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Loan, Jeffrey --- "The Common Heritage of Mankind in Antarctica: An Analysis in Light of the Threats Posed by Climate Change" [2004] NZYbkIntLaw 9; (2004) 1 New Zealand Yearbook of International Law 149

The common Heritage of Mankind in Antarctica: An Analysis in Light of the Threats Posed by Climate Change

Jeffrey Loan*

I. Introduction

Antarctica is a most unique continent both geographically and legally. It is the ‘coldest, windiest, highest, driest, least inhabited, most desert-like’1 of all the continents. Its land area is 98 per cent covered by ice, and it has an important role in determining the climate and ocean patterns of Earth. However, it is increasingly under threat from global warming.2 Any subsequent rise in sea levels from the Antarctic ice sheet melting would have devastating global effects, particularly for low-lying Pacific Island states. This paper will examine the Antarctic Treaty System (ATS) and question whether a common heritage of mankind (CHM) regime would be better able to protect the Antarctic environment from localised problems as well as from the global threats of climate change.

CHM is an important development in reframing how mankind views common areas. Rather than treating common areas as susceptible to unilateral state plunder, CHM attempts to create a holistic approach and recognise mankind’s inherent interest in the joint administration, exploitation and protection of the resource. While the concept has the potential to radically alter the treatment of common areas, it is hindered by a lack of legal certainty over its content. As a result of this uncertainty the concept is unable to confer any legal obligations on states. It is a merely a label for a set of varying provisions, each of which can only become legally binding if invoked by a treaty.

This paper will build upon the modern understanding of CHM as canvassed in the first part of this paper and will examine whether it should apply to Antarctica. While it is possible to criticise the exclusiveness of the ATS, it provides stability in the administration of Antarctica that CHM cannot guarantee. A CHM regime is unlikely by itself to significantly alter attitudes towards climate change initiatives, and would place at risk much of the scientific and environmental co-operation that has been fostered under the ATS. In light of the uncertainty surrounding CHM, the potential for differing interpretations and an emphasis on resource exploitation, the concept should not be applied in its present form to Antarctica.

II. The Threat of Climate Change

The problem of climate change is recognised as a ‘common concern of mankind’3 and has been addressed at an international level. The ‘ultimate objective’ of this international effort is the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.4 While the Kyoto Protocol has created a regime with set commitments and timetables for emissions reductions, it is a regime that has been criticised for not going far enough to significantly affect the consequences of climate change.5 Given the particular vulnerability of Pacific Island states to the adverse effects of climate change,6 this paper will examine the potential for advocating a CHM regime in Antarctica to help alleviate the threats posed to low-lying states by rising sea levels. While global warming will have many different effects on many different countries, this paper will only focus on the threats posed by rising sea levels.

Since the 1950s there has been an increase in air temperature in Antarctic Peninsula of about 2°C.7 This has directly caused seven monitored ice shelves to decline by about 13,500 km2 since 1974, according to the National Snow and Ice Data Center.8 While the break-up of ice shelves has a negligible affect on sea level rise9 there may be further consequences later. Ice shelves act as a braking system, slowing the approach of glaciers to the sea, while also keeping the warmer sea air at a distance from the glaciers.10 The removal of ice shelves in the Antarctic peninsula could therefore have a substantial impact on sea levels by increasing the possibility of the Antarctic ice sheets melting.

The threat that rising sea levels pose to low-lying states is well documented. The British Antarctic Survey notes that sea levels are predicted to rise at an average rate of 5mm a year for the next 80 years,11 while the Intergovernmental Panel on Climate Change predicts that sea levels will rise between 0.09m to 0.88m over 1990 to 2100.12 The impact of these changes in sea level will be very severe on low-lying Pacific Island states, particularly for Tuvalu, Kiribati, the Cook Islands, and the Federated States of Micronesia.13 Due to the disastrous consequences that would be associated with the Antarctic ice sheet melting it is necessary to examine whether recognising mankind’s common interest in Antarctica would help alleviate some of the threats facing these ‘innocent victims’14 of climate change.

However, before considering the possibility of applying CHM principles to Antarctica it is necessary to examine the development of the concept.

III. Res Communes and CHM

Common areas, otherwise known as res communes, have a unique legal status as a ‘thing which, because of its nature can be enjoyed and used by everyone but cannot be exclusively and wholly appropriated’.15 The traditional example of res communes is the English Commons where livestock were free to graze. In the 1600s Samuel Pufendorf described res communes as negative common property, which is ‘a type of property precluded by nature from being subject to exclusion by individuals or by states’.16 Hugo Grotius had a similar approach and proposed that not only did res communes fall outside of a class of property appropriate for individual or single-state control, but also that some form of ‘international governmental regime’ was necessary to administer mankind’s common property.17

These theories are important in understanding the problems facing common areas today. While res communes may be immune from individual ownership, the resources of the area are not as sacrosanct. The exploitation of resources from res communes, and the increasing threat of transnational problems such as pollution, means that there needs to be some method of administering res communes in a consistent and responsible manner if they are to be maintained. The growing recognition of the importance of many global common areas has resulted in the emergence of CHM as a means to manage these areas. A CHM regime provides the opportunity for a standardised approach to many issues, such as environmental protection, access rights, and resource exploitation.

A. Tragedy of the Commons

A major problem associated with communal property is trying to avoid what Garrett Hardin has coined as the ‘tragedy of the commons’.18 This concept is based on each individual enjoying the benefits of exploiting a common resource, while all users carry the cost. The cost to each user by taking more from the commons is therefore relatively small compared with the utility being achieved. However, as all users are similarly motivated, the eventual outcome is the degradation of the commons.19 It is important to note that this concept, which paints a ‘disempowering, pessimistic vision of human prospect’, has been heavily criticised.20 Although it is possible to challenge the basis of Hardin’s reasoning21 and his view on the inevitability of this situation,22 the concept remains very much applicable to the analysis of unmanaged common areas. Unmanaged commons based on open access, as distinct from commons where a social infrastructure can limit overuse, are vulnerable to over-exploitation due an inability to impose regulated use.23

While the Hardin’s theory was originally applied to communal grazing areas, it is still applicable to cases involving global commons. Erin Clancy notes that

[w]hen vast and complex ecosystems like the high seas are involved, there is much more opportunity for the Tragedy to occur. The reasons are simple, there are many more users, and there is much less incentive for self regulation.24

In the case of global res communes, the lack of any external mechanism requiring states to internalise the costs of their activities means that the areas are susceptible to over-exploitation.

Given the inherent value and finite supply of many global commons, the question becomes how to lessen the tragedy of the commons in the face of competing interests of exploitation and environmental protection. Of the many theories put forward, the concepts of the common heritage of mankind and sustainable development are two of the better-known suggestions for avoiding over-use of common areas. This paper will examine CHM to see how the concept lives up to its potential ability to prevent the tragedy of the commons from occurring in global commons.25

B. Res Communes & CHM: Property Rights

The relationship between res communes and areas governed by CHM is significant. To date CHM has only been applied to areas that are traditionally res communes. This relationship can be helpful in determining what property rights, if any, are conferred under a CHM regime. Objects res communes and areas governed by CHM have been described by some commentators as being part of the joint property of mankind.26 While such a description may just be a method of affirming that all mankind have equal claim to the area, it is conceptually inaccurate as it implies that the ‘right to use’ the property is a property right. Prue Taylor notes that it is important to remember that CHM areas, like res communes, are not owned by anyone, and therefore cannot be the joint property of all states in the name of mankind.27 Instead of property rights, both CHM and res communes confer rights to use the particular area. This distinction is important because of the implications for resource exploitation.

Developing states that generally want an exploitation regime and an equitable division of resources, support a ‘joint property’ interpretation of CHM. By contrast developed states — that generally wish to retain the traditional freedoms of use — support a ‘common use’ interpretation of CHM without any property rights. If a joint property approach is adopted then every state has a corresponding right to allow or prohibit certain activities. In the view of Arvid Pardo:

If the common heritage of mankind is owned it can be used and abused by the owners, the rights of future generations could be placed in jeopardy, it could be administered in all respects at the discretion of a simple or qualified majority of states, and, if the majority of owners so wished, it could even be divided into parts.28

The joint property approach to CHM should not be endorsed as it places too much emphasis on territory appropriation, and the corresponding right of resource exploitation. Instead, ‘common use’ should be seen as the basis for CHM and res communes. While a ‘common use’ approach also has the potential for over-exploitation, it reiterates the important idea that a holistic approach is needed rather than a conferring of property rights.

IV. Application of CHM

Although CHM is an accepted concept for the management of certain areas outside of national jurisdictions, no clear definition exists. While a certain level of ambiguity may encourage its inclusion in treaties, if the concept is too vague then it becomes no more than a political concept of no real relevance. While it is unlikely there will ever be unanimity over the content of the concept, tracing CHM’s development may help to establish some of its core features. This section will examine attempts to recognise mankind’s universal interest in the administration of particular resources.

A. Writings of Arvid Pardo

The modern use of CHM can be traced to an address by Ambassador Arvid Pardo of Malta to the United Nations in 1967.29 In that speech Pardo urged the General Assembly to recognise the deep seabed beyond national jurisdiction as being part of the common heritage of mankind. In 1970 the UN General Assembly, persuaded by Pardo’s proposals, adopted a resolution recognising that such an area was the common heritage of mankind.30 Pardo went a step further in 1971 when he unsuccessfully tried to lobby the General Assembly’s Peaceful Uses of the Seabed Committee to extend the concept of CHM and apply it to the ocean space beyond national jurisdiction.31 Not only are the principles Pardo espoused relevant to determining the current content of CHM, but the motivations behind his desire for a new regime are also important.

Pardo’s statement addressed three concerns over the use of the deep seabed: the effects of potential military use; the importance of the oceans to the earth’s ecological system; and replacing the traditional freedom of the seas and territorial sovereignty with an equitable regime for participation and distribution.32 The traditional regime of freedom of the seas and territorial sovereignty was seen as a major cause of inequality amongst states. Only technologically advanced states could make use of the deep seabed, and only coastal states could benefit from having territorial sovereignty over the ocean bed. The primary motivation for Pardo to apply this concept to the deep seabed appears to have been to create a new more equitable regime for the distribution of wealth.

