystems. 65
Even if the oil is not yet being transported but just being exploited, there is the grave risk of
floating icebergs, pieces of frozen ocean that crack off and start roaming the seas around
Antarctica because of which they are a threat to the drilling platforms that are based
offshore.66 Another risk is storage, because the Antarctic seas make regular shipments
difficult large storages for the oil would be needed. But there is the high risk of being hit by
gouging icebergs, these are icebergs so large that their bottom scrapes the bottom of the
ocean and because of which they leave a big gaping trail behind. Storages would therefor
not be able to be built on the bottom of the ocean, but neither floating on the surface
because of the risk of floating icebergs.67
Third, because personnel is needed to perform these activities, the inhabitation of people on
Antarctica will increase which includes more waste, a bigger ecological footprint and less
63
Kolvurova, T., Environmental Protection in the Arctic and Antarctic: can the polar regimes
learn from each other?, International Journal of Legal Information, 2005, Vol. 33, Issue 2,
p.215.
64 Joyner, C.C., The 1991 Madrid Environmental Protection Protocol: Contributions to Marine
Pollution Law, Marine Policy, 1996, p.189.
65 Joyner, C.C., The 1991 Madrid Environmental Protection Protocol: Contributions to Marine
Pollution Law, Marine Policy, 1996, p.189.
66 Carroll, J., Of Icebergs, Oil Wells and Treaties: Hydrocarbon Exploitation Offshore
Antarctica, Stanford Journal of International Law, 1983, p.209.
67 Carroll, J., Of Icebergs, Oil Wells and Treaties: Hydrocarbon Exploitation Offshore
Antarctica, Stanford Journal of International Law, 1983, p.211.
16
untouched natural environment for animals because there is only a small area which is not
permanently frozen, and this is a breeding spot for a lot of animals but also the place where
humans built there stations and residences.68
IV Possibilities of prevention
BY NGOs
Since international conventions and treaties are only open to states, and in some cases
supranational and international organisations, non-governmental players are as such
excluded from the legal decision making. However, they are not entirely put on the side line.
Especially big environmental organisations such as the WWF and Greenpeace have a big
influence by lobbying. In light of the Antarctic environment they have been prominent in
seeking its protection, decreasing the human population in the Antarctic region and trying to
get Antarctica as a whole designated as “World Park”.69
This idea of World Park in short means pronouncing Antarctica as an international park. In
Greenpeace’s proposal the Antarctic Treaty System stays in place and therefor Antarctica
would remain demilitarised, a non-nuclear zone and with scientific research as its main
purpose.70
BY STATES
States are obliged to make sure their system of environmental protection is in line with the
earlier mentioned legal instruments that govern the Antarctic region. They also have to bear
in mind the precautionary principle declared by the environmental impact assessment
system. This document has not yet been declared in effect, but the precautionary principle is
a recognised legal principle in international law which states have to respect71.
68
Joyner, C.C., The 1991 Madrid Environmental Protection Protocol: Contributions to Marine
Pollution Law, Marine Policy, 1996, p.189.
69 Hempel, G., Antarctic Science: global concerns, Springer-Verlag Berlin Heidelbarg, 1994,
p.20-21.
70 Deihl, C., Antarctica: an international laboratory, Boston College Environmental Affairs
Law Review, 1991, Vol.18, retrieved online at:
http://eds.b.ebscohost.com/eds/detail/detail?sid=654ed9ae-d45e-44f0-b3b5de20bb8f7cd7%40sessionmgr103&vid=7&hid=111&bdata=JnNpdGU9ZWRzLWxpdmUmc2Nv
cGU9c2l0ZQ%3d%3d#AN=edslexFD923795&db=edslex , last visited on 28-05-2016.
71 Dupuy, P.-M., Viñuales, J.E., International Environmental Law, Cambridge University Press,
2015, p.61-63.
17
Since the states parties to the 1991 Madrid Protocol on environmental protection are bound
by the ban on all activity related to exploiting mineral resources72 they can legally not drill
for oil without repercussions. There is however one remark that should be made. This full
ban on mining and drilling lasts for 50 years from the date of entry of the Madrid Protocol. 73
This means that any state party to the protocol can ask for a review conference in 2048; and
if a majority is reached, amending or abolishing the ban of Article 7.74 This risk is more than
real and especially when energy needs grow in the future, the United States and like-minded
countries will not hesitate to push aside the ban on drilling. There are no signs that point in
the direction of a declining demand for oil and that in combination with the instability in
many of the oil-exporting countries, like the Middle East, make the threat of future drillings
and mining on Antarctica real and pressing.75
So can states prevent companies from drilling in the Antarctic region? Yes, they can if the
majority of them chooses not to abolish neither amend Article 7 of the Madrid Protocol.
Another way to prevent drilling and mining for commercial reasons is adopting the proposal
mentioned above to make Antarctica a World Park.
V Conclusion
As we can conclude from the research above, the current status quo on banning mining and
drilling from Antarctica is still in place and should remain so for the next years. The risk is
however, that states change their minds because of changing economies, societies or any
other factor concerning the need for oil. This means that as long as there is an incentive to
protect Antarctica, drilling shall not be allowed. But as we have discovered, there is also the
law of the seas ruled by UNCLOS that raises some questions and could open the door for the
search for oil.
Nonetheless, there is still the pushback from environmental NGOs trying to save the last
wildernesses of this earth from human greed, that we can count on.
72
Art. 7 Madrid Protocol of 1991.
Art. 25(2) Madrid Protocol of 1991.
74 Scott, K.N., Ice and Mineral Resources: Regulatory Challenges of Comercial Exploitation,
Exploring the Last Continent: an introduction to Antarctica, 2015, Springer International
Publishing, p.501.
75 Ward, J., Black Gold in a White Wilderness – Antarctic Oil: the past, present and potential
of a region in need of sovereign environmental stewardship, Journal of Land Use and
Environmental Law, 1998, Vol.13, Issue 2, p.378-379.
73
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So as to conclude, currently Antarctica is protected against drilling and mining as long as
these rules stay in place. Maybe more coordination with the immensely important treaty of
UNCLOS is recommendable, because it would give the regimes governing Antarctica more
strength and support. But these are all things decided on international level taking huge
amounts of time and discussion, so is there is to be made a change in regime, hopefully only
for the better, then this is probably not for the upcoming years yet.
19
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