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Joyner, Christopher C --- "Challenges to the Antarctic Treaty: Looking Back to See Ahead" [2008] NZYbkIntLaw 18; (2008) 6 New Zealand Yearbook of International Law 25

Last Updated: 7 February 2019


Christopher C. Joyner[∗]


The Antarctic Treaty, conceived in the spirit of the highly successful 1957/58 scientific research program, the International Geophysical Year (IGY), was negotiated during 1959 and opened for signature on 1 December of that year.[1] Its principal purposes are to ensure ‘in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord’[2] and to use the science performed there to benefit the entire planet.[3] More than fifty years on, this accord has proved to be a remarkable multilateral instrument, and in many ways unique among international legal agreements. It is simple, straightforward and succinct. It consists of 2,364 words contained in only seven pages set out elegantly in a preamble and fourteen articles. Notwithstanding its conspicuous brevity—and the fact that seven of the original treaty parties[4] assert claims to territory on the continent—what the Treaty provides for in those legal provisions is huge indeed.
The Treaty guarantees and formalises opportunities for free access without restriction across the continent and scientific research rights that had characterized the highly successful IGY experience.[5] It also establishes a legal framework for all participating governments to closely collaborate in order to achieve the shared aim of preserving scientific research in the region, as well as for the mutual exchange of plans, information and personnel.[6] While the Treaty agrees to disagree on the legal status of the national claims to the continent (i.e., it does not recognize, affirm, dispute or negate those claims),[7] it does declare that no new claims may be asserted while the Treaty is in force.[8]
The Treaty further declares that Antarctica can be used only for peaceful purposes, thus proscribing the establishment of military bases or the conduct of military activities in the region.[9] Moreover, all areas and stations within the Treaty area are made subject to unannounced, on-site inspection, including aerial observation, by Contracting Treaty Parties for possible violations of the agreement, the reports from which are to be shared with all parties.[10] Importantly, nuclear explosions and the disposal of radioactive wastes are prohibited south of 60o South Latitude,[11] making this area the largest nuclear-free zone in the world.[12]
The Antarctic Treaty has also demonstrated considerable adaptability and resiliency as it evolved into a complex regional regime over the five decades since its inception. Twelve states were original parties—Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom and the United States—but by 2009 a total of forty-seven states had become Treaty parties. Of those, the original twelve and sixteen others attained the status of Antarctic Treaty Consultative Parties (ATCPs), which are the participating decision-making governments that negotiate and adopt policies under the Treaty.[13]

A. The Antarctic Treaty System

International concern over the ecological health of the global commons was not a salient concern in the late 1950s. Consequently, it should come as little surprise that the framers of the Antarctic Treaty did not mention the word ‘environment’ in the text. Yet, the Treaty drafters were sufficiently prescient to include within the Treaty the assertion that among ‘the matters of common interest’ that can prompt the Consultative Parties to meet, formulate and recommend measures to their governments is the ‘preservation and conservation of living resources in Antarctica.’[14] It is this multifaceted environmental imperative that is mainly responsible for the complex transformation of the Antarctic Treaty into the Antarctic Treaty System (ATS) over the past five decades, the only composite legal regime that manages an entire continent.[15] The Consultative Parties augmented the Treaty by more than 200 ‘recommendations’[16] adopted at Consultative Meetings, including the 1964 Agreed Measures for the Protection of Flora and Fauna.[17] Three other associated legal instruments were added to the Treaty. Two international agreements, the 1972 Convention on the Conservation of Antarctic Seals[18] and the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR),[19] were specifically adopted by most of the ATCPs to protect and conserve seals, krill, seabirds and finfish in the Southern Ocean. A highly detailed and lengthy instrument, the Convention on the Regulation of Antarctic Mineral Resource Activities, was negotiated by the ATCPs between 1982 and 1988.[20] However, owing to critical public protests from environmental activists in France and Australia over the possibility of minerals development in Antarctica, the agreement was indefinitely shelved and never entered into force. In 1991 the ATCPs brought to completion the environmental conversion of the Antarctic legal regime by negotiating the Protocol on Environmental Protection to the Antarctic Treaty.[21] This protocol provides one of the most advanced models for a comprehensive, demanding regime of environmental protection rules in contemporary international law, and applies to all parties throughout the entire Treaty area.[22]
The Antarctic is well-suited as a region for a wide-ranging treaty regime such as the ATS, due to the absence of any permanent human population and the lack of any commercial or industrial activity. Once the Antarctic Treaty ‘froze’ the sovereign claims, the state parties were able to develop over four decades an innovative regime of strict environmental protection rooted in a precautionary, multi-species, ecosystem-based approach that was managed through the ATS. At the heart of this robust regime is, of course, the 1959 Antarctic Treaty.
Notwithstanding the successful evolution of this legal arrangement, over the past decade certain issues have surfaced that could challenge the integrity and viability of this critical treaty instrument. At the same time, these challenges may generate political pressures that might adversely impact on other legal components of the ATS. This realization points to the central puzzle of this study, namely, what are the dimensions and possible consequences of these challenges for the security of the Antarctic Treaty? To critically examine this puzzle, Part II assesses the challenges associated with the natural resources and the sovereignty issue, with a focus, first, on the possible implementation by the seven claimant states of claims to outer continental shelf areas offshore their claimed continental sectors and second, the possible repercussions of the discovery of a supergiant hydrocarbon or mineral mother lode on or around the Antarctic Peninsula region. Part III evaluates selected potential challenges stemming from a second dimension, namely the competition and conflict that might arise from bioprospecting activities. Part IV explores the possible ramifications generated by whaling activities by Japan in waters off the Australian Antarctic Territory (AAT) and the legal and political efforts of both governments to counter the other. Finally, a conclusion proffers some closing thoughts for serious reflection.


During its half-century life, the Antarctic Treaty has impressively survived several stark challenges to its principles. Promulgated at the height of the Cold War, amidst ongoing international tensions over Berlin and Cuba, the Antarctic Treaty overcame ideological loggerheads and brought together the United States and the Soviet Union under the first major regional arms control regime.[23] Concern arose over the possibility of national commercial rivalries from sealing and fisheries over-exploitation and minerals development in Antarctica, but these were put under legal controls during the 1970s and 1980s.[24] Interestingly enough, in the early 1980s, two ATCP states, Argentina and the United Kingdom, went to war with each other over the Falkland/Malvinas Islands, but that belligerency did not disrupt ongoing ACTP negotiations concerning an Antarctic minerals regime.[25] Coincidently, the collapse of the negotiated Antarctic minerals regime agreement in 1989 led to serious friction between Australia and France and the governments of the United States, United Kingdom, New Zealand, Japan and Germany.[26] Nonetheless, during the early 1990s, those tensions morphed into the establishment of a consensus-negotiated framework for mutually beneficial multilateral resource conservation and environmental protection.[27] In sum, the performance of the state parties in upholding the Treaty and its associated agreements over the last fifty years has been remarkably cooperative and free from international animosity. However, new challenges, fueled mostly by accelerating globalization, are now appearing that could eat away at that cooperative underpinning of the Antarctic Treaty regime, especially if ATCP governments opt to press for narrow-minded national interests at the expense of what is good for the whole Treaty membership.

