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Resource Sharing in Antarctica:
For Whose Benefit?
Francesco Francioni *1
I. Introduction
Long neglected by international lawyers, Antarctica has recently begun to occupy center stage in world politics. Increasing concern about the protection of the environment, the broadening hole in the ozone layer over the continent, and the debate about the proper role of the United Nations in Antarctic politics, have all been factors in extending the interest over Antarctica well beyond the limited group of the States Parties to the Antarctic Treaty of 1989.2
No other single factor, however, has contributed so much to stir up such interest as the opening of negotiations for the adoption of an Antarctic Minerals regime by the Consultative Parties to the Antarctic Treaty. From the time of their inception, such negotiations had been challenged by non-governmental organizations concerned with the future of the Antarctic environment and by a group of states within the UN General Assembly whose view is that the general interest of all mankind in Antarctic resources would require a universal involvement in the building of the pertinent legal regime, rather than a restricted negotiating forum within the Antarctic Treaty System.
Despite this opposition, the Consultative Parties concluded the minerals negotiations in Wellington, New Zealand, on 2 June 1988, when the Convention on the Regulation of Antarctic Mineral Resource Activities was adopted together with the Final Act of the conference.3 The Convention was opened for signature on 25 November 1988 and it was to remain open until 25 November 1989 for signature by states which had participated in the final session of the Antarctic minerals negotiations (Article 60). This period of time has now elapsed and several events have occurred that have made the issue of resource management and environmental protection in Antarctica more timely and complex. The first was the announcement made by the Government of Australia in May 1989 that it would not sign the Convention. Shortly thereafter the French Government decided to join the Australian position in promoting initiatives for the adoption of a comprehensive agreement on the protection of the Antarctic environment.
The second event was the disastrous shipwreck of the Argentinian vessel Bahia Paraiso which ran aground in Antarctic waters in January 1989. This accident, unfortunately followed by the even graver Exxon Valdoz oil spill in Alaska, dramatized concerns about hazardous industrial and transport activities in polar regions and ultimately led other countries to decide not to sign the Wellington Convention. These countries include Italy, Belgium and India.
Thirdly, the XVth Antarctic Consultative Meeting took place in Paris, 9-20 October 1989, and two recommendations were adopted that call, respectively, for the convening of a meeting to consider a comprehensive set of environmental protection measures, and for the starting of negotiations for the adoption of a Protocol on liability for mineral resource activities in Antarctic as required by Article 8(7) of the Wellington Convention.
Against this complex background, this note is intended to offer some reflections on a few general questions that have been raised in the aftermath of the adoption of the minerals regime. These questions are:
1) whether the Antarctic minerals convention is necessary or desirable in view of the perceived threat that it poses to the Antarctic environment;
2) whether the solutions adopted in the Convention represent a balanced accommodation between the interests of those states that claim sovereignty in Antarctica and of those states - the great majority - that oppose such claims;
3) whether the Convention sufficiently takes into account the interest of the international community as a whole, particularly in view of the special international status of Antarctica and of the possibility of subjecting its resources to the regime of the common heritage of mankind.
1
* The author participated as legal advisor to the Italian delegation
at the 1987 and 1988 sessions of the Antarctic minerals negotiations. The
views expressed in this note are entirely his own and do not necessarily
reflect or express the opinion of the Italian Government.
2 The
Antarctic Treaty was adopted at Washington on December 1 1959 and entered
into force on June 23 1961. The original feature of the Treaty - whose
main purpose was to establish a system of international administration in
order to avoid the risk of conflicts arising from competing territorial
claims - is the two-tiered structure of consultative and non-consultative
Parties. The latter are the original 12 parties to the Treaty plus the
subsequent acceding Parties which have shown to be able to conduct
substantial scientific activities in Antarctica so as to acquire the
capacity to take responsible decisions over Antarctic matters in the
consultative meetings that are held periodically. As of May 1 1989 there
are 38 Parties and 24 Consultative Parties, with the number of the latter
group progressively increasing as interest in Antarctica increases.
After completion of this article, three new states became
Consultative Parties as a consequence of deliberations adopted by
consensus at the XVth Antarctic Treaty Consultative Meeting, held in
Paris, October 1989. They are: Finland, Peru and South Korea.
3 The
English text of the Convention, whose authentic languages are also French,
Russian, Spanish and Chinese, is reprinted in 27 ILM (1988) 859.
© 1990-2004 European Journal of International Law
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