Pardo wanted to enable the ocean space to become an accessible commons for all states, and subsequently ensure that any exploitation of the seabed would be conducted for the benefit of the international community as a whole.33 He urged that, ‘[t]he needs of poor countries, representing that part of mankind which is most in need of assistance, should receive preferential consideration in the event of financial benefits being derived from the exploitation of the sea-bed and ocean floor for commercial purposes’.34 Framing his proposals as a strike against colonialism, Pardo set CHM on a collision course between ‘the haves’ and ‘the have nots’ and a conflict over exploitation that continues to plague CHM to the present day.35

B. The Outer Space Treaty 1967

The 1967 Outer Space Treaty36 never makes any specific mention of CHM, but it has been labelled as ‘the core of the Common Heritage of Mankind Principle’.37 The preamble emphasises the ‘common interest’ of mankind in outer space and Article I stresses that outer space is ‘the province of mankind’ and that exploration must benefit all. More specifically Article II establishes that the moon cannot be appropriated, and Article IV states that ‘celestial bodies’ must be only used for peaceful purposes.

The recognition in the Outer Space Treaty of the principles of shared benefits, non-appropriation, and peaceful uses, are similar to the principles that have later been incorporated into common heritage regimes. Moreover, the principle of shared benefits from outer space has been extremely limited due to an interpretation of the Treaty that emphasises the ‘freedom of outer space’. Such an interpretation is similar to the old concept of freedom of the high seas whereby a particular resource belonged to everyone until it was ‘captured’ by someone.38 The Outer Space Treaty is an important point in the development of CHM even though the treaty never refers to the concept. The Treaty indicates the intent of its parties to create a regime that benefits mankind as a whole rather than the people of particular states. Although the treaty does not accept CHM as a bona fide legal principle, it is interesting to note the universal approach to resources and territory that underpins other CHM initiatives.

C. The Sea-Bed Declaration 1970

In 1970 the United Nations General Assembly adopted Pardo’s proposal and passed the Sea-Bed Declaration that stated the seabed and ocean floor, beyond the limits of national jurisdiction, was ‘the common heritage of mankind’.39 The concept was not defined, and the United States, amongst others voting for the resolution, expressed the view that the concept would be defined through negotiations for an international regime.40 The Declaration was very specific in its provisions and included references to non-appropriation,41 international management,42 equitable sharing of benefits,43 co-operation to prevent pollution,44 peaceful use45 and the requirement that exploitation be for the benefit of mankind.46

The Sea-Bed Declaration never prohibited unilateral exploitation of the deep seabed but imposed obligations on those states that undertook expeditions. However, this was the beginning of the controversy over the content of CHM. As will be explained later, for some it was a method of environmental protection, for others a method of avoiding conflict, and for others CHM was a method for enabling resource exploitation. The development of CHM in this treaty would later become the basis of the common heritage provisions in the Law of the Sea Treaty.

D. The Moon Treaty 1979

The Moon Treaty47 was adopted by the General Assembly in 1979 and entered into force as a treaty in 1984. This was significant because it was the first occasion where the phrase ‘the common heritage of mankind’ was incorporated into a treaty. The Moon Treaty declares the moon and its natural resources to be CHM, and requires its parties to create an international regime to govern the exploitation of resources and to ensure equitable sharing of benefits.48 Other relevant principles include reserving the use of the moon for exclusively peaceful purposes49 and promoting the protection of the environment.50

However, like the Outer Space Treaty, the Moon Treaty does not create definitive law regarding outer space. None of the leading space powers are a party to the treaty,51 and so it is possible to view these two treaties as no more than self-denying statements amongst states that have little likelihood of being significant power brokers in matters concerning outer space. Due to the absence of the major space powers, the Moon Treaty has also been described by one commentator as ‘more a moral and philosophical obligation than a legal entitlement’.52 Despite these limitations, this treaty is relevant to the development of the law concerning the common heritage of mankind. Not only does it show the importance of getting states to consent to any CHM regime, but it reinforces the view that even if states are not directly in contact with a particular resource there may be a common interest amongst states (and even humanity) in realising that some resources are of such a value that their administration and exploitation should not be left to individual states.

E. The United Nations Convention on the Law of the Sea 1982 (UNCLOS III)

Under the Law of the Sea Treaty, article 136 deems the seabed, ocean floor, and subsoil, beyond the limits of national jurisdiction (the ‘Area’) to be CHM.53 The Area is to be developed for all mankind, but ‘special consideration for developing states…shall be permitted’54 and the participation of developing states in activities ‘shall be promoted’.55 Although the Law of the Sea Treaty does not define CHM, it does contain an extensive list of provisions that relate to the concept. From these provisions, and reactions to them, it is possible to further understand what the common heritage of mankind can be said to encompass. The notion of a sharing of benefits is important to the concept of CHM, but the particular bias in this treaty towards developing states may go too far. It is possible to contend that this original version of the treaty, in which developing states played a prominent role,56 became more self-serving than the concept of CHM was ever meant to be. This notion of equitable sharing will be examined in more detail later in the paper.

The International Sea-Bed Authority was also created to have exclusive authority to organise and carry out activities (principally mining) within the area on behalf of mankind.57 The question of exploitation under any CHM regime is contentious, and it is apparent that the primary reason that the United States did not initially sign this treaty was the loss of control over mining. As a result, several developed states also reserved the right to undertake unilateral mining.58 The solution to this impasse was to amend certain provisions.59 Under the Clinton Administration the United States signed UNCLOS III after Part XI had been amended to include free market principles, including efficiency and cost-effectiveness, and allowing changes to be made to the regime as dictated by existing economic circumstances.60 As it stands UNCLOS III is an example of a workable regime based on CHM. Although ideological differences exist, they were not exacerbated largely because developed states were willing to relinquish their interests in unilateral exploitation to an international institution.

F. Conclusion

These instruments do not support either a joint-property or common use approach to CHM, but do raise some uncertainty concerning the exact nature of the rights conferred by declaring a resource to be CHM. Perhaps it is because UNCLOS III did not support either interpretation that it was possible to gain a consensus and establish a CHM regime. The central theme that is apparent is a recognition that some resources are so inherently important to mankind that their administration should be removed as much as possible from the whims of state policy. These instruments also underline the importance of getting states to consent to a CHM regime before the concept can be said to apply to that particular resource.

V. Analysing the Uncertainties Surrounding CHM

The development of CHM has indicated a trend towards recognising mankind’s universal interest in the administration of important global resources. Despite this recognition, there is no common consensus over a workable definition of CHM. This is because each identifiable feature of CHM is subject to interpretations by states that pursue a course that is calculated to be in their self-interest. This politicisation has meant that the need for a holistic approach is not being borne out by state practice. As will be illustrated, the varying interpretations of the concept have dramatically lessened the status of CHM as a viable alternative to the traditional concept of res communes.

A. Uncertainty Surrounding the Features Identified by Arvid Pardo

For Arvid Pardo, the modern day founder of CHM, the concept can be explained as consisting of the following:

[F]irst, the common heritage can not be appropriated — it could be used but not owned; second, the use of the common heritage required a system of management in which all users must share; third, it implied an active sharing of benefits, including not only financial benefits but also benefits derived from shared management and exchange and transfer of technologies; fourth, the principle of common heritage implied eventual reservation for peaceful purposes; and, finally, it implied transmission of the heritage substantially unimpaired to future generations.61

While Pardo formulated his definition with the seabed in mind, the principles can be applied to CHM broadly. This paper will examine Pardo’s view of CHM and not only test how it compares with CHM’s application so far but how it may effectively be applied in the future. As will be illustrated, the features of Pardo’s tenet are subject to such divisive interpretations that formulating a working definition is impractical.

1. Non-appropriation

Under current CHM regimes, states and individuals have the right to use the particular resource but not to own the territory. This paper will argue that despite non-appropriation of territory being an important aspect of current CHM regimes, it is not a pre-requisite for the creation of any future regime. Adopting such an approach widens the potential areas that could be administered under CHM in the future.

For CHM advocates, the application of res communes to common resources is an outdated concept, as it is now realised that mankind has a common interest in managing the exploitation of common resources, maintaining the earth’s ecosystem, and as a result, ensuring its own survival.62 Pursuing national interests through exploiting common areas has resulted in harm to the environment and unequal distribution of wealth. CHM can therefore be seen as growing out of a need to administer res communes areas in a way that recognises the growing common interest in protecting the environment and in the equitable distribution of wealth from these resources.

In the opinion of Alexandre-Charles Kiss, CHM is the ‘materialization of the common interests of mankind’.63 Kiss believes that common interest is at the heart of CHM, and that the concept is essentially concerned with non-destructive use of a resource and subsequent transmission to future generations.64 His view is that non-appropriation is not an essential element of CHM but may be present in any such regimes if it is necessary to ensure that the resource is not destroyed. This is the correct approach to adopt. While non-appropriation is essential in the sense that a state may not appropriate territory once it is deemed to be CHM, it is not a pre-requisite to the establishment of a CHM regime that there be no existing sovereign claims over the territory. Such an approach will have significant implications for applying CHM to Antarctica.

If non-appropriation of territory is not a required element of CHM but is dependent on the resource in question, then it becomes possible for CHM to apply to a truly global resource. Prue Taylor uses the example of the atmosphere to advocate for the extended application of CHM. If states claim sovereignty over the atmosphere above their territory then under Pardo’s definition CHM could not apply, as the resource would have been partly appropriated. However, Taylor submits that CHM and sovereignty claims are not mutually exclusive.65 While non-appropriation is essential to res communes to ensure freedom of use, if common interest is the paramount consideration in CHM, then CHM can be applied without a state having to abandon all sovereign rights. Taylor writes, ‘provided the global resource is of the nature that generates sufficient common interest in its continued peaceful use and good management, in the interests of all humanity, then CHM can arguably apply’.66

This common interest approach to CHM has merits, and would allow CHM to be extended to global resources, and even resources within the jurisdiction of a single state. Such a proposal would not be inconsistent with the rationale behind the common heritage of mankind if it were recognised that the concept is primarily focussed on meeting the common interests of mankind. Therefore, the presence of state sovereignty over an area should not be fatal to initiating a CHM regime. Pardo’s theory of non-appropriation was formulated with the seabed in mind, and so is accurate as non-appropriation was the most efficient manner of ensuring non-destructive use of that particular resource. However, acknowledging the potential for a wider application of the concept, non-appropriation should be replaced with ‘non-exclusive use’.67 This would recognise that states cannot make claims on CHM territory, and that states in possession of CHM territory must limit their rights to treat the resource as they wish.