A. Outer Continental Shelf Delimitation

The scramble since 2007 by the Arctic coastal states to grab as much offshore continental shelf area as possible[28] touched off a similar flurry of geopolitical and legal activity by the seven claimant governments in the Antarctic.[29] At the regulatory heart of the rush to secure access to potential south polar hydrocarbons[30] is Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).[31] Indeed, Article 76 provides the legal means by which coastal states can gain sovereignty over vast areas of submarine continental shelf areas offshore their coasts—areas that might hold enormous reserves of hydrocarbon resources. Perhaps not surprisingly, the Antarctic claimant states are preparing for the possibility of exercising that opportunity offshore their claimed territories in the polar south.[32]
Article 76 provides for a four-step method for coastal states to delineate the outer limits of their continental shelves.[33] A coastal state must complete all of these steps in order to delineate the outer limits of its continental shelf.[34] Once a coastal state has completed the four-step process, it makes a submission of information about its delineation to the Commission on the Limits of the Continental Shelf (CLCS).[35] The Commission evaluates and discusses the submission and then makes recommendations to the coastal state.[36] These ‘recommendations’ consist of technical and scientific advice to aid the coastal state in the delineation process.[37] A coastal state then sets the limits of its continental shelf ‘on the basis of these recommendations’ and those limits ‘shall be final and binding.’[38]

B. Actions by Antarctic Claimant States

Since 2004 every Antarctic claimant state except Chile has acted as though it were a coastal state on Antarctica. To that end, they have made either a full or partial submission to the UN Commission on the Limits of the Continental Shelf in connection with their claimed Antarctic territories. Australia, the first claimant to make a submission to the CLCS, did so on 15 November 2004.[39] This submission identified continental shelf extensions in ten locations off the Australian mainland, including the Australian Antarctic Territory (covering 686,821km2), and was depicted on maps accompanying the submission. An accompanying note verbal requested that the CLCS defer consideration of the Antarctic extensions for the present time.
The submission by New Zealand was filed with the CLCS on 19 April 2006,[40] although it excluded a prospective outer continental shelf claim offshore its claimed sector in Antarctica, on grounds of the ‘special legal and political status of Antarctica under the provisions of the Antarctic Treaty....’[41] New Zealand, however, reserved the right to make a supplementary submission for this area ‘appurtenant to Antarctica’ in the future.[42]
Argentina made its submission to the CLCS on 21 April 2009, which included a map and geographical coordinates for outer continental shelf limits overlapping the Antarctic Peninsula.[43] Incredibly, the OCS claim advanced by Argentina runs from its coast eastward to the South Sandwich Islands, then south to encompass the entire Antarctic Peninsula-Weddell Sea region.[44]
On 4 May 2009, Norway filed a partial submission to the CLCS in which was included Dronning Maud Land.[45] In its submission, Norway acknowledges the ‘special legal and political status of Antarctica under the Antarctic Treaty, including its Article IV,’ and accordingly requested that the Commission accept this as a ‘partial’ submission, to refrain from taking action on ‘the continental shelf appurtenant to Antarctica.’[46]
Chile made its submission in the form of a ‘Preliminary Information’ statement to the CLCS on 8 May 2009.[47] In its submission, the outer continental shelf offshore the ‘Chilean Antarctic Territory’ is not substantively addressed, although it included the caveat that because there are areas of continental shelf appurtenant to Antarctica ‘the extent of which have yet to be defined,’ this is a ‘partial submission’ for which a submission ‘may be made later....’ [48]
The United Kingdom has made two public communications concerning its outer continental shelf claims in the Antarctic. First, in its Note No. 168/08 of 9 May 2008 to the UN Secretary General, the United Kingdom indicated that that it would be making in 2009 ‘a partial submission’ that ‘will not include areas of the continental shelf areas appurtenant to Antarctica, for which a submission may be made later....’[49] The rationale for omitting these areas was to preserve the harmony of the Antarctic Treaty, as well as because the extent of these continental shelf areas ‘has yet to be defined.’[50] Second, on 11 May 2009, the United Kingdom and Ireland submitted to the CLCS information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured respective to the Falkland Islands, South Georgia and the South Sandwich Islands.[51] While this submission does not contain any direct treatment of the continental shelf offshore the United Kingdom’s claimed Antarctic territory, Figure 1 in the Executive Summary clearly depicts the outer continental shelf limits for the areas around the Falkland Islands, South Georgia and the South Sandwich Islands extending southward into the ocean space south of 60o South Latitude, the jurisdictional ambit of the Antarctic Treaty.[52]
Although France has not formulated any specific outer continental shelf claim offshore its claimed territory in Antarctica (Adelie Land), it has noted in a ‘partial submission’ to the UN Secretary General in February 2009 that such an offshore zone might well exist, for which a submission may later be made.’[53]

C. Complicating Factors

Notwithstanding these developments, the concept of a coastal state and the definition of coastal baselines are critical factors for determining whether jurisdictional rules of ocean law can be applied to the waters around Antarctica. By definition, a coastal state refers to a specific territory with recognized borders alongside an ocean that is occupied by a population under an organized government and which, in its foreign affairs, possesses the qualities of sovereignty and independence. It is true that the states mentioned above do assert sovereign claims to portions of the continent. However, therein lies the rub: Do any of those claimed sectors in Antarctica qualify as a coastal state, or a territory recognized as sufficiently sovereign to generate legal rules for regulating offshore activities? During the fifty-year duration of the Antarctic Treaty, this keystone consideration remains unsettled. The claimant states maintain the legitimacy of their claims and the non-claimant states contend that those claims lack the ingredients necessary to qualify as a true coastal state or even a legitimate claimed territory. This ambiguity is codified by Article IV in the Treaty, which allows all parties to agree to disagree over the legal status of the claims. Moreover, paragraph 2 of Article IV asserts clearly that, ‘[n]o new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.’ This begs a critical consideration, namely, do the outer continental shelf claims offshore Antarctica - that are implied in the claimant states’ submissions to the CLCS - legally take the form of new claims? Might they be considered extensions of the old claims referred to in Article IV of the Antarctic Treaty? Or, if they merely ratify the already extant claims, does that status change if they are acted upon through national legislation by the claimant government?[54] These conundrums thus far have escaped legal resolution or consensus agreement, and if acted upon, they could pose serious impediments in the future to the Treaty’s success. For this reason, and to avoid putting stress on the ATS, it is unlikely that the CLCS will proffer its advice on these areas.[55]
A second factor for confirming a lawful claim to outer continental shelves is the necessity of establishing a coastal baseline, which is normally determined by the ‘low water line along the coast’ of a state.[56] However, as much of Antarctica is surrounded by ice throughout the year, it is not practical to determine a low water line. This is further complicated by ice shelves that ring portions of the continent, pieces of which frequently break off and render any potential coast lines impermanent and irregular. Again, these geophysical characteristics in Antarctica cannot help but severely complicate the ability to fix a coastal baseline, from which offshore jurisdictional zones would be drawn.
Another resource-related issue might create conditions that could adversely affect the integrity of the Antarctic Treaty. Suppose that, as in the Arctic, climate change in Antarctica continues to impact ice-covered areas, especially in and around the Antarctic Peninsula region. Suppose also that in the course of this accelerated global warming, considerable melting occurs and large areas of subglacial rock formations become exposed, leading to the geological discovery of huge platinum, uranium or other precious mineral reserves in parts of the peninsula, or to a supergiant field of hydrocarbons in the Weddell Sea. These regions are overlapped by the competing sector claims of the United Kingdom, Chile and Argentina, and such a situation might exacerbate competing claims and strain relations amongst those three states. Resource wars have certainly occurred in the past, though not notably in the polar south. The key factor would remain on how desperate a claimant state was to secure these resources and whether that single national interest to acquire mineral or hydrocarbon resources could be sublimated to the common interest of all in preserving the integrity of the Antarctic Treaty.
Clearly considerations regarding the legal status of continental shelf claims and the possibility of mineral and hydrocarbon resource development continue to weigh on the minds of many ATCP governments. That these concerns are not viewed as mere hypothetical scenarios was seen in April 2009 in the Ministerial Declaration on the Fiftieth Anniversary of the Antarctic Treaty, issued at the beginning of the 32nd Antarctic Treaty Consultative Party Meeting.[57] In paragraph 3 of that document, the Consultative Parties pledged to ‘Reaffirm the importance they attach to the contribution made by the Treaty, and by Article IV in particular, to ensuring the continuance of international harmony in Antarctica.’ Similarly, in paragraph 5 of that declaration, the ATCPs also pledged to ‘Reaffirm their commitment to Article 7 of the Environmental Protocol, which prohibits any activity relating to mineral resources, other than scientific research.’ The declaration was designed to reiterate support for the basic tenets of the Treaty System, especially key elements such as Article IV of the Treaty and Article 7 of the Environmental Protocol. These two elements were emphasized in particular because they remain fundamental to the continuing health of the Antarctic Treaty regime. The concern here focuses on the possibility that these elements might be destabilised by claimant state activities. The political accommodation created by Article IV can only be as strong as the willingness of key states (primarily the claimant states) not to take actions that manifestly promote claims or establish ‘regulation’ of claimed areas that affect non-claimant interests. Today no claimant state has sought to implement national legislation that would operationalise outer continental shelf claims. Nor has any claimant state pressed its domestic laws on other governments in Antarctica. Nationalistic rhetoric, even amongst the overlapping claimants, is generally kept at a low, relatively inoffensive level. Still, if governments began to act in ways to promote their control over claimed areas in Antarctica, those actions might induce other governments to follow suit, thereby presenting greater opportunities for the Treaty to unravel.


