A World Park in Antarctica: The Common Heritage of Mankind
By Ellen S. Tenenbaum
INTRODUCTION
The status of the proposed Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA or Convention) was thrown into limbo with the termination of its one year signature period on November 25, 1989. Two states whose signatures are necessary for the Convention to enter into force have declined to sign it. Both France and Australia advocate that no mineral resource exploitation occur in Antarctica in order to ensure that the Antarctic environment is protected. At the Fifteenth Antarctic Treaty Consultative Conference, held in Paris in October 1989, the Antarctic Treaty Consultative Parties (ATCPs) agreed to convene a special consultative meeting in Santiago, Chile, at which the ATCPs are endeavoring to devise a comprehensive environmental protection system for Antarctica. At the meeting, the ATCPs are considering France and Australia's joint proposal for a comprehensive convention to make Antarctica a wilderness reserve and land of science. The United States, on the other hand, has viewed the fall meeting as an opportunity to “consolidate, revise and expand the current environmental protection afforded by the Treaty system," thereby making the Convention palatable to France and Australia. The current impasse presents a moment for reflection on the validity and advisability of the proposed regime, as well as serious consideration of the oft-discounted alternative of establishing a world park in Antarctica based on the common heritage of mankind as a principle of international law.
One of the primary charges levelled against the CRAMRA from the inception of its negotiations in 1981 came from developing states which objected to control of mineral resource activities (or any other activity as well) in Antarctica by the elite, self-perpetuating group of the 1959 Antarctic Treaty Consultative Parties. Developing states argued that Antarctica is a common heritage of mankind territory which cannot be appropriated and in whose management and benefits all states must share. They were motivated to argue along these lines by the desire to gain access to and benefit from possible future mineral resource exploitation in Antarctica. The common heritage principle, however, is equally well suited to function as the legal basis for the establishment of a world park in Antarctica.
The 1959 Antarctic Treaty set up a system for managing Antarctica under which only those states conducting “substantial scientific research” in Antarctica could participate in management decision-making. Less developed states lacking the financial and technological resources to brave the harsh Antarctic climate to establish a scientific station or expedition have been excluded from decision-making regarding Antarctica. Additionally, Article IV of the Treaty froze the claims to Antarctic territory of seven claimant states, neither acknowledging nor extinguishing them. Thus, the Antarctic Treaty has created a system that operates with a number of inherent conflicts of interest: those between ATCPs and non-ATCPs, claimant and non-claimant states, and developed and developing states.
For all its lack of democracy, however, the regime that has controlled Antarctica under the Antarctic Treaty can be seen as an institutional step along the path to internationalization of the huge, uninhabitable continent. From the inception of the Treaty, state practice in managing Antarctica has been characterized by thirty years of limited international cooperation. It is notable in this regard that under the existing system both Treaty parties and non-parties have made accommodations. For example, sensitive to the challenge by developing states, the ATCPs have opened their previously secret meetings to include non-consultative parties and invited international organizations, and have increased the availability of previously confidential documents. In return developing states have tempered the stridency of their criticism of the Antarctic Treaty system and its exclusivity. The “eventual and inevitable solution” to the international political instability created by the current situation — the various conflicting interests and inconsistent theories of legal status — “lies in an internationalized regime for the entire Antarctic sector.”
This Note will demonstrate that the common heritage of mankind principle can provide a bureaucratically feasible and environmentally and politically sound legal basis for establishing a world park in Antarctica. To that end, Part I will define and briefly trace the evolution of the common heritage of mankind principle, comparing it to alternative legal theories of territorial status and showing how they are inappropriate ones on which to base management of Antarctica. Part II will outline the current Antarctic Treaty system, including the proposed Convention on the Regulation of Antarctic Mineral Resource Activities, and will demonstrate the environmental protection and political flaws in, as well as the inequity of, this system. Part III will discuss the imperative concern of protecting the fragile Antarctic environment and the reasons for its primacy in developing a management regime for Antarctica. Part IV will propose an international management regime for the Antarctic world park based on the common heritage of mankind principle — a regime that is environmentally sound, politically stable, institutionally feasible, and perhaps even politically achievable.