The practical difficulties associated with broadening the concept of CHM are immense. Extending CHM to areas within a state’s jurisdiction would require that state’s consent, and a willingness to limit their exercise of sovereignty over that particular resource. Joyner writes, ‘so long as states remain the ultimate arbiters of international relations, they will jealously guard control over the allocation of their sovereign resources’.68 While the extension of CHM is unlikely at present, it may not be so unlikely in the future. CHM is currently dependent on states being willing to relinquish potential sovereign claims over common areas, and while it is improbable in the current Westphalian state system that states would relinquish sovereign rights over their own territory, it may not be so improbable in the future.

Anne Dowling writes of the conflict between CHM and sovereignty, ‘CHM raises perhaps the greatest hope of turning sovereignty on its head without eliminating it completely; that is, states could still maintain authority over their resources, but would be required to keep a greater global good in mind when making decisions affecting [them]’.69 It is this greater good that Pardo was striving to promote. To this end, while non-appropriation may be an important, and indeed necessary feature of a particular CHM regime, it is not an essential element of the concept. Such an approach recognises that CHM is concerned with resource management, rather than territorial management.70

A dramatic shift in world politics is needed for common interest to become the norm in dealings with common areas. States would need to be more willing to ‘sacrifice some of their limited national interest for the sake of a moral, supranational good’.71 For CHM to become a truly viable alternative to a state-centric approach to resources, the common interests of mankind must replace the realist notion of national interests. However, it is beyond the scope of this paper to theorise on the prospects of CHM by offering any alternatives to the present state system.

2. Shared Management

CHM differs significantly from res communes because under a CHM regime the international community must share the management of a resource. This helps to solve the ‘tragedy of the commons’ whereby although a resource was available to be used by everyone to their benefit, the users were not responsible for maintaining the resource. The notion of shared management is recognition that mankind has a common interest in having a consistent policy for the administration of the particular resource. An example of this is the International Sea-Bed Authority created under the Law of the Sea Treaty to organise and control activities (particularly mining) within the designated area.72

Although a system of shared management is necessary to administer a CHM resource, it does not necessarily follow that all states must be involved in managing all aspects of the resource. Establishing joint-management does not require establishing any particular management structure. Each resource must be considered on a case-by-case basis. It is quite possible that effective management of a resource can occur if all states agree on the overall policies concerning the particular resource but then delegate authority to a smaller body, a group of states, or even a private company to administer the day-to-day running of the resource. It is not the sharing of functions that is important with CHM, but the idea that a resource will be more likely to be managed in the interests of mankind if there is some kind of shared management.

While the principle of shared management is a necessary component of any CHM regime, it did not evolve from notions of environmental concern for the particular area. Rather, it was in the interests of many states to advocate shared management. On the one side are numerous developing states who are attempting to lessen the inequalities in the world through shared participation in exploitation, while on the other side are the more powerful nations who believe the shared management of a resource to be at odds with national sovereign interests.73 It appears that shared management has become an accepted component because it avoids unproductive rivalries, and ensures that future conflicts over interpretation of CHM can be resolved within an appropriate forum.

3. Sharing of Benefits

Pardo’s notion of CHM envisaged that under CHM the international community would share the benefits of resource exploitation.74 This issue is very divisive and is a major reason why the Convention on the Law of the Sea and the Moon Treaty were particularly contentious.75 However, if CHM is to exist as a legal alternative to state sovereignty and res communes, then it is necessary for the concept to include some aspect of sharing of benefits.

CHM is based on the premise that it is in the interests of mankind that certain areas should not be controlled by a single state. States are not free to act as though they have absolute sovereign authority over the resource, because if all states did so then all of mankind would suffer. Without some sharing of benefits a situation of the ‘tragedy of the commons’ may arise. States would use the particular resource for their own benefit without any desire for the area to be used in the most effective method. In other words, ‘a common heritage regime can provide the efficiency and quality control of cost-internalisation that res communes cannot through the centralised political institution which is lacking from any res communes regime’.76 If states were free to acquire scientific and mineral benefits from the resources for their own use, then CHM would be little more than a permanent ban on the exercise of exclusive sovereign authority.

Further uncertainty lies in Pardo’s notion that there will be equitable sharing of any benefits accrued from the resource. Defining what is equitable can lead to problems. For developing states, equity would act to realise that they are disadvantaged and would therefore compensate them. For developed states, equity would act to recognise the need to provide incentives for the exploitation of a resource and would therefore compensate them. Article 7 of the Sea-Bed Declaration requires exploitation to be undertaken for the benefit of mankind, ‘…taking into particular consideration the interests and needs of the developing countries’.77 CHM undoubtedly recognises mankind’s common interest in not permitting technologically advanced states to be the only parties to benefit from a CHM resource, and as such, provision must be made to make concessions for developing states. The question of how benefits are shared is troublesome, and raises interesting possibilities for the future when the notion of ‘equitable sharing’ will become relevant as exploitation begins to accelerate in CHM designated areas.

4. Peaceful use

It is inherent in any CHM regime that the area designated as being for the common heritage of mankind must only be used for peaceful purposes. While this may create some sideline issues over whether activities such as mining are peaceful,78 the basis of this principle is that military activities in the area must not be tolerated. This requirement is necessary to fill the vacuum left by the absence of any sovereign power. Freedom of movement will be allowed within the designated area, but the creation of military installations and the consequent disposal of hazardous by-products are not permitted. If this was not a feature then there is the potential that states would take military steps to prevent others from threatening their interests. This principle is also justified from an environmental viewpoint, as it is necessary to protect the resource from the environmental hazards of war. It seems that this is the least controversial of all the features of CHM.

5. Transmission of the Heritage to Future Generations

Pardo’s recognition of the importance of environmental protection comes into direct conflict with the fact that exploitation is not banned under a CHM regime. Ian Brownlie interprets CHM as a ‘formula for exploitation, defining who had the right to exploit, rather than a concept for the conservation and preservation of the common heritage’.79 This is in direct contrast with Kiss’s interpretation discussed earlier, which viewed CHM as based on common interest and non-destructive-use.80

A restrictive interpretation of CHM as a method for resource exploitation has been described as unsatisfactorily relegating environmental protection to a limited role.81 The writings of Arvid Pardo, the Sea-Bed Declaration,82 the Moon Treaty83 and the United Nations Convention on the Law of the Sea,84 all reveal environmental protection to be an important part of CHM. However, with developing countries arguing for a regime with exclusive rights to exploit, and developed countries arguing for a regime that does not dramatically alter the traditional freedoms of use, exploitation rather than environmental protection has become the focus of CHM. Taylor views environmental protection as a fundamental feature of CHM, and believes that a resource exploitation interpretation is simply a product of the concept’s development during a time of widening awareness of global inequalities.85 While a holistic approach is needed for CHM, in the current international political system, this is simply not a plausible expectation.

It is important to note that CHM was not created as a method of preserving the environment, but as a method of ensuring that exploitation is undertaken in a controlled, responsible and equitable manner. It was devised as a technique to ensure that developing states would not be sidelined as technology advancements allowed developed states to begin to exploit previously inaccessible common resources. Therefore, while environmental protection provisions will be present in a CHM regime, they will be subjugated to the need to conduct resource exploitation. If, as indicated by Taylor, an exploitation interpretation is simply a product of its time,86 then maybe in the future this will change. However, as CHM developed out of a need to avoid conflict and the tragedy of the commons, it is possible to view its aim as a means to increase access to exploit the global commons while ensuring that such extraction is undertaken in a standardised manner. However desirable it may be, CHM is not primarily an environmental protection mechanism, and to view it as such is to drastically misread the motives of many of the parties involved.

B. The Different Positions on CHM

The inherent uncertainty surrounding such an abstract concept as CHM has been heightened by the vastly different interpretations adopted by developed and developing states. While both developing and developed states have typically viewed common areas as an exploitable resource and CHM as a method of managing the resource, there are issues over property rights and the method by which exploitation and distribution will occur. As a result of this tension the concept has inevitably become politicised, therefore limiting the potential for any widespread acceptance of its content in the future.

From the time Pardo addressed the United Nations General Assembly it quickly became clear that the concept meant different things to different states. For developed states the concept included a proposition that would prove to be a major stumbling block for the acceptance of CHM — that ‘the natural wealth of the planet…should be redistributed according to a collectivistic formula favouring the less developed nations’.87 The notion that developing states should receive preferential treatment over any financial benefits accrued from a particular resource, quickly became entangled in the ideological struggles of the Cold War. The idea of a communal approach to resources was rejected by Western states that were opposed to any system that would limit the sovereign power of states in regard to the unclaimed resource.88

Developing states see CHM as based on the principle of ‘common property’, and accordingly each state has a resulting claim of ownership in the particular common area.89 The concept has become a mechanism whereby states that do not have the technology to exploit the common resources, are able to call for re-allocation of global wealth. It appears that for many developing states any definition of CHM must be based around access and entitlement rights.