A second potential challenge to the integrity of the Antarctic Treaty is the increasing attention being given by governments and the private sector to biological prospecting—or bioprospecting—in the Antarctic and the potential conflicts those activities present for the ATS.[58] Over the last two decades, considerable interest worldwide has arisen in the exploration of naturally occurring micro-organisms, plants and animals for commercially valuable genetic and biochemical resources. In this regard, a growing amount of scientific research on flora and fauna in Antarctica is being conducted with the aim of discovering commercially beneficial genetic and biochemical resources. Such bioprospecting activity involves both pure academic as well as industrial research. Significantly, in the Antarctic context, this research is increasing for two principal reasons. First, the scant knowledge about Antarctic biota furnishes the potential for scientists to discover new life forms that could have use in biotechnology. Second, the environmental extremes that characterise Antarctica, such as frigid temperatures and extreme aridity, present conditions in which certain organisms have evolved unique characteristics and biochemicals for survival.[59] For example, there is a glycoprotein that functions as an anti-freeze in some Antarctic fish, preventing them from freezing to death in sub-zero marine environments.[60] Application of this glycoprotein is being considered in several commercial processes, including enhancing freeze tolerance in commercial plants, extending the shelf-life of frozen foods, improving surgery technique by freezing tissues and improving opportunities for fishing farming in cold climates.[61]

A. Bioprospecting in Antarctica

That there is growing commercial interest in Antarctic genetic resources is not disputed, as demonstrated by the fact that products derived from Antarctic genetic resources are already being marketed by several companies. Such products include nutraceuticals from krill oil, anti-freeze proteins, anti-cancer drugs, enzymes and compounds for cosmetic products. Much of this commercial activity focuses on the marine environment, in particular krill,[62] with less on land systems and inland water sources.[63] As reported to the ATCM, the greatest attention to genetic resources in Antarctica comes from the pharmaceutical/medical technology industries (23 percent), followed by the food and beverage industry (20 percent), molecular biology and biotechnology (18 percent), industrial applications (12 percent), chemical processing (11percent), cosmetics and personal care (6 percent), aquaculture and agriculture (6 percent), culture collection or library (3 percent) and environmental remediation (1 percent).[64]
At least 187 research organizations and companies from 27 states are undertaking research for commercial purposes in the Antarctic.[65] Amongst the major sponsoring states are Japan, United States, Spain, United Kingdom, Korea, Canada, Sweden, Russia, China, Chile, New Zealand, France, Belgium, India, Denmark, The Netherlands, Germany and Poland—all of which are ATCPs. The most entries in the recently-constructed Antarctic Bioprospecting Database originate from Japan, and mainly focus on organisms in the marine environment, principally Antarctic krill. The second largest number of entries originate from United States, most of which also focus on marine biota, especially krill, bacteria and fish.[66]

B. Bioprospecting as an ATS Issue

Bioprospecting first surfaced as an issue of interest in an Antarctic Treaty Consultative Meeting (ATCM) when the issue was raised by the Scientific Committee on Antarctic Research (SCAR) in 1999.[67] Then, at ATCM XXV in 2002, the United Kingdom tabled a short working paper that identified three serious concerns about the onset of bioprospecting activities in the Antarctic.[68] First, the potential for conflict existed between free access to scientific information as guaranteed by the Antarctic Treaty and the ‘confidentiality that inevitably surrounds the commercial exploitation of bioactive material (i.e. patenting).’ Second was the issue of whether and how regulation of bioprospecting should proceed, and if so, who should oversee it. Third, there was the issue of how to regulate revenues derived from commercial exploitation of Antarctic species. The United Kingdom’s paper was important, for it became the catalyst for the ATCP’s realization of the need to give serious consideration to bioprospecting in the polar south and alerted them to the potential legal, political and scientific complications that those activities might present to the ATS.
At ATCM XXVI in 2003, the Committee on Environmental Protection (CEP) approved ‘Biological Prospecting’ as an agenda item and considered two information papers.[69] The CEP observed that biological prospecting raised ‘many complex legal and political issues’ and decided to refer these concerns associated with biological prospecting to a future ATCM for further consideration.[70] In 2004, ATCM XXVI accordingly decided to put biological prospecting on the agenda of the following ATCM.[71] In 2004, the United Nations Environmental Programme (UNEP) introduced an information paper on the involvement of industry in Antarctic biological prospecting at ATCM XXVII.[72] The increasing saliency of bioprospecting was underscored at ATCM XXVIII in 2005, as New Zealand and Sweden submitted a working paper,[73] Spain introduced a scientific information paper, and the UNEP submitted an information paper on recent developments in biological prospecting relevant to Antarctica.[74] Also at ATCM XXVIII, the ATCPs approved Resolution 7 (2005), ‘Biological Prospecting in Antarctica.’ This measure recommended that ‘governments continue to keep under review the question of biological prospecting in the Antarctic Treaty area, and exchange on an annual basis information and views relating to that question as appropriate.’[75] The ATCM also noted in the same resolution the ‘ongoing discussions in other international fora on aspects of biological prospecting, including efforts to develop and clarify the nature and definition of such activities.’[76]
At ATCM XXIX in 2006, Argentina submitted an information paper that reported on its biological prospecting and bioremediation activities in Antarctica.[77] Information papers by France and the UNEP contributed to underscoring the need to establish a legal regime for biological prospecting in Antarctica, given recent trends of those activities.[78] In 2007, an information paper submitted to ATCM XXX by the UNEP proposed ‘a way forward’ to address a bioprospecting regime in the Antarctic,[79] which was complemented by a working paper submitted by the Netherlands, Belgium and France that examined different organizations, bodies and international instruments that might contribute to a regulatory framework for bioprospecting in the region.[80] The agenda of ACTM XXXI in 2008 attracted two information papers on bioprospecting. One introduced by Belgium provided an updated report on the creation of an Antarctic Bioprospecting Database[81] and the other submitted by the Netherlands contained the Report of the ATCM Intersessional Contact Group, which was formed to examine the issue of Biological Prospecting in the Antarctic Treaty area.[82] Most recently, in 2009, the XXXII ATCM adopted Resolution 9, which confirmed that the instruments of the Antarctic Treaty system are appropriate for managing biological prospecting in the Antarctic and that the issue should be kept under active consideration by the Treaty parties.[83] These developments strongly suggest that since 2000 the ATCPs have become keenly aware of the complex issue of bioprospecting in the Antarctic and the potential it presents for disrupting the cooperative regime in that region. Even so, serious discussions about bioprospecting have been localised within the ATCMs and CEP. CCAMLR has not been as actively involved in assessing the issue and its complications for conducting scientific research in the Southern Ocean. The pressing question now appears to be how problematic must the situation become before serious remedial action is taken to legally remedy these concerns.