The status of the proposed Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA or Convention) was thrown into limbo with the termination of its one year signature period on November 25, 1989. Two states whose signatures are necessary for the Convention to enter into force have declined to sign it. Both France and Australia advocate that no mineral resource exploitation occur in Antarctica in order to ensure that the Antarctic environment is protected. At the Fifteenth Antarctic Treaty Consultative Conference, held in Paris in October 1989, the Antarctic Treaty Consultative Parties (ATCPs) agreed to convene a special consultative meeting in Santiago, Chile, at which the ATCPs are endeavoring to devise a comprehensive environmental protection system for Antarctica. At the meeting, the ATCPs are considering France and Australia's joint proposal for a comprehensive convention to make Antarctica a wilderness reserve and land of science. The United States, on the other hand, has viewed the fall meeting as an opportunity to “consolidate, revise and expand the current environmental protection afforded by the Treaty system," thereby making the Convention palatable to France and Australia. The current impasse presents a moment for reflection on the validity and advisability of the proposed regime, as well as serious consideration of the oft-discounted alternative of establishing a world park in Antarctica based on the common heritage of mankind as a principle of international law.
One of the primary charges levelled against the CRAMRA from the inception of its negotiations in 1981 came from developing states which objected to control of mineral resource activities (or any other activity as well) in Antarctica by the elite, self-perpetuating group of the 1959 Antarctic Treaty Consultative Parties. Developing states argued that Antarctica is a common heritage of mankind territory which cannot be appropriated and in whose management and benefits all states must share. They were motivated to argue along these lines by the desire to gain access to and benefit from possible future mineral resource exploitation in Antarctica. The common heritage principle, however, is equally well suited to function as the legal basis for the establishment of a world park in Antarctica.
The 1959 Antarctic Treaty set up a system for managing Antarctica under which only those states conducting “substantial scientific research” in Antarctica could participate in management decision-making. Less developed states lacking the financial and technological resources to brave the harsh Antarctic climate to establish a scientific station or expedition have been excluded from decision-making regarding Antarctica. Additionally, Article IV of the Treaty froze the claims to Antarctic territory of seven claimant states, neither acknowledging nor extinguishing them. Thus, the Antarctic Treaty has created a system that operates with a number of inherent conflicts of interest: those between ATCPs and non-ATCPs, claimant and non-claimant states, and developed and developing states.
For all its lack of democracy, however, the regime that has controlled Antarctica under the Antarctic Treaty can be seen as an institutional step along the path to internationalization of the huge, uninhabitable continent. From the inception of the Treaty, state practice in managing Antarctica has been characterized by thirty years of limited international cooperation. It is notable in this regard that under the existing system both Treaty parties and non-parties have made accommodations. For example, sensitive to the challenge by developing states, the ATCPs have opened their previously secret meetings to include non-consultative parties and invited international organizations, and have increased the availability of previously confidential documents. In return developing states have tempered the stridency of their criticism of the Antarctic Treaty system and its exclusivity. The “eventual and inevitable solution” to the international political instability created by the current situation — the various conflicting interests and inconsistent theories of legal status — “lies in an internationalized regime for the entire Antarctic sector.”
This Note will demonstrate that the common heritage of mankind principle can provide a bureaucratically feasible and environmentally and politically sound legal basis for establishing a world park in Antarctica. To that end, Part I will define and briefly trace the evolution of the common heritage of mankind principle, comparing it to alternative legal theories of territorial status and showing how they are inappropriate ones on which to base management of Antarctica. Part II will outline the current Antarctic Treaty system, including the proposed Convention on the Regulation of Antarctic Mineral Resource Activities, and will demonstrate the environmental protection and political flaws in, as well as the inequity of, this system. Part III will discuss the imperative concern of protecting the fragile Antarctic environment and the reasons for its primacy in developing a management regime for Antarctica. Part IV will propose an international management regime for the Antarctic world park based on the common heritage of mankind principle — a regime that is environmentally sound, politically stable, institutionally feasible, and perhaps even politically achievable.