By contrast, developed states typically view CHM as an open access commercial regime with few international obligations or regulations.90 It is apparent that developed states hoped that CHM regimes would maximise exploitation of the commons without the need for any unproductive rivalries between states. Commentator Lt Marin Harry notes that many developed states voted for documents such as the Sea-Bed Declaration that incorporated CHM, on the belief that mining the seabed was a ‘freedom of the seas’, and that the term the ‘common heritage of mankind’ would be specifically defined in a later convention.91 Support for the concept quickly waned amongst developed states as they rejected the notion of equitable sharing of benefits, technology transfer, the notion of ‘common property’ and the surrender of sovereignty to international agencies empowered to conduct exploitation of global commons.92

For environmentalists the common heritage of mankind initially promised to be more than a legal concept as it represented a fundamental shift in the way that common areas were viewed. However, this quickly became a romanticised notion as many environmentalists believed that in spite of environmental provisions, that a ‘common heritage regime is based on an exploitation regime’.93 J. Spectar writes that, ‘in the main, both the North and the South saw the commons as an exploitable resource and the CHM principle as the hot ticket to an allocative bonanza’.94 As a result concepts such as ‘world park’ and ‘wilderness park’ have been adopted by environmentalists to replace ‘common heritage’ in debates about the future status of commons such as Antarctica.95

VI. What is the Status of CHM?

Given the disparities in interpretations of CHM, it is necessary to examine whether there has been a corresponding effect on the status of the concept. There is no dispute that the concept exists as a binding provision in the Moon Treaty and UNCLOS III, but what is the nature of its obligation on states? Is it merely a moral obligation and indicative that the treaty in question will define the extent of the legal obligations, or has the concept crystallised to such an extent that when a resource is deemed to be CHM the fundamental features of the concept automatically become binding?

The uncertainty surrounding the nature and content of CHM means that the rights under CHM will only exist when they are individually incorporated into a treaty. This is evidenced by both the Moon Treaty and UNCLOS III, which declare specific areas to be part of CHM, but then go on to spell out what features of CHM will be applied. As illustrated above, both treaties go to some length to show how the features of non-appropriation, shared management, shared benefits, peaceful use, and environmental protection will apply. If CHM automatically created these legal rights then these subsequent provisions would be redundant.

It is submitted that at present CHM confers only moral obligations on states to recognise mankind’s common interest in the maintenance of a particular resource. Rather than entailing specific requirements, CHM should be seen as a label for a collection of provisions that are dependent on a treaty for their legal force. This is not to downplay the importance of CHM in administering important common resources in the future. The concept has a strong intrinsic value in appealing to notions of universality and remains an important method in attempting to overcome the problems created by using state sovereignty as the basis for dealing with common resources. However, to determine the exact nature of the concept the content of each treaty declaring a particular resource to be CHM must be examined.

VII. The Current Framework in Antarctica

This paper will now briefly describe the current framework for administering Antarctica under the Antarctic Treaty System, and will illustrate how CHM has influenced negotiations within the system. Furthermore, an analysis will be conducted into the Treaty System to examine its compatibility with the CHM principles espoused by Pardo and whether the concept should be applied to Antarctica as part of an ongoing global effort to combat climate change. Given the uncertainty surrounding the concept and the potential for an exploitation focus being adopted under a CHM regime, this paper will ultimately show that CHM should not apply to the continent and that the ATS is currently able to meet mankind’s needs in relation to Antarctica.

Due to the fact that it has no indigenous population and there has been no effective occupation and settlement, the legal status of Antarctica has remained controversial. Claims of sovereignty have been asserted by seven nations.96 These claims are based on Antarctica being terra nullius, and also on a contiguity theory whereby geographical proximity is said to grant sovereign privileges to certain states.97 There are obvious problems with these claims98 and as a result they have not been recognised by any other countries, with the United States and Russia reserving the right to make their own claims.99 It was these overlapping sovereignty claims and disputes over recognition of sovereignty that directly led to the Antarctic Treaty.

A. The Antarctic Treaty 1959

The Antarctic Treaty was initially signed by the seven states claiming territory, those states that reserved the right to make a claim and other interested states.100 These original signatories, as well as acceding states that demonstrate an ‘interest in Antarctica by conducting substantial scientific research’101 are known as Antarctic Treaty Consultative Parties (ATCPs). The Antarctic Treaty did not create an international organisation to administer Antarctica, but simply provided for periodic meetings for the ATCPs whereby they could consult each other, exchange information, and make recommendations to their governments. It was this ability to begin the construction of Antarctic law that created the ATS.

Those who accede to the treaty but have no scientific interest in Antarctica are known as non-Consultative Parties. These parties are eligible to attend meetings but have no formal decision-making power. Likewise, non-governmental organisations have been admitted to the process and they also do not have full rights in the decision-making process.102 The requirement that states must conduct substantial scientific research in Antarctica before they may become an ATCP with full voting rights103 has meant that the ATS has a limited membership.104 Despite the requirement of unanimous consent to any regulation by ATCPs,105 the Treaty System has endured to this day, which is a credit to the process of consultation, negotiation and increasing transparency.

The signing of the Antarctic Treaty and a suspension of all existing and new claims of sovereignty meant that negotiations were able to circumvent legal arguments over sovereignty. This was achieved by Article 4 which states that ‘no new claim, or enlargement of an existing claim could be made’ while the treaty was in force. During negotiations over the initial treaty the issue of mining rights was deliberately avoided, as it was believed the contentious issue would prejudice the whole negotiations.106 However, by allocating decision-making power to ATCPs the Treaty made it clear that they had competence to regulate any mining. The Treaty is far from comprehensive but provides the framework for enduring regulation of Antarctica, despite the exclusive nature of its membership.

B. The Rejected Convention on the Regulation of Antarctic Mineral Resource Activities 1988

The Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA) providing for regulated mining of Antarctica was a direct result of fears concerning the adequacy and security of the world’s oil supply. The Convention provided for more environmental protection than any other agreement, yet its regulation of mineral extraction was deemed to place the environment at too much risk.107 The Convention never entered into force after France and Australia indicated their intent not to ratify. Fear that the Convention made resource extraction too profitable an option led to environmental opposition, and eventual rejection of the Convention.

Resource extraction from Antarctica in the future will undoubtedly suffer from massive public opposition, but if a state was set on mining, the resulting breakdown of the ATS could see unregulated and un-checked mining. The defeat of CRAMRA can therefore be viewed as a double-edged sword: the prevention of mining in the foreseeable future, but with the possibility that mining could take place later without the environmental protection provisions present in CRAMRA. The potential for mining in the future remains the single largest threat to the stability of the ATS. However, as will be illustrated, the ATS remains in a stronger position than a CHM regime to balance the often-competing interests of environmental protection and mining.

C. 1991 Madrid Protocol to the Antarctic Treaty

This Protocol was a direct response to growing environmental concerns with the regulation of Antarctica. Without express provisions outlawing mineral extraction, the ATS needed an amendment to protect the environment from the adverse effects of mining. The Protocol goes a step further and imposes a ban on all mineral and fossil fuel prospecting, exploration and development.108 This ban is comprehensive, but can be reviewed after fifty years and changes made if three-quarters of all the ATCPs at the initial signing agree.109 Notably, under Article 25(6), if an amendment allowing mining has not been ratified by all the ATCPs then any state may withdraw from the Protocol and begin mining.

The Madrid Protocol makes it clear that the objective is the ‘comprehensive protection of the Antarctic environment and dependent and associated ecosystems’.110 To ensure this, Antarctica is declared a natural reserve devoted to peace and science.111 While the Protocol undoubtedly grew out of the failed CRAMRA, Duncan French argues that it is wrong to presume that this is the only reason for its adoption.112 Other reasons include the need to address the fragmented nature of environmental protection in Antarctica, the impact that environmental organisations were having domestically, and recognition that there was widespread criticism of the ATS in the United Nations General Assembly.113 Without the prospect of an allocation of mineral resources in the near future, criticism of the ATS subsided.

VIII. CRAMRA & the Madrid Protocol: Negotiations in the Shadow of CHM

In the period before the negotiation of CRAMRA, developing states that were effectively excluded from the bargaining table as the mineral exploitation regime was fashioned challenged the legitimacy of the ATS. The conclusion of UNCLOS III a few years earlier led to calls by many for CHM to be extended to the Antarctic continent.114 In this sense, the adoption of the Madrid Protocol was undertaken in the shadow of the debate over the content of the common heritage of mankind. Both ATCPs and environmentalists were keen to avoid any application of the concept to Antarctica, but both for very different reasons. The ATCPs, many of who were unsatisfied with CHM envisaged by UNCLOS III, resisted calls from the United Nations General Assembly and tried to push through the mining regime.115 Although CRAMRA was ultimately discarded, the Convention was indicative of the fact that many states were disillusioned with the principles of CHM, and the ideas of benefit sharing. The failure of CRAMRA and the rise of environmental non-governmental organisations (NGOs) led to the Madrid Protocol and increased protection for the environment.

Environmentalists were not only wary of a mineral regime in the form of CRAMRA, but also of the ATS including some form of CHM. Erin Clancy observes that, ‘the focus of CHM is not on how states can work together to protect these areas, but how states can divide the profits of exploitation’.116 This sums up the concerns that under a CHM regime there is incentive to exploit the resource rather than to conserve it. Determined to avoid the exploitation-focussed interpretation of the seabed, environmentalists instead turned away from CHM towards concepts such as a ‘world park,’ which were essentially based on CHM without resource exploitation and environmental degradation.117 Joyner wrote:

It is also important to realize that this common heritage regime is…an exploitation regime, one committed to develop Antarctic resources. The implications of this arrangement appear environmentally unsettling, to say the least. While noble in its purpose, common heritage applied to Antarctica could be environmentally detrimental.118

For environmentalists, anything less than a ban on mining in Antarctica was unacceptable. The momentum behind calls for changes to the CRAMRA moved away from developing states towards the environmental lobby, and protection of the environment was made the key aspect of the Madrid Protocol.