C. Complicating Factors

Importantly, the ATS does not directly regulate bioprospecting activities in the Antarctic. To the extent that rules for bioprospecting now exist, they stem from the host government under which the researching company is carrying out bioprospecting. Nonetheless, certain provisions in the Antarctic Treaty, the Protocol on Environmental Protection and the Convention on the Conservation of Antarctic Marine Living Resources have relevance for bioprospecting, and these may provide the seeds for a future regulatory regime.
The Antarctic Treaty affirms that Antarctica shall be used for peaceful purposes only, provides for freedom of scientific investigations, and supports the promotion of international co-operation among scientists working in Antarctica.[84] Article III is the legal linchpin for scientific cooperation, as it sets out three specific measures that Parties should follow to this end. The Contracting Parties agree that,[85]

to the greatest extent feasible and practicable,

a) information regarding plans for scientific programs in Antarctica shall be exchanged to permit maximum economy and efficiency of operations;

b) scientific personnel shall be exchanged in Antarctica between expeditions and stations;

c) scientific observations and results from Antarctica shall be exchanged and made freely available.

The raison d’etre of the Antarctic Treaty is to ensure peaceful uses only and opportunities for scientists to exchange freely information, personnel and the results of research conducted in the Antarctic Treaty area. For the foreseeable future, it seems that bioprospecting in Antarctica will be principally confined to the collection and discovery of new biological resources. Consequently, for the time being bioprospecting seems likely to remain primarily a scientific activity, although it may eventually be undertaken for a commercial purpose. For that reason, such activities will fall within the ambit of Article III when it comes to addressing cooperation amongst scientific programmes and scientific personnel and exchanging scientific observations and research results. Important also is that reporting requirements will likely furnish information about many of these activities, but such reports are not likely to include information about the commercial application of these resources. This consequence points to two obvious concerns: first, can the desire to ensure commercial confidentiality and patent protection be reconciled with the legal requirements of scientific exchange and cooperation in Article III? Second, can intellectual property rights be preserved as a useful means for promoting and encouraging the exchange of scientific information? During these early years of bioprospecting in Antarctica, such queries remain unanswered by scientists, commercial investors and statesmen involved in the region.
Bioprospecting invites the commercialisation of research emanating from Antarctica, which will require considerable financial investment. Significant legal issues remain unresolved, among them genetic ownership, property rights and the legitimacy of acquiring these resources in a state’s claimed sector. Hence, bioprospecting in the frozen commons raises complex issues that involve scientific and commercial interests, environmental concerns, ethics and equity, and considerations relating to international law and policy, including the ability of the Antarctic Treaty system to deal fully and effectively with these research activities. To be sure, bioprospecting in the Antarctic will be a peaceful activity, since conducting such research for military purposes is not permissible under the Treaty.[86] Nevertheless, such activities still might generate discord within the ATS if they are undertaken for private commercial gain at the expense of international cooperation, freedom of scientific research, and environmental protection. At the same time, given the ambiguity and lack of precision about these concerns, some bioprospecting companies may become reluctant to invest resources in intensive work on Antarctic micro-organisms and will likely concentrate their efforts elsewhere.
The 1980 Convention on the Conservation of Antarctic Marine Living Resources, which ‘applies to the Antarctic marine living resources of the area south of 60o South latitude and to the Antarctic marine living resources of the area between that latitude and the Antarctic Convergence which form part of the Antarctic marine ecosystem,’[87] has as its main objective ‘the conservation of Antarctic marine living resources.’[88] Accordingly, any taking of natural resources must be done such that it prevents a ‘decrease in the size of any harvested population to levels below those which ensure its stable recruitment. For this purpose its size should not be allowed to fall below a level close to that which ensures the greatest net annual increment’(i.e., the maximum sustainable yield).[89] It is hard to imagine that genetic bioprospecting might be equated with ‘harvesting a population.’ Even so, the line where bioprospecting ends and harvesting begins remains unclear. In any event, CCAMLR provides for reporting requirements that mandate that contracting parties must, ‘to the greatest extent possible,’ report annually to the CCAMLR Commission and the Scientific Committee ‘such statistical, biological and other data and information’ as they need in the exercise of their functions.[90] In these regards, it seems reasonable to expect that harvesting activities involving genetic bioprospecting and areas where they are being conducted could be included in those reports. Nonetheless, several questions remain concerning CCAMLR’s role in dealing with bioprospecting activities. For one, does CCAMLR have sufficient legal competence to cover bioprospecting taking place on and under the ocean floor? Second, does CCAMLR have the technical capability to manage this? Third, will it be necessary to devise separate approaches by CCAMLR, and the 1991 Environmental Protocol to the 1959 Antarctic Treaty to deal with bioprospecting on land and in the Southern Ocean? If so, how long will these approaches take to become effective regulatory instruments? If a single approach is deemed more desirable by the ATCPs, how long will this take and will new regulatory instruments be necessary? These are complex, difficult questions that must be resolved if CCAMLR is to assume an active and effective role in managing bioprospecting activities in the Southern Ocean.[91]

D. Unresolved Bioprospecting Issues

A number of unresolved bioprospecting issues could pose serious challenges for the ATCP group, particularly, though not exclusively, between claimant and non-claimant states. One fundamental issue is the lack of a consensus definition of biological prospecting as a research activity. One of the better, more inclusive definitions of bioprospecting refers to ‘the search for valuable chemical compounds and genetic materials from plants, animals and micro-organisms; the extraction and testing of those compounds and materials for biological activity; and the research and commercial development of those that show activity.’[92] This definition is broader than other definitions, as it suggests the multi-phase nature of bioprospecting, which includes the search for, recovery of, testing of and commercial development of biological materials. Even so, it is notable that the terms ‘biological prospecting,’ ‘bioprospecting,’ ‘genetic resources’ or ‘genetic materials’ do not appear in any major ATS instrument.[93]
A second legal concern relates to who has the authority to determine access to genetic resources in Antarctica. Article 15 of the Convention on Biological Diversity asserts that the authority to determine access to genetic resources lies with national governments and is subject to their national legislation. Contracting parties are expected ‘to create conditions to facilitate access to genetic resources for environmentally sound uses by other Contracting Parties.’[94] Moreover, if granted, access ‘shall be on mutually agreed terms’ and made ‘subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party.’ Here again the ambiguity of the Antarctic Treaty complicates the legal situation for conducting bioprospecting activities. As in the case of outer continental shelf delimitation, the Antarctic Treaty provides in Article IV(2) that, ‘[n]o acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica.’ But what degree of legal authority, if any, do claimant states possess to regulate access? Does sufficient sovereignty reside in those Antarctic claims to endow a claimant state with the necessary authority to determine access to Antarctic genetic resources in its claimed sector? No less important, would this ‘authority’ give claimant states the right of refusal to a prospective bioprospector? If so, this situation would appear to be directly in conflict with the freedom access guaranteed in Article III of the Antarctic Treaty for scientific research. On the other hand, does any private company have the lawful authority absent state consent to undertake bioprospecting activities in the Antarctic, or must it have a sponsoring state that is a party to the Antarctic Treaty? While nonparties are not likely to engage in such genetic research in the polar south, the issue remains unclear. It might be useful for the ATCM to undertake a review of present ATS instruments to determine whether there already exists a sufficient regulatory framework for authorising bioprospecting activities and for managing both terrestrial and marine bioprospecting activities in the Antarctic. In addition, such a review might also consider the possibility of developing a permitting process such as that contained in Annex II of the Environmental Protocol that might be implemented to regulate access by bioprospectors.[95]
A third troublesome bioprospecting issue concerns whether and how monetary and other benefits acquired from genetic resource research should be shared. Who retains how much of the profits, if any, derived from bioprospecting research? Are all benefits to be retained solely by the company who invests most heavily in the research? Should claimant states figure into any exclusive scheme for apportioning benefits derived from genetic resources in their sector claim? Should the ATCPs receive benefits as a special group? Or should there be a common fund so that peoples worldwide might gain from Antarctica’s resources?[96] Finally, with respect to the freedom of scientific research in the Antarctic Treaty area, should a distinction be made between basic scientific research, applied scientific research and commercial use within the context of benefit-sharing? These are important questions affecting bioprospecting activities that could trigger disruptive political reactions amongst the ATCPs.
In the search for answers to these critical questions, it would seem prudent and practical that lessons for bioprospecting might be learned from the experience gained during the 1980s of negotiating the prospecting phase for the Antarctic minerals regime, as well as by consulting the text of its non-operational instrument, the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA).[97] Seven years of intense negotiations amongst the ATCPs produced this long, complex regulatory instrument for regulating mineral resources activities, but it collapsed within eighteen months of being opened for signature. Nevertheless, CRAMRA contains provisions related to ‘prospecting,’ (one of three phases used for Antarctic minerals development), a special institutional structure, and clever ways of dealing with sovereignty issues. The manner in which CRAMRA addressed the treatment of information and data may also be worth considering as an approach for dealing bioprospecting. As an ‘Antarctic mineral resource activity,’ ‘prospecting’ in CRAMRA was formally made consonant with the Antarctic Treaty, as Article 1 plainly asserted that it would ‘not include scientific research activities within the meaning of Article III of the Antarctic Treaty.’[98] CRAMRA also preserved the freedom of scientific exchange in prospecting activities, while also protecting proprietary data for company ‘operators.’ To wit, Article 16 of CRAMRA provides that, ‘[d]ata and information obtained from Antarctic mineral resource activities shall, to the greatest extent practicable and feasible, be made freely available, provided that: (a) as regards data and information of commercial value deriving from prospecting, they may be retained by the Operator in accordance with Article 37;...’ In addition, a special institution, the Commission, was established, with one of its functions being ‘to adopt measures relating to prospecting applicable to all relevant Operators...’[99]
Finally, it warrants noting that Chapter III constitutes the prospecting section in CRAMRA, from which a number of points might be gleaned relative to bioprospecting in Antarctica. For one, prospecting in the minerals treaty could not confer ‘upon any Operator any right to Antarctic mineral resources.’[100] The same restriction might be made for genetic and biochemical resources. Second, prospecting must ‘at all times be conducted in compliance’ with CRAMRA, although authorisation for prospecting is not required by any institution established by the convention.[101] Third, a sponsoring state must ‘ensure that its Operators undertaking prospecting maintain financial capacity, commensurate with the nature and level of the activity undertaken and the risks involved’ as well as to ensure timely response action, under strict liability standards.[102] Fourth, in areas where more than one operator is conducting prospecting, sponsoring states under CRAMRA are required to ensure that those operators ‘conduct their activities with due regard to each others' rights.’[103] Fifth, sponsoring states are mandated to notify the Commission at least nine months before prospecting activities begin.[104] Such notification must, inter alia, identify the precise location of the prospecting activity, identify the resources that are the subject of the prospecting, describe the methods to be used, provide an assessment of the possible environmental and other impacts of the prospecting, taking into account possible cumulative impacts,’ and certify that the operator has a ‘substantial and genuine link with the Sponsoring State....’[105] All of these provisions might contribute to addressing many of the protracted issues that make bioprospecting such a problematic concern to the ATCPs, but the reality is that the issue is not going to go away. Sooner or later, complications arising from one ATCP state’s bioprospecting activities might lead to conflict with another ATCP. Looking back to how the CRAMRA negotiators handled similar questions might provides important clues to resolving, or at least mitigating, these legal dilemmas.
The present Antarctic Treaty regime does address the physical impact of bioprospecting. However, the challenges posed by bioprospecting to the integrity of the Antarctic Treaty are formidable. Indeed, the need to formulate an acceptable legal and policy basis for regulating the commercial development of genetic resources according to fundamental principles of the ATS, underpinned by equity and fairness, are complicated and intimidating, much like the prospects for regulating minerals development in Antarctica during the 1980s. Indeed, the ability to formulate rules for bioprospecting in Antarctica requires basic conceptual agreement amongst the ATCPs about both the objectives of such regulation and the form of managerial scheme that would be politically acceptable, administratively practical, and legally balanced. In this regard, certain fundamental issues must be resolved if pragmatic policies are to be negotiated successfully. Among these are the need for more detailed information on bioprospecting activities in Antarctica; the formulation of a standardized definition of bioprospecting; the determination of whether the conduct of bioprospecting runs contrary to the freedoms of scientific research, access and exchange found in Article III of the Antarctic Treaty; the identification of principal legal considerations with respect to ownership, use and protection of targeted resources; the determination of who owns the commercial products derived from bioprospecting activities; and the legal connection between ATS instruments and other international agreements and policies affecting the conduct of bioprospecting.


A third potentially serious challenge to the integrity of the Antarctic Treaty lies in the political tensions arising between Japan and Australia, both Antarctic Treaty Consultative Parties, over Japan’s practice of lethal whaling in the Southern Ocean. This confrontation has grown more intense since the mid-1980s, when Japan launched its national programme of lethally taking whales under the guise of conducting ‘scientific research.’ This scientific whaling program continues today.
The international body created to watch over national whaling operations is the International Whaling Commission (IWC), which was established in 1946 by the International Convention for the Regulation of Whaling (ICRW).[106] As articulated in its preamble, the ICRW has as its fundamental purpose to ‘provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.’[107] The IWC is supposed to take decisions that recommend policies to member governments in order to ensure the protection of the world's whale stocks.[108]
Since the late 1970s, however, the IWC became dominated by governments who largely opposed the practice of commercial whaling, primarily on the grounds of conservation and moral principle. The result of this political shift became most evident in 1986 with the IWC’s adoption of a moratorium on commercial whaling that remains in effect today,[109] and its creation in 1994 of the Southern Ocean Whale Sanctuary, which prohibits all commercial whaling within its borders, consisting of nearly all of the Antarctic Southern Ocean.[110] While objecting to the moratorium, Japan indicated that it would cease ‘commercial whaling’, though in fact Japanese whaling operations continued under the pretext of so-called ‘scientific whaling’ that is permitted under Article VIII of the ICRW.[111]

A. Japan’s Whaling Programme

After the IWC moratorium was adopted, Japan began ‘scientific research’ hunts to provide a lawful basis for the resumption of sustainable whaling.[112] Japan initiated its Whale Research Program under Special Permit in the Antarctic (JARPA) in the 1987-88 Southern Ocean whaling season.[113] The main focus of JARPA was Antarctic minke whales, with a projected targeted take of 300 +/- 10% each season.[114] However, since the 1995-96 season, the annual take has increased to 400 +/- 10%.[115] Importantly, from 1987 through the 2004-05 season, an eighteen year period, over 6800 Antarctic minke whales were taken in Antarctic waters under JARPA—a hugely disparate quantity when compared to the total of 840 whales taken globally by Japan for scientific research in the 1955-1986 period prior to the IWC’s commercial whaling moratorium.[116]
In 2005, Japan announced its intention to undertake JARPA II, a large-scale Antarctic programme, which began in the 2005-06 season. The first two seasons were dedicated to feasibility studies, in which the objectives of JARPA II were simply defined by Japan as: (1) monitoring of the Antarctic ecosystem; (2) modeling competition among whale species and developing future management objectives; (3) elucidation of temporal and spatial changes in stock structure; and (4) improving the management procedure for Antarctic minke whale stocks.[117] JARPA II began in the 2005-06 season and focused on Antarctic minke, humpback and fin whales. Japan initially sought to take a maximum of 850+/-10% minke whales, 50 humpback whales and 50 fin whales, but following an immense public protest over the taking of humpbacks, their catch was suspended.[118] Significantly, JARPA II more than doubled the targeted number of whales taken for ‘scientific research’ during JARPA. It is widely reported that much of the whale meat generated by JARPA and JARPA II ends up for sale in fish markets, for human consumption.[119]
Since JARPA began in 1986, its scientific value has been seriously criticised in the IWC. In fact, IWC member governments (many of which are ATCP states) have been particularly disparaging of the Japanese research program which, to date, has killed more than 11,000 whales,[120] but has produced scant substantial scientific data from more than two decades years of supposed research.[121] Nevertheless, every year, despite the IWC's rejection of the Japanese whale research program in Antarctica, Japan continues to issue to itself scientific permits to kill whales.[122] In 2007, the IWC adopted Resolution 2007-1, which restated its deep-seated concern about the special permit system, specifically Japan’s JARPA II program.[123]