As mentioned, disillusionment with CHM formulated under UNCLOS III is a major reason why the concept was not adopted in Antarctica after the disintegration of the CRAMRA. Another key factor would appear to be a willingness to preserve the environment that is not present to the same extent with the seabed. Protection of the Antarctic environment is presently one of the paramount considerations in the administration of the continent, and NGO pressure during the CRAMRA negotiations brought this to the forefront. Environmentalists were generally united in their belief that the continent was of more value to mankind intact than as a source of resources.119

There was never the same furore over proposed mining under UNCLOS III, which is due to the unique nature of Antarctica rather than any lack of organised global environmental opposition against mining the seabed. Spectar comments on this point: ‘[D]ue to the commonly held belief that ocean mining had minimal environmental impact on human habitat, it appears that environmentalists preferred ocean mining over land mining’.120 However, this cannot be the only explanation for the vastly different responses. It is the pristine scenery of the continent, the vital part that it plays in the earth’s ecosystem, and the way it remains as the last global vestige of unspoilt wilderness that perhaps all contribute to the environmental concerns over the continent.

While environmental concerns are heightened in dealings with Antarctica, it would be naïve to imagine that concern for the environment is the overriding concern of many ATCPs. The fact is that the technological and logistical problems associated with mining in Antarctica were nowhere near being resolved at the time of the Madrid Protocol. Therefore, it was not a significant concession for states to agree to refrain from mining, given that mining in the foreseeable future was not a viable option.

The Antarctic continental shelf is uncommonly deep,121 thick ice would make exploitation difficult, icebergs mean that off-shore drilling and shipping would be dangerous, and there is also a lack of infrastructure and a ready labour supply. Although environmental concerns have been important, the lack of technological advancement to make mining in Antarctica a cost-effective option appears to be a major motivating factor behind countries being willing to concede their mining claims for fifty years. If the relatively high extraction costs were not relevant and fears about environmental damage were the sole concern then in all likelihood there would have been a ban on mining in perpetuity.

The Madrid Protocol does not permanently ban mining, but essentially imposes a fifty-year moratorium. At the insistence of the United States, Article 25(6) introduces a ‘walkout’ clause whereby if an amendment allowing mining has not been ratified by all twenty-six ATCPs who signed the Protocol, then any state may withdraw from the Protocol and mining may begin two years later. This insertion was due to concern with being subject to a veto by a single ATCP who might not want mining. Ironically, enacted in fear of a single country holding too much power, Article 25(6) directly empowers a single country to undermine the Treaty System by withdrawing from the Protocol and initiating unregulated mining.

There is unwillingness on the part of states to bind themselves for an uncertain future, especially given concerns over the durableness of current fossil fuel supplies. Rather than viewing the Madrid Protocol as espousing a common interest in the protection of the environment, the Protocol is a temporary ban on exploiting currently inaccessible resources. The concern remains that Antarctica ‘is too valuable to the health of the planet and our understanding of how the planet works to take a short-term approach to securing environmental protection and species conservation’.122

IX. CHM and Antarctica

A. Compatibility of the ATS and CHM

If a political willingness existed amongst ATCPs to make Antarctica part of the common heritage of mankind then theoretically there would be nothing to prevent them from doing so. The Madrid Protocol shows how concerns for the environment could be incorporated within the framework of the treaty system, but it is equally possible for such concerns to be addressed outside of the ATS if Antarctica were deemed to be CHM.

The common heritage of mankind can be viewed a contractual term, and at the present stage of international law it is dependent on the context of the treaty for its substance. Therefore, any move to apply CHM to Antarctica would require a treaty to do so. Theoretically, such a treaty could be signed by a small number of states, and not necessarily be inclusive of the ATCPs who may insist on continued governance under the ATS. However, in practical terms such a limited membership would be similar to the ineffectual Moon Treaty, and would have little impact on the day-to-day affairs with the continent. For CHM to exist as a viable means of administering Antarctica would require recognition by the ATCPs. Without their support for the concept, any attempts to impose CHM will undoubtedly fail.

Dedicating Antarctica as part of CHM would drastically alter the present ATS, but would not necessarily require the repudiation of the entire ATS. This paper will show that although changes would have to be made, CHM is not fundamentally incompatible with the Treaty System. Any move towards the common heritage of mankind ‘should grow out of the current Antarctic Treaty, incorporating its more successful provisions’.123

While formal recognition of CHM in a treaty would be necessary for it to become legally binding on the states involved, it is possible that the current ATS espouses many of the features of CHM. Joyner agrees with the view that ‘the fundamental tenets of CHM are preserved in the constellation of agreements comprising the Antarctic Treaty System’.124 If true, then this may lessen any need for codification of the concept for Antarctica. It is now necessary to examine how consistent the ATS is with the fundamental features of CHM.

1. Non-exclusive Use

As established earlier, ‘non-exclusive use’ rather than non-appropriation of territory should be seen as an essential element of CHM. This is because CHM is designed to minimise the destructive use of a resource that could occur if one state had exclusive control over the resource. In this respect the ATS can be seen as consistent with this feature of CHM, despite the fact that there are seven claims of sovereignty over parts of Antarctica. If Antarctica was deemed to be CHM then although the withdrawal of claims would help to reiterate the continent’s status as part of the common heritage of mankind, it is not essential to the establishment of the regime. Unlikely as it may be, if the claims of sovereignty were enforced in the future, then a CHM regime could still be applicable if the states were willing to limit their sovereignty as required under a CHM regime.

In the view of Tenenbaum, it is possible to minimise the importance of the claims because ‘as the Antarctic Treaty System moves toward further internationalisation, the claims become increasingly meaningless in practice’.125 While this is undoubtedly true, it is only because Article 4 of the Antarctic Treaty has suspended the application of the claims, so in reality the assertions will have lost none of their legal force. Behind Tenenbaum’s reasoning is the notion that as the ATS endures, the practical reality is that states will not enforce their claims due to a desire to stay within the framework. It is this desire to avoid conflict and to be part of a consistent policy towards the maintenance of Antarctica that will motivate the claimants not to enforce their claims.

At present, even though Antarctica is not a CHM regime, the use of Antarctica is consistent with the notion of non-exclusive use. The increasing internationalisation of the continent, the willingness to suspend sovereign claims, and the co-operation between states within the ATS all indicate a desire to ensure that Antarctica is not divided by states exercising exclusive sovereign authority. The issue of sovereignty claims in Antarctica is contentious. It is possible to take the view that the claims were shelved because resource exploration was not a concern of the signatories at the time of the Antarctic Treaty, and indeed the Treaty made no provision for mining. However, the possible breakdown of the ATS or the introduction of mining may see the return of territorial claims. Indeed one commentator claims ‘leaving the issue [of sovereignty] unresolved is tantamount to sowing the seeds of international conflict for future generations’.126

The problems that may be faced in the future by the re-emergence of sovereignty claims are not easily resolved. Only international expectations of a regime that does not allow states to act unilaterally in dealings with the continent can prevent the issue of sovereignty from becoming divisive in the future. In this sense, the ATS can be said to incorporate the fundamental feature of non-exclusive use from CHM.

2. Shared Management

As has been established, the rationale behind shared management under a CHM regime is that mankind has a common interest in maintaining a consistent policy in regards to the particular resource, and that shared management is an effective means of lessening the risk of the tragedy of the commons. The ATS incorporates these principles in an effort to promote co-operation and consensus within the framework. Floren writes, ‘meetings, consultations, measures, recommendations, conventions: these are the procedural elements for successful maintenance of the ATS’.127 At present 45 nations are represented within the ATS, and with the need for unanimity amongst the 27 ATCPs before measures become binding,128 it is remarkable that the ATS continues to endure.

While there is shared management within the ATS, the requirement that states must conduct ‘substantial scientific research’129 in Antarctica before they can become ATCPs means that many developing states will not have voting rights within the ATS. For many states the financial cost of meeting this criteria will be too high. For example, Germany estimated that the cost of establishing its research station was US$100m.130 In this respect the ATS can be viewed as an ‘exclusive club’.131 While it may be possible for developing states to question the legitimacy of the ATS, the shared management that is currently in practice within the ATS fits the requirements of CHM. Under CHM it is not necessary to share the management of a particular resource with the entire international community, but to manage the resource within a significantly large enough group to ensure that the common interests of mankind are not subjugated to the interests of a state or group of states.

But in the case of the ATS, those states outside of the framework would argue that the ATS is simply a mechanism for ATCPs to promote their own interests in Antarctica. This is a compelling point, and undoubtedly the ATCPs will use the Treaty System to advance their own needs. However, at present there is no evidence that the shared management under the ATS has been used to directly advance the interests of member states to the detriment of the common interests of mankind. However, if the issue of commercial resource exploitation should arise in the future, there is the very real possibility that the ATS will develop into an exploitation regime and neglect mankind’s common interests in the protection of the Antarctic environment.

3. Sharing of Benefits

The notion of a sharing of benefits that is inherent in CHM is also present to a limited extent within the ATS. Although mining is currently prohibited under the Madrid Protocol, states are under a duty to exchange scientific observations and results to the greatest extent possible.132 The freedom and encouragement of scientific research can be seen as the main thrust of the Treaty System,133 and the sharing of benefits amongst member states of this research is consistent with CHM.

Although there is a sharing of scientific benefits under the ATS, the fact that there are no benefits to be shared from mining has meant that there is not the same clamour from developing states for a CHM regime as there was in the 1980s. The sharing of scientific benefits may be extremely valuable but it would not hold the same lure for developing states as access to mineral resources. It is submitted that if the ATS incorporated a permanent ban on mining then the idea of applying CHM to Antarctica would all but vanish. This is because the resource-exploitation interpretation favoured by developing states would be rendered irrelevant by the fact that they would not be ‘missing out on their piece of the pie’.

The scientific research being conducted in Antarctica is invaluable, and the encouragement of sharing of research further illustrates the desire for the ATS to be based on co-operation and an avoidance of conflict. The sharing of scientific ideas and information regarding programmes can be seen as consistent with the CHM notion that the resource is too important to be degraded by states advancing their own interests through exclusive exploitation.

4. Peaceful Use

There is no doubt that the ATS administers Antarctica in a manner that is consistent with the common heritage principle of peaceful use of a resource. Article 1 of the Antarctic Treaty establishes that the continent shall be used for peaceful purposes only. Therefore, applying CHM to Antarctica would not add any new requirements in this area. It is interesting to note that commentator Jonathan Weiss argues that ‘peaceful purposes’ under Article 1 should be interpreted in the context of the entire ATS, and given the focus on environmental protection, only activities that are peaceful to the environment should be allowed.134 Such an approach ignores the obvious fact that by insisting on a limited moratorium on mining, states have deliberately reserved the right to start mining in the future. It is more realistic to realise that although it is desirable to prevent mining and subsequent damage to the environment, the most appropriate method of achieving such an aim would be through political consensus.

5. Transmission to Future Generations

Under the Madrid Protocol, ATCPs are required to treat Antarctica as part of a ‘natural reserve devoted to peace and science’.135 Numerous environmental provisions supplement this principled approach to Antarctica. Annex I of the Protocol requires an Environmental Impact Assessment (EIA) to be conducted during the planning of any activity as a means of assessing potential environmental harm. Annex III covers the disposal of waste, such as rubbish, but somewhat controversially allows liquid wastes to be dumped into the sea.136 Similarly, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) protects the environment by placing limits on catches and by assessing the impacts of activities on the marine environment.

There is no doubt that at present the ATS represents a very thorough framework for protecting the environment from local activities and attempting to ensure the continent’s transmission to future generations. These aims are consistent with the environmental principles espoused under CHM and are arguably even more effective than CHM given the current moratorium on mining in Antarctica. However, it is unlikely that the ATS will ever be able to provide the structure necessary to protect Antarctica from global threats such as climate change. While CHM may also not be an appropriate tool to combat climate change, it provides the holistic approach necessary to recognise the effects that human activities throughout the world are having on Antarctica.

6. Conclusion

The manner in which the ‘three principal values of the ATS — peace, science and environmental protection’137 have been implemented are consistent with many of the ideals behind Pardo’s concept of CHM. The implication of the similarities between the ATS and CHM is that there may be nothing to be gained from declaring Antarctica as part of the common heritage of mankind, and too much to place at risk. This dilemma will be discussed below.

Although the ATS may contain the fundamental features of the common heritage of mankind, it would be going to far to claim that the concept therefore applies to Antarctica. The fact remains that the current system is exclusive, and although it is becoming increasingly transparent, it is not being administered to fulfil the common interests of mankind. While a CHM regime may not be desirable to administer the continent, it must be accepted that the current management system has the potential to allow benefits to accrue to its small club of members by reserving to itself the possibility of allowing mineral exploitation at a later date. Despite laudable environmental objectives, it would be hypocritical for states to claim that simply by fulfilling many of the features of CHM that the ATS is acting in the common interests of mankind.

B. Is CHM Customary International Law in Antarctica?

For completeness, this paper will address whether CHM applies to Antarctica by virtue of being part of customary international law. When issues over the administration of Antarctica were brought before the United Nations in 1983, many developing states argued that CHM should apply to Antarctica, while some maintained that it already applied.138 The implication of CHM being applicable to Antarctica is that there would be the potential to dramatically alter the existing treaty system, re-evaluate the moratorium on mining, and importantly, the possibility of alleviating global warming by requiring states to have regard to the environmental protection of Antarctica. However, as will be shown, it would be very difficult to show that CHM is customary international law in Antarctica.

International law recognises that state sovereignty is the basis of state relations, and tries to create a framework whereby states are only bound by what they consent to. In this regard, party states to the Moon Treaty and UNCLOS III are bound to recognise that those respective areas are part of the common heritage of mankind due to their acceptance of the treaties. However, over time it is possible for state practice to create a legally binding rule of international law.139 Customary international law will emerge if there is consistent state practice coupled with opinio juris, a belief that such conduct is legally required.140

Unlike treaties, which are only binding on parties to them, customary international law, once established, is universally binding. However, there is provision for states to be exempt from customary international law. As was evidenced in United Kingdom v Norway,141 a state that is a persistent objector to a customary rule while it is being developed is not bound by the application of the rule. Therefore, the creation and maintenance of the ATS prior to the modern day development of CHM would be enough to satisfy the requirements of objection to the application of the concept to the continent. This is because the member states of the ATS have done everything in their power to exclude a universal system, while reserving to themselves the right to administer the continent.

While ATS party states would be deemed to be persistent objectors to the application of CHM to Antarctica, the common heritage of mankind would also not be applicable to Antarctica due to the uncertainty that is inherent in the concept. It is undeniable that the conflict over interpretations has limited the status of CHM. It is so politicised and subject to such divisive interpretations that the whole concept is entirely unsuitable to be considered customary international law in relation to any resource.

The uncertainty over the content of CHM means that even if there is the required level of state practice to be able to definitively assert that states were acting in a particular manner, there would be widespread debate over the content of CHM, and whether such actions incorporated each and every one of the requirements of CHM. Instead the concept should be regarded as a contractual term to be used in a treaty that explicitly states which features are to be relevant to the particular resource. Each of its features are easily identifiable, and as such they can become part of customary international law, but the ambiguity surrounding the concept means that it is not a satisfactory object of customary international law. The concept cannot be extended beyond the regimes that specifically incorporate it.

It is certainly possible in the future that individual aspects of CHM could evolve into customary international law, but at present there is not enough consensus on the nature of CHM to be able to say that the entire concept should be applicable. It is possible for example that the peaceful use of Antarctica could become legally binding on all states under international law. The important distinction to make is that it will only ever be individual features of CHM, rather than the concept as a whole that will be able to satisfy the conditions of customary international law. At present the concept of the common heritage of mankind, even when it is incorporated into a treaty, confers no legal rights save to the extent that its individual features are also included.

C. Should CHM be Applied to Antarctica?

The administration of Antarctica is of great international importance, not only due to its status as a symbol of a dwindling wilderness, but also for its importance to scientific research, the potential for future mineral extraction and the continent’s role in regulating the earth’s climate.142 Coupled with the universal nature of threats posed to Antarctica by global warming, it becomes possible to question the legitimacy of administering the continent under the ATS. In light of these concerns, it is necessary to examine the possibility and desirability of altering the ATS to take into account mankind’s common interest in Antarctica. Any such recommendation betrays an immediate bias, whether it is internationalist, environmentalist or commercially driven. Recognising these biases, it is submitted that despite the flaws of the ATS, it will be shown that it would be more problematic to apply CHM to the continent.

As has been established, for Antarctica to be deemed to be part of CHM it would be necessary for a treaty to be created outlining which features of the concept would be applicable to the continent. Presumably such a treaty would incorporate environmental protection provisions similar to those included in the Moon Treaty and UNCLOS III.143 It is therefore possible that provisions promoting the protection of the environment could be read as obliging states to take steps to ensure that their actions were not contributing to the degradation of Antarctica through global warming. It is interesting to note that at present under the Madrid Protocol states are only required to consider the impact of their actions on the environment when activities are carried out within the Antarctic Treaty area.144 Any extension of the obligation to take into account the environmental protection of Antarctica would undoubtedly be beneficial for the preservation of the continent, and subsequently for those states threatened by rising sea levels. While this could be an important method in attempting to combat climate change, it is important to note that the inclusion of any such protection provision would certainly be very contentious.

Another reason why administering Antarctica as part of CHM may help to combat climate change is the possibility that it may raise greater awareness of the damage to Antarctica and the threats posed to low-lying states. While declaring Antarctica to be CHM would certainly have the short-term effect of focussing attention on the continent, it is doubtful whether it would produce significant long-term benefits in regards to making states more aware of the effects of global warming. At present there is sufficient awareness of the threats posed to Antarctica and low-lying states, and it remains a question of political will as to whether steps will be taken to try to alleviate the problem.

There is also the prospect that applying CHM to Antarctica and allowing more states to become involved in the administration of the continent may engender a new sense of responsibility for the continent and influence attitudes towards international climate change initiatives. While it may be naïve to imagine that world leaders would be prepared to go further than they are now to limit global warming, simply due to a new-found sense of responsibility, there is no denying that CHM can be a powerful moral tool. However, it is likely that any such change in attitude would be symbolic rather than substantive. At present the five largest greenhouse gas emitters,145 the United States, China, Russia, Japan and India are all ATCPs. Coupled with the fact that there are 45 signatories to the Antarctic Treaty146 one would have to question whether simply having responsibility for the continent corresponds with an obligation to take all possible steps to protect it.

While focussing on Antarctica is very important in highlighting the effect of climate change, making the continent part of CHM may shift attention away from other areas of concern. Areas such as the Greenland ice sheet and mid-latitude glaciers are currently more likely to contribute to rising sea levels in the near future.147 As such it may be negligent to apply the significant resources needed to create a CHM regime if it diverted attention away from areas at greater risk, and attempts to combat the actual causes of climate change. This is even more so when it is far from certain whether a CHM regime would be effective as a tool in combating global warming. Climate change, and the threats posed to Antarctica are global problems, and the response has to be truly global. Any change in the administration of Antarctica may have substantial local effects, but the consequences beyond the region are impossible to predict.

The potential to combat climate change is only one of the possible side effects of establishing a CHM regime in Antarctica. Therefore, before making any proposal about the future status of Antarctica it is necessary to examine whether there are other potential benefits of administering Antarctica as part of CHM. These other benefits, coupled with the slight possibility that a CHM regime may encourage states to take further steps to halt global warming, could lend new weight to a claim for Antarctica to be declared part of CHM.

Criticism of the legitimacy of the Treaty System has primarily focussed on its perceived exclusivity. However, concern with the status quo has abated since the 1980s when the ATS was described as a form of ‘international apartheid’ and treated as a vestige of colonialism.148 In the last 20 years, membership of the ATS has dramatically increased. Currently there are 27 ATCPs who have voting rights,149 compared with only 14 ATCPs in 1983.150 Last year Malaysia, once the fiercest critic of the ATS in the UN,151 indicated its intent to become a party to the Antarctic Treaty.152 Without a doubt the questions over the legitimacy of the ATS has lessened as more states, and especially developing states, accede to the Treaty. As the ATS becomes more open, criticisms of its exclusivity will naturally decline, as will calls for CHM to be applied to the continent.