B. The Australian Connection

The conflict between Japan’s ‘scientific whaling’ programme and Australia originates in the 1980s. Two decades prior, Australia had passed the Whaling Act of 1960, which dealt with the rational exploitation of whales through licenses and permits. It was not, however, ever enforced against foreign nationals. Over the next two decades, however, sentiments in Australia toward whales and whaling changed radically, and the national tolerance of whaling became supplanted by a pronounced conservation ethic. Accordingly, in 1980, Australia’s Parliament repealed the Whaling Act 1960 and replaced it with the Whale Protection Act of 1980. This 1980 statute did not merely regulate whaling activities. Instead, strong conservation provisions were inserted, with prohibitions on Australian nationals from killing, capturing, injuring or interfering with whales, dolphins and porpoises in Australian waters.[124] Regarding its jurisdictional reach, the Whale Protection Act adopted from Australian fisheries law the Australian Fishing Zone (AFZ) concept[125] as the basis for establishing persons subject to this legislation. The Act applied to Australian nationals irrespective of location, but only applied to non-nationals if they were present in the AFZ.[126] In addition, application of the Whale Protection Act 1980 was made subordinate to ‘the obligations of Australia under international law, including obligations under any agreement between Australia and another country or countries.’[127] Consequently, regarding the protection of whales in the Southern Ocean, the Act was not meant to apply to whaling activities conducted in compliance with the ICRW.[128]
Australia’s concern with offshore ocean jurisdiction continued into the 1990s. In accordance with the 1982 UN Convention on the Law of the Sea,[129] Australia formally declared in 1994 an Exclusive Economic Zone (EEZ),[130] which required amending the AFZ to allow for this action under Australian fisheries law.[131] The AFZ was re-defined to encompass those waters adjacent to Australia and its external territories - including the AAT - within Australia’s claimed EEZ.[132] Similarly, under the Whale Protection Act 1980, the jurisdictional basis of the Act's operation was changed from the AFZ to the EEZ. As a result, all whaling, whether conducted by Australians or non-nationals, in the purported Australian EEZ off the AAT became regulated by Australian law. However, this Act remained subservient to Australia's international legal obligations, including those in the ICRW and the 1959 Antarctic Treaty.
Legal protection for whales under Australian law was again reinforced in 1999 as Parliament repealed the Whale Protection Act 1980 and enacted new legislation, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act).[133]
The Act establishes an Australian Whale Sanctuary (AWS) to help assure the conservation of whales and other cetaceans[134] and acknowledges the ‘formal recognition of the high level of protection and management afforded to cetaceans’ by Australia’s government.[135] Accordingly, the Act makes it an offence to kill, injure, take, interfere with, treat, or possess whales within the AWS. [136] As regards the EPBC Act’s jurisdiction, the AWS is made cover the waters of the Australian EEZ, which includes those EEZ waters adjacent to the AAT. No exception is made to exclude jurisdiction of this Act over non-Australian nationals.[137] Moreover, the EBPC Act contains no requirement that it must be made subordinate to Australia's international obligations.

C. Australia’s Anti-Whaling Judicial Activism

Australia’s steadfast anti-whaling position over the past twenty years concentrated on Japan and boiled over into Australia’s Federal Court in 2004. The case was brought by Humane Society International (HSI), a public interest organization, against Kyodo Senpaku Kaisha Ltd. (Kyodo), a Japanese company engaged in killing whales in the Southern Ocean, specifically in the AWS, within the claimed EEZ off the AAT.[138] Kyodo operated under a special permit issued through JARPA by Japan, purportedly under Article VIII of the ICRW. Not surprisingly, neither the respondent nor the government of Japan appeared in court throughout the duration of the proceedings.
The key questions in HSI turned on first, whether Japan had violated the EPBC Act and second, whether Australia had the capacity to impose legal authority over the Japanese whaling fleet.[139] Although it was not difficult for the Court to find Japan in violation of the EPBC, which prohibits killing whales within the AWS for any reason, the thornier question concerned Australia’s claim of sovereignty and subsequent authority over the Australian Antarctic Territory.[140] The Court reasoned that, within the context of the 1982 UNCLOS and the provisions of the EPBC Act, Australia’s EEZ and attendant whale sanctuary did extend into Antarctic circumpolar waters.[141] Therefore, the Court concluded, that because the Japanese killed whales within the Australian Antarctic Territory, they violated the Australian EPBC Act.[142] Consequently, following more than three years of court proceedings and juridical arguments, the Australian Federal Court declared in 2008 that Kyodo had breached sections 229-232 and 238 of the EPBC Act by killing, treating, and possessing whales in the AWS in the EEZ offshore the Australian Antarctic Territory.[143] Subsequently the Court issued an injunction to Kyodo, effective January 15 2008, to refrain from the further killing, injuring, taking, or interfering with any Antarctic minke, fin, or humpback whales in the AWS bordering the AAT.[144] Australia thus became the first state to judicially find that Japan’s whaling in the Southern Ocean Sanctuary was unlawful under national law.[145]
It is significant to note, however, that Japan publicly indicated in 2008 that it would ignore the Australian Court’s ruling.[146] The justification for this was not unreasonable. Japan—along with 187 other states—does not recognize Australia’s sovereignty on the continent, nor its legal authority to declare jurisdictional zones (i.e., an Australian EEZ or a whale sanctuary) offshore Antarctica.[147] This highlights a cardinal objection by Japan to Australia’s claims to an EEZ offshore Antarctica, namely that Article VI mandates that nothing in the Antarctic Treaty can ‘prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas’ in Antarctica.[148] Nearly all states—including Japan—interpret this to mean that all circumpolar Antarctic seas should be considered high seas, simply because no recognized sovereign coastal states exist within the Antarctic Treaty area.[149] Put simply, for Japan and all the other states that do not recognise territorial claims in Antarctica, all marine areas adjacent to Antarctica are high seas because there are no coastal states, or their legal equivalent, on the continent.