As has been illustrated, the shared management under the ATS is consistent with CHM to the extent that the ATS is not distributing mineral revenues. Therefore, there is no need to apply CHM to the continent if the only aim is to increase participation in the administration of the continent. This is occurring slowly over time as more and more countries join the system that has managed to effectively administer Antarctica over the last 40 years. One of the main aims of the ATS is to provide stability to the administration of the continent and to simply survive.153 Such an aim is vitally important in dealing with such an important global resource, and at present applying CHM to the continent carries inherent risks of upheaval and uncertainty.

As the ATCPs are only agreeing to regulate Antarctica in relation to each other there is no legal problem with the ATS. However, their authority can begin to be questioned when the issue of mineral extraction is contemplated and it becomes apparent that the ATCPs are determining the disposition of resources. The issue of resource exploitation is the major reason why developing states argued for CHM during the 1980s, and the major reason why environmentalists shunned the concept. This issue has dissolved with the adoption of the Madrid Protocol, but it promises to be a thorn in the side of the ATS.

Although the ATS is currently providing a successful base for scientific development, the issue of mining is going to inevitably arise again in the future. One commentator has stated:

There can be little doubt that minerals are available in Antarctica, and it is therefore an artifice to attempt to ignore the issue. When minerals are eventually discovered, the Protocol will prove to be fundamentally unrealistic, and its chances of survival will be virtually nil.154

Although the Protocol prevents mining until at least 2041, the future after that is unclear. Depending on environmental expectations and the availability of traditional sources of fuel, there exists the very real possibility of a ‘gold rush’ as states vie for strategic resources and in the process threaten the foundation of the Treaty System. If the ‘walk-out’ option were exercised by a single state, that state would be free to begin mining as long as they adhered to the principles of the original Antarctic Treaty and subsequent conventions. Such a decision by one country would unravel the ATS as states would be reluctant to commit themselves to another legally binding convention prohibiting mining if it was not applicable to all.

Therefore, the issue becomes whether to adopt a short-term approach and recognise that the ATS is currently successful in meeting the needs of its members, or a long-term approach and recognise that the issue of mining threatens to not only divide the ATCPs but also the ATS from the rest of the world. Given the similarities between the ATS and a CHM regime, there may be little to be gained from adopting CHM. However, if mining was to be undertaken in the future then a CHM regime may result in a much-needed democratisation of management and increased legitimacy. It is also possible to argue that if mining on the continent is inevitable then it might be prudent to adopt a CHM regime in the near future because countries may be less willing to make sacrifices once advances in technology make mining profitable.

If mining proceeds in the future it is possible that a new treaty would be adopted declaring the continent to be part of CHM in order to provide for a more equitable distribution of resources. It would require ATCPs to be willing to sacrifice their current privileged position, adopt a holistic approach to the continent, and more particularly be willing to share some of the benefits derived from the continent. However, such an approach should not be taken lightly given the likelihood of a resource-exploitation approach to CHM. As mentioned earlier, such a restrictive interpretation promotes exploitation to the detriment of environmental protection. While mineral exploitation and environmental protection are not necessarily mutually exclusive, an interpretation of CHM that increases access to resources and promotes the sharing of benefits has the potential to relegate the role of environmental protection in Antarctica.

Environmental protection of the continent and the freedom of scientific research must be the overriding concern, rather than placating any desire for resource exploitation. To some the issue of whether to allow resource exploitation is a litmus test of whether world leaders are prepared to stop the spread of global environmental destruction,155 as the very nature of Antarctica means that the detrimental effects of mining will not be localised.156 There is the very real possibility that mining in Antarctica could have substantial effects on the Antarctic ice sheet, and exacerbate rising sea levels. Given the importance of the continent to stable sea levels, its central role in determining the Earth’s climate and oceanic circulation,157 and the undeniable impact that mining in Antarctica will have on marine life and scientific research at Antarctica, it seems too much of a risk to submit Antarctica to CHM and the potential of a joint-property interpretation. Such an interpretation, which inaccurately portrays the right to the use the resource as a property right, would run the risk of allowing Antarctica to become subject to an exploitation focussed regime.

Currently there is not the same impetus for changes to the ATS as there was during the 1980s, but as the threats of global warming to Antarctica and low-lying states become a reality, this may change. However, even so it would be irresponsible to apply CHM to Antarctica given the uncertain nature of the concept. At present the ATS espouses many of the features identified by Pardo as fundamental to CHM and it is not necessary to take this a step further and declare Antarctica to be CHM. Despite concerns about the exclusivity of the ATS, if environmental protection is desired then the ATS offers the best chance for a long-lasting and consistent approach to the continent. If mining had to be undertaken in the future then it is more than likely that in the absence of a clearer articulation of the principles of CHM, environmentalists would prefer mining to be rigidly proscribed under the ATS.158 The results of any attempt to administer Antarctica as part of CHM in an effort to limit climate change are debateable, and in light of the aforementioned problems associated with applying the concept to the continent it is submitted that the concept is unsuitable to be applied to Antarctica.

X. Conclusion

The emergence of CHM as a challenge to the traditional methods of state sovereignty and res communes in administering important resources threatened to transform the way that global resources were viewed. However, notions of universality and the common interests of mankind have been subjugated to interpretations of CHM that promote state-centric approaches to resource exploitation. This paper has illustrated the uncertainties surrounding CHM, which are primarily a result of states pursuing their own interests. CHM has become politicised and although it remains a symbolic recognition that a resource is inherently valuable to all of mankind, the conflict over its content means that there is the very real risk that it will not be expanded to apply to further resources.

Arvid Pardo’s version of CHM identifies five core aspects: non-exclusive use, shared management, shared benefits, peaceful use and environmental protection to ensure transmission to future generations. This paper has examined these ideas in light of scholarly understanding and the implementation of CHM in treaty regimes to conceive a modern understanding of the concept. CHM is merely a label for this bundle of features and confers no legal benefits by itself, but simply imposes moral obligations on parties to a treaty to recognise mankind’s common interest in the resource. It does not need a fixed definition because each particular treaty will specify to what extent the typical features of CHM will apply. As has been illustrated, the difficulties in striking a delicate balance between development, resource exploitation and environmental preservation have limited the status of CHM.

Global warming promises to be a very serious threat for the twenty-first century and beyond, and the protection of Antarctica must take on a new light. While previous concerns may have focussed on the localised effects of human contact with Antarctica, it is necessary to recognise the truly global nature of mankind’s contact with the continent. However, as this paper has shown, this should not be achieved by declaring Antarctica to be CHM. While environmental provisions of a possible Antarctic CHM treaty may require states to consider the effects of their conduct on the continent, it is unlikely that this alone is enough to make states alter the positions they have now on climate change initiatives. Furthermore, given the importance of Antarctica and the fact that the ATS incorporates many of the features of CHM, establishing a CHM regime in Antarctica would place at risk many of the achievements of the ATS to date for relatively little gain. Protection of the environment must remain the focus of any Antarctic administration, and in light of the inability of CHM to adequately promote environmental protection CHM is simply not a viable alternative.

* Jeffrey Loan, LLB (Hons) BA, tutor in law and LLM candidate at Victoria University of Wellington.

1 Duncan French, ‘Sustainable Development and the 1991 Madrid Protocol to the 1959 Antarctic Treaty: The Primacy of Protection in a Particularly Sensitive Environment’ (1999) 2 Journal of International Wildlife Law & Policy 291, 291.

2 J A Church et al, ‘Changes in Sea Level’ in J Houghton et al (eds), Climate Change 2001: The Scientific Basis - Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change, J Houghton et al (2001) [].

3 United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 31 International Legal Materials 848, preamble, (entered into force 21 March 1994) (‘UNFCCC’).

4 Ibid Art 2, and referred to in the Kyoto Protocol to the UNFCCC opened for signature 16 March 1998, 37 International Legal Materials 22, preamble (Kyoto Protocol).

5 Matthew Vespa, ‘Climate Change 2001: Kyoto at Bonn and Marrakech’ (2002) 29 Ecology Law Quarterly 395, 419.

6 UNFCCC, above n3, article 4(8).

7 ‘The Loss of Ice Shelves from the Antarctic Peninsula’ (2000) British Antarctic Survey, <> .

8 ‘Larsen B Ice Shelf Collapses in Antarctica’ (18 March 2002) National Snow and Ice Data Center, <> .

9 This is because any melting of an ice shelf would simply displace the volume of the ice shelf floating on the water. It is the changes to the ‘grounded’ ice sheet that affects sea levels.

10 ‘Larsen B Ice Shelf Collapses in Antarctica’ above n8.

11 ‘The Antarctic Ice Sheet and Rising Sea Levels’ (2000) British Antarctic Survey, <> .

12 Church et al, above n2, [].

13 ‘Review of the State of the Environment of the Pacific Islands’ Ministerial Conference on Environment and Development (Kitakyushu, Japan, 31 August - 5 September 2000) <> .

14 John E Hay et al, Climate Variability and Change and Sea-level Rise in the Pacific Islands Region: A Resource Book for Policy and Decision Makers, Educators and other Stakeholders (July 2002) viii.

15 Prue Taylor, An Ecological Approach to International Law: Responding to Challenges of Climate Change, (1998) 270.

16 Arcangelo Travaglini, ‘Reconciling Natural Law and Legal Positivism in the Deep Seabed Mining Provisions of the Convention on the Law of the Sea’ (2001) 15 Temple International and Comparative Law Journal 313, 317.

17 Travaglini, above n16, 317.

18 Garrett Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243.

19 Ibid 1244.

20 Elinor Ostrom et al, ‘Revisiting the Commons: Local Lessons, Global Challenges’ (1999) 284 Science 278, 278.

21 Susan Cox, ‘No Tragedy on the Commons’ (1985) 7 Environmental Ethics 49, 60, argues that in fact the English Commons were not open to all, and that they had been successfully managed for hundreds of years.

22 Ostrom et al, above n20, 281.

23 Eric Freyfogle, ‘The Tragedy of Fragmentation’ (2002) 36 Valparaiso University Law Review 307, 324.

24 Erin Clancy, ‘The Tragedy of the Global Commons’ (1998) 5 Indiana Journal of Global Legal Studies 601, 616.

25 For analysis of sustainable development in light of the tragedy of the commons, see Ibid.

26 For example Rudolph Arnold ‘The Common Heritage of Mankind as a Legal Concept’ (1975) 9 International Lawyer 153, 155.

27 Taylor, above n15, 270.

28 Arvid Pardo and C Christol, ‘The Common Interest: Tension Between the Whole of the Parts’ in MacDonald and Johnston (eds) The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (1983) 271.

29 Arvid Pardo, ‘Declaration and Treaty Concerning the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and of the Ocean Floor, Underlying the Seas Beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind’ U.N. Doc. A/C.1/952 (17 August 1967).

30 Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, U.N. Doc A/C1/544 (1970), art. 7 (Sea-Bed Declaration).

31 Arvid Pardo ‘The Origins of the 1967 Malta Initiative’ (Fall 1993) 9(2) International Insights 65, 67.

32 Taylor, above n15, 262.

33 Martin Harry, ‘The Deep Seabed: The Common Heritage of Mankind or Arena for Unilateral Exploitation’ (1992) 40 Naval Law Review 207, 210.

34 Pardo, ‘Declaration and Treaty Concerning the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and of the Ocean Floor’ above n29.

35 Travaglini, above n16, 323.

36 Treaty Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, GA Res 2222, 21 UN GAOR (1966) (Outer Space Treaty).

37 Detlev Wolter, ‘The Peaceful Purpose Standard of the Common Heritage of Mankind Principle in Outer Space Law’ (1985) 9 ASILS International Law Journal 117, 119.

38 Tom Brandt, ‘The Common Heritage of Mankind: Present Directions, Future Choices’ LLM Paper (Victoria University of Wellington, 1988) 17.

39 Sea-Bed Declaration, above n30, Art 1.

40 Harry, above n33, 210.

41 Sea-Bed Declaration, above n30, Art 2.

42 Ibid Art 4.

43 Ibid Art 9.

44 Ibid Art 11.

45 Ibid Art 8.

46 Ibid Art 7.

47 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, [1986] ATS 14, (entered into force 11 July 1984) (Moon Treaty).

48 Ibid Art. 11.

49 Ibid Art. 3.

50 Ibid Art 11.

51 In fact as of March 2004 only ten states had ratified the treaty and a further five had signed it.

52 N Jasentuliyana, ‘Article I of the Outer Space Treaty Revisited’ (1989) 17 Journal of Space Law 129, 129.

53 United Nations Convention on the Law of the Sea, 10 December 1982, 33 International Legal Materials 1309 (entered into force 16 November 1994) (UNCLOS III).

54 Ibid Art 152.

55 Ibid Art 148.

56 Travaglini, above n16, 328.

57 UNCLOS III, above n53, Art 153.

58 Harry, above n33, 213.

59 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994) 33 International Legal Materials 1309.

60 Travaglini, above n16, 328.

61 Pardo, ‘The Common Interest’ above n28, 263 (emphasis added).

62 Taylor, above n15, 272.

63 Alexandre-Charles Kiss, ‘The Common Heritage of Mankind: Utopia or Reality?’ (1985) 40 International Journal 423, 431.

64 Ibid, 433.

65 Taylor, above n15, 275.

66 Ibid 275.

67 Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law (1998) 85.

68 Christopher Joyner, ‘Book Review: The Concept of the Common Heritage of Mankind in International Law’ (1999) 13 Emory International Law Review 615, 622.

69 Anne Dowling, ‘“Un-Locke-ing” a “Just Right” Environmental Regime: Overcoming the Three Bears of International Environmentalism: Sovereignty, Locke, and Compensation’ (2002) 26 William and Mary Environmental Law & Policy Review 891, 911.

70 Baslar, above n67, 85.

71 Travaglini, above n16, 329.

72 UNCLOS III, above n53, Art 153.

73 Travaglini, above n16, 314.

74 Pardo, ‘The Common Interest’ above n28, 263.

75 Ellen Tenenbaum, ‘A World Park in Antarctica: The Common Heritage of Mankind’ (1990) 10 Virginia Environmental Law Journal 109, 115.

76 Ibid 115.

77 Sea-Bed Declaration, above n30, Art 7.

78 See for example Jonathan Weiss, ‘The Balance of Nature and Human Needs in Antarctica: The Legality of Mining’ (1995) 999 Temple International & Comparative Law Journal 387.

79 Ian Brownlie, ‘Protection of the Global Heritage’ (1981) American Society of International Law Proceedings, 52, 53.

80 Kiss, above n63, 433.

81 Taylor, above n15, 268.

82 Sea-Bed Declaration, above n30, Art 11.

83 Moon Treaty, above n47, Art. 11.

84 UNCLOS III, above n53, Art 145.

85 Taylor, above n15, 268.

86 Ibid 268.

87 Travaglini, above n16, 322.

88 Ibid 323.

89 J M Spectar, ‘Saving the Ice Princess: NGOs, Antarctica & International Law in the New Millennium’ (1999) 23 Suffolk Transnational Law Review 57, 61.

90 Ibid 64.

91 Harry, above n33, 214.

92 Spectar, above n89, 64.

93 Ibid 67.

94 Ibid 60.

95 Ibid 68.

96 The seven claimants are New Zealand, Australia, Argentina, Chile, the United Kingdom, France and Norway. David W Floren, ‘Antarctic Mining Regimes: An Appreciation of the Attainable’ (2001) 16 Journal of Environmental Law & Litigation 467, 469.

97 Brandt, above n38, 44.

98 Problems include proving effective occupation, or in the case of contiguity claims providing any basis in international law for extending claims from one continent to another.

99 Davor Vidas, ‘The Antarctic Treaty System in the International Community: An Overview’ in Stokke and Vidas (eds) Governing the Antarctic: The effectiveness and legitimacy of the Antarctic Treaty System (1996) 35, 37.

100 The five non-claimants who signed the Antarctic Treaty are the United States, the former Soviet Union, Belgium, Japan, and South Africa.

101 The Antarctic Treaty 1959, opened for signature 1 December 1959, 19 International Legal Materials 860, Art 9(2) (entered into force 23 June 1961).

102 Vidas, above n99, 56.

103 Antarctic Treaty, above n101, Art 9(2).

104 As of June 2003 there were 27 ATCPs. ‘XXVI Antarctic Treaty Consultative Meeting’ (Madrid, June 2003) <> .

105 Antarctic Treaty, above n101, Art 12(1).

106 Emilio Sahurie, The International Law of Antarctica, (1992) 433.

107 Ibid, 424.

108 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1461, Art 7 (entered into force 14 January 1998) (Madrid Protocol).

109 Ibid Art 25(3).

110 Ibid Art 2.

111 Ibid Art 2.

112 French, above n1, 298.

113 Ibid 299.

114 Spectar, above n89, 79.

115 Ibid 79.

116 Clancy, above n24, 606.

117 Spectar, above n89, 87.

118 Christopher Joyner, ‘CRAMRA: The Ugly Duckling of the Antarctic Treaty System?’ in Jorgensen-Dahl and Ostreng (eds) Antarctic Treaty System in World Politics (1991) 161, 175.

119 Spectar, above n89, 88.

120 Spectar, above n89, 72.

121 Antarctic continental shelf depths range from 400 to 800 metres deep, compared with an average of 100 to 200 meters elsewhere. Sahurie, above n106, 428.

122 William Welch, ‘The Antarctic Treaty System: Is it Adequate to Regulate or Eliminate the Environmental Exploitation of the Globe’s Last Wilderness?’ (1992) 14 Houston Journal of International Law 597, 647.

123 Tenenbaum, above n75, 130.

124 Joyner, ‘Book Review’ above n68, 625.

125 Tenenbaum, above n75, 131.

126 Welch, above n122, 627.

127 Floren, above n96, 481.

128 Antarctic Treaty, above n101, Art 12(1)(a)

129 Antarctic Treaty, above n101, Art 9(2).

130 David Hunter, James Salzman and Durwood Saelke, International Environmental Law and Policy (2002) 1053.

131 Welch, above n122, 627.

132 Antarctic Treaty, above n 101, Art 3(1), and Madrid Protocol above n108, Art 6(1).

133 Floren, above n96, 489.

134 Weiss, above n78, 397.

135 Madrid Protocol, above n108, Art 2.

136 Floren, above n96, 484.

137 Olav Stokke and Davor Vidas, ‘Introduction’ in Stokke and Vidas, (eds) Governing the Antarctic: The effectiveness and legitimacy of the Antarctic Treaty System (1996) 1, 2.

138 Tenenbaum, above n75, 116.

139 See Ernest Young, ‘Sorting Out the Debate Over Customary International Law’ (2002) 42 Virginia Journal of International Law 365, for a good review of critiques on the compatibility of customary international with traditional consent-based international law.

140 Ibid 385.

141 [1951] ICJ Rep 116.

142 Floren, above n96, 477.

143 For example Moon Treaty, above n47, Art 11; Also UNCLOS III, above n53, Art 145.

144 Madrid Protocol, above n108, Art 3.

145 Soeya Yoshihide, ‘Kyoto Protocol as a Diplomatic Issue’ Research Institute of Economy, Trade and Industry <> .

146 ‘Treaty Parties’ Australian Antarctic Division <>.

147 Church et al, above n2, [].

148 Peter Beck, The International Politics of Antarctica (1986), 280.

149 ‘XXVI Antarctic Treaty Consultative Meeting’ above n104.

150 Vidas, above n99, 51.

151 Vidas, above n99, 53.

152 ‘Malaysia Treads on Ice’ The Antarctican, 20 January 2003, <> .

153 Floren, above n96, 482.

154 Francicso Orrego Vicuna, ‘The Protocol on Environmental Protection to the Antarctic Treaty: Questions of Effectiveness’ (1994) 7 Georgetown International Environmental Law Review 1, 11.

155 Stokke and Vidas, above n137, 5.

156 French, above n1, 297.

157 French, above n1, 291.

158 Perhaps in a format similar to the discarded CRAMRA.

The Common Heritage of Mankind in Antarctica

New Zealand Yearbook of International Law

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