D. Anti-Whaling Environmental Activism

Since the HSI case, events have escalated tensions between Japan and Australia over actions by environmental activists against Japanese whaling vessels in the Southern Ocean, especially in the proclaimed AWS zone. Led by the Sea Shepherd Conservation Society (SSCS), for the past two decades, these activists have chased, harassed, rammed, and even sunk Japanese whaling vessels on the high seas.[150] Not surprisingly, Japan has accused the SSCS of eco-terrorism and acts of piracy at seas, and has even threatened to bring suit against that group.[151] Japanese apprehension over possible arrest by the Australian government has also affected its whaling fleet. In January 2009, the Yushin Maru No. 2, a Japanese harpoon vessel, chose to sail thousands of kilometers to Indonesia for repairs rather than risk arrest by landing in nearby Australia or New Zealand.[152] Finally, in September 2009, Japan urged Australia’s government not to support the SSCS’s effort to disrupt whaling operations at sea. As a whale-friendly state whose Federal Court in 2008 found Japanese whalers in violation of Australia’s federal prohibition against whaling in the AWS, an order that has been publicly disregarded by the Japanese government, Canberra is unlikely to physically prevent the SSCS from engaging in its actions against Japanese whalers.[153]
The analysis above underscores the situation that Australia and Japan, two original parties to the Antarctic Treaty, remain at serious loggerheads over the Japanese government’s continued support for whaling in the Southern Ocean, most particularly in waters offshore the AAT. Their treaty relationship is no doubt further strained by the cosmetic character of Japan’s legal rationale for whaling, i.e., through special permits issued for ‘scientific research.’ An argument could be marshalled that the lethal whaling by Japanese nationals is excessive (by taking 1000 minke whales a year) to the point that it abuses the right of scientific research provided for in Article VIII of the ICRW.
Since much of Japan’s whaling occurs in Antarctic waters, this invites the possibility that other ATCPs might confront Japan on the whaling issue in Antarctic Treaty fora. Thus far the ATCPs have been reluctant to do so, for both legal and political reasons. Under the Antarctic Treaty, as previously mentioned, nothing can prejudice or affect the rights or the exercise of the rights of any state with regard to the high seas within the treaty area.[154] The default option has been to put off Japanese whaling from warranting ATCM attention, in deference to dealing with the issue in the IWC. This strategy has proved to be ineffective.
The issue still remains as to whether Japan’s whaling policy threatens the very purpose and intent of ATS instruments. For example, what environmental risks to the marine ecosystem in the Southern Ocean are posed by the activities of Japanese whalers? Can whaling as an activity be viewed as undermining the environmental principles set out in the Antarctic Treaty’s Environmental Protection Protocol? That is, does JARPA II as a national Japanese activity undercut the ‘protection of the Antarctic environment and dependent and [its] associated ecosystems and the intrinsic value of Antarctica, including its wilderness and aesthetic and dependent and associated ecosystems...?[155] Specifically in this regard, do Japanese whaling activities produce ‘detrimental changes in the distribution, abundance or productivity of species of populations of species of fauna and flora,’ or cause ‘further jeopardy to endangered or threatened species or populations of such species,’ or lead to ‘degradation of, or substantial risk to, areas of biological, scientific, historic, aesthetic or wilderness significance’ in the Antarctic marine ecosystem?[156] Should the aggressive confrontations between Japanese whaling vessels and environmental activists in Antarctic waters be viewed as a breach of the fiat that the Antarctic area must be used exclusively for peaceful purposes and not become the scene or object of international discord?[157] Notwithstanding the mandate in Article VI of CCAMLR,[158] might the Commission on the Conservation of Antarctic Marine Living Resources be empowered to take a bolder approach toward assessing the environmental impacts of Japan’s whaling activities on species within the Antarctic Treaty area? While these queries remain more hypothetical than realistic suggestions, they should not be dismissed outright. Consequently, it must be realised that any of these strategies are unlikely to happen in the ATS consensus-based decision-making system, simply because Japan could cast a negative vote. However, should the anti-whaling criticism against Japan become too shrill in any of the Antarctic Treaty fora (or the IWC, for that matter), Japan could walk away and quit the ATS. While that scenario hardly seems likely, it would be the ultimate manifestation of Japan’s contempt for the worldwide condemnation of its whaling and certain environmentalists’ aggressive actions aimed at shutting down its ‘scientific’ whaling activities. The harsh political and legal reality might well be that the IWC, the ATCP group and the Japanese government would all be less well off in that instance.


Over the past five decades, the Antarctic Treaty has proved itself to be amongst the most successful multilateral agreements negotiated in the 20th century. It demilitarises, denuclearises and guarantees freedom of scientific research, exchange of information and programmatic cooperation between its member states over one tenth of the earth’s surface. But times have changed and new political, economic and legal complications have arisen. We now live in an era of accelerating technological development, rapidly unfolding globalisation and escalating natural resource demands. Accordingly, new pressures of economic need and political circumspection could generate negative impacts upon the cooperative character of the Antarctic Treaty regime. Since the 1980s, the Antarctic Treaty System has had to confront certain troublesome issues that continue to tax its integrity: global climate change, tourism, and illegal, unregulated and unreported fishing by unlicensed fishers. To be sure, they will still need to be addressed. But certain other more pressing concerns about the security of the Antarctic Treaty regime have surfaced over the past decade that must be tackled in coming years. These include the possibility that claimant states might opt to implement national continental shelf claims offshore Antarctica, or that companies or governments might undertake widespread unregulated bioprospecting activities in the treaty area, or that tensions might become more exacerbated between Japan and Australia and antagonistic environmental activists over Japanese whaling in Antarctic waters. If any of these scenarios should occur, real risks and potentially high costs might be imposed upon the security of the Antarctic Treaty.
It is important to understand, however, that none of these challenges is inevitable. The critical factor in this calculus is the national interest of the party states themselves. So long as the principal ATCP governments perceive that their own national interests are better served as partners in the Antarctic Treaty system, they are likely to defer disruptive tactics and continue to support and implement ATS policies that are jointly negotiated and agreed upon. More significantly, there is little evidence to suggest that any Antarctic Treaty state has the political will to defect from the treaty relationship to pursue its own ends on or around the continent in the foreseeable future. The main attraction of the ATS is that governments can cooperate together to make the Antarctic a demilitarised zone of peace where scientific research can be planned, undertaken and shared to benefit all people on the planet. If the Antarctic commons is to be preserved and conserved under these conditions for future generations, then exercising and sustaining that goal ranks as the critical consideration. That task undoubtedly cannot help but remain the preeminent challenge for Antarctic Treaty governments in the coming decades.

[∗] Director, Institute for International Law and Politics, Georgetown University; Professor of International Law, Department of Government and Edmund A. Walsh School of Foreign Service, Georgetown University. This paper develops the presentation under the same title delivered at the Colloquium Responding to Contemporary Challenges and Threats to Antarctic Security: Legal and Policy Perspectives, held at the School of Law, University of Canterbury, 5-7 July 2009. The author would like to acknowledge the generous support provided by the New Zealand Law Foundation which enabled attendance at this Colloquium. The author wishes to express his appreciation for constructive comments made on this article by Alan D Hemmings. Any errors of commission or omission are, of course, the sole responsibility of the author.
[1] Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
[2] Antarctic Treaty, preamble.
[3] Antarctic Treaty, art III.
[4] The seven claimants are Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom.
[5] Antarctic Treaty, art II.
[6] Antarctic Treaty, art III.
[7] Antarctic Treaty, art IV.
[8] Antarctic Treaty, art IV(2).
[9] Antarctic Treaty, art I.
[10] Antarctic Treaty, art VII.
[11] Antarctic Treaty, art V.
[12] The area of the Antarctic region is 20.327 million sq km or 7.84829 sq. miles. Central Intelligence Agency, The World Factbook (Southern Ocean), <
publications/the-world-factbook/geos/countrytemplate_oo.html> at 24 September 2009.
[13] The acceding ATCPs are: Brazil, Bulgaria, China, Ecuador, Finland, Germany, India, Italy, Republic of Korea, the Netherlands, Peru, Poland, Spain, Sweden, Ukraine and Uruguay. The 19 non-Consultative Parties are Austria, Belarus, Canada, Colombia, Cuba, Czech Republic, Korea (DPRK), Denmark, Estonia, Greece, Guatemala, Hungary, Monaco, Papua New Guinea, Romania, Slovak Republic, Switzerland, Turkey and Venezuela.
[14] Antarctic Treaty, art IX(1)(f).
[15] See Christopher C Joyner, Governing the Frozen Commons: The Antarctic Regime and Environmental Protection (1998).
[16] In 1995 at ACTM XIX, the single category of ‘recommendations’ was replaced with ‘measures’ (intended to be legally binding on ATCPs), ‘decisions’ (internal matters adopted and approved at ATCMs), and ‘resolutions’ (nonbinding texts adopted at ATCMs) (Decision 1 (1995)). All ATCM Measures, Recommendations, Decisions, ATCM Working Papers (WP), Information Papers (IP), ATCM Final Reports and CEP Reports cited in this article are reproduced on the Antarctic Treaty website online: <> at 24 November 2009, unless otherwise stated.
[17] Recommendation III-VIII, approved (1964), 17 UST 996, TIAS No. 6058 (1965), as modified in 24 UST 992, TIAS No. 7692 (1973). The Agreed Measures were superseded by Annex II to the 1991 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998), when the Protocol entered into force.
[18] Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, (1972) 11 ILM 251 (entered into force 11 March 1978).
[19] Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982).
[20] Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature 2 June 1988, 27 ILM 868 (not in force).
[21] 1991 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998).
[22] Philippe Sands, Principles of International Environmental Law – Volume I Standards, Principles and Implementation (1995), 529.

[23] A series of United States-Soviet bilateral nuclear arms control measures were adopted in the wake of the Cuban missile crisis of October 1962.
[24] See Joyner, above n. 15, 120-146.

[25] On this point, Alan Hemmings has thoughtfully observed that while ‘[S]tates in external confrontation have not refused to turn up, or left the system, or caused a formal hiatus in institutional development. But there have been clear internal difficulties, and these are not without practical effect on what it has been possible to reach consensus on: e.g. (1) The now annual and painful exchanges between the UK and Argentina over sovereignty around South Georgia, Falklands, etc. – which really accounts for the 10+ year delay in establishing the Secretariat; (2) the fact that although apartheid South Africa was not kicked out of the ATS, they said nothing, held no offices, held no meetings and were (quite reasonably perhaps) treated with contempt; (3) the way the Norwegians led the critique of Australia’s 2002 CCAMLR project of toothfish listing on CITES was clearly given edge by the row between these two states about the way Australia had dealt with the Norwegian ship Tampa when it rescued 400+ asylum seekers.’ Alan D Hemmings, personal communication with the author, 4 Oct. 2009.

[26] Malcolm W Browne, ‘France and Australia Kill Pact on Limited Antarctic Mining and Oil Drilling’, New York Times, 25 September 1989, p. A10.
[27] Joyner, above n 15, 78-81.
[28] See R I A Novosti, Both Russian mini-subs surface after symbolic North Pole Dive, 2 August 2, 2007, online: <http://en.> at 11 December 2009; Charles Digges, Russian Arctic Underwater Oil Expedition Researches North Pole, Environment News Service, 2 August 2007, online: <> at 25 September 2009; James Graff, ‘Fight for the Top of the World’, Time Magazine 19 September 2007, online at: <,8599,1663445,00.html> at 25 September 2009; and generally Christopher C Joyner, ‘The Legal Regime for the Arctic Ocean’, (2009) 19 Florida State University Journal of Transnational Law & Policy (in press).
[29] See the discussion in the text below at notes 39-53.
[30] While deposits of poor quality coal have been found on the continent, no hydrocarbons or commercially recoverable minerals have actually been discovered on or around the continent. Even so, speculation that the continental shelves of Antarctica may contain petroleum is fuelled by discovery of significant oil reserves in the subdivisions adjacent to Antarctica of Gondwanaland, the supercontinent that broke apart 200 million years ago. This is especially true for Australia, South Africa, South America and South Asia. Such speculation drew support in 1973 when the research vessel Glomar Challenger found hydrocarbons associated with petroleum deposits in the Ross Sea. J Spivak, ‘Frozen Assets’, Wall Street Journal, 21 February 1974, p. 1. The following year, the U.S. Geological Survey estimated that there could be deposits of 45 billion barrels of oil on the continental shelves of West Antarctica. N A Wright and P L Williams, Mineral Resources of Antarctica, Geological Survey Circular 705 (Reston, VA: USGS, 1974). In 2000, the Energy Information Administration, which maintains the official energy statistics for the U.S. Government, estimated that ‘the Weddell and Ross Sea areas alone are expected to possess 50 billion barrels of oil - an amount roughly equivalent to that of Alaska’s estimated reserves.’ Energy Information Administration, Antarctica Fact Sheet (2000), <> at 9 October 2009.
[31]United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). [Hereinafter 1982 UNCLOS].
[32] Article 76(1) 1 defines the continental shelf of a coastal State as ‘the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin.’ It goes on to assert in article 76(3) that that ‘the continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise.’ Thus, the combination of paragraphs 1 and 3 forms the legal definition of the continental shelf and declares that a coastal State’s territory extends seaward under water, with the continental shelf constituting the ‘submerged prolongation of its land territory’ and the outer limit of that prolongation measured according to the ‘submerged prolongation of the land mass.’ Office of Legal Affairs, Division for Ocean Affairs and the Law of the Sea, Training Manual for Delineation of the Outer Limits of the Continental Shelf Beyond 200 Nautical Miles and for Preparation of Submissions to the Commission on the Limits of the Continental Shelf, (2006) I-18 [Hereinafter OCS Training Manual].
[33] The first step is for a coastal state to determine the outer limits of its continental margin. OCS Training Manual, Ibid I-26. Then, the coastal state must prove that its continental shelf satisfies the ‘Test of Appurtenance’, which requires that the offshore continental shelf extend ‘throughout the natural prolongation of its submerged land territory to the outer edge of the continental margin’ beyond 200 nautical miles, measured from the coastal state’s baselines. OCS Training Manual, Ibid I-26; 1982 UNCLOS, art 76(1). Third, once the Test of Appurtenance is satisfied, a coastal state must verify that the lines determined in step one do not exceed the constraint lines defined in paragraphs 5 and 6 of art 76. OCS Training Manual, Ibid I-26; 1982 UNCLOS, art 76(5) and (6). Finally, that coastal state must use the formulae lines and the constraint lines from step three to delineate the outer limits of its continental shelf. OCS Training Manual, Ibid I-26; 1982 UNCLOS, art 76(7).
[34] OCS Training Manual, Ibid I-26.
[35] 1982 UNCLOS, Art 76(8).
[36] Commission on the Limits of the Continental Shelf (CLCS), Rules of Procedure of the Commission on the Limits of the Continental Shelf, U.N. Doc. CLCS/40/Rev.1, Annex II (17 April 2008).
[37] 1982 UNCLOS, art 76(8).
[38] Ibid.

[39] Commission on the Limits of the Continental Shelf (CLCS), Outer Limits of the Continental Shelf beyond 200 Nautical Miles from the Baselines: Submissions to the Commission: Submission by Australia, <
_aus.htm> and Executive Summary <
aus04/Documents/aus_doc_es_web_delivery.pdf> at 28 September 2009. Chile has submitted only ‘preliminary information’. For a more detailed treatment of these submissions, see Alan D Hemmings and Tim Stephens, ‘Reconciling Regional and Global Dispensations: The Implications of Subantarctic Extended Continental Shelf Penetration of the Antarctic Treaty Area’ [2008] NZYbkIntLaw 30; (2009) 6 New Zealand Yearbook of International Law, 273.

[40] Commission on the Limits of the Continental Shelf (CLCS), Outer Limits of the Continental Shelf beyond 200 Nautical Miles from the Baselines: Submissions to the Commission: Submission by New Zealand, < submission_nzl.htm> at 28 September 2009.
[41] Note number: NZ-CLCS-TPN-02 (19 April 2006), <
submissions_files/nzl06/nzl_doc_es_attachment.pdf> at 28 September 2009.
[42] Ibid.
[43] See Outer Limit of the Continental Shelf, Argentine Submission, Executive Summary, <
pdf>, at 13 December 2009, 11-16, 22.
[44] Ibid Figure 1 (Map of the Zone between the Baseline and the Outer Limit of the Continental Shelf), 17.
[45] Continental Shelf Submission of Norway with respect to Bouvetoya and Dronning Maud Land, Executive Summary, <
09/nor2009_executivesummary.pdf> at 28 September 2009.
[46] Ibid 9.
[47] Continental Shelf Preliminary Information of Chile, <
submissions_files/preliminary/chl2009preliminaryinformation.pdf> at 28 September 2009.
[48] Ibid 19.
[49] United Kingdom, Note No. 168/08 (9 May 2008), online at: <
clcs_new/submissions_files/gbr08/gbr_nv_9may2008.pdf> at 28 September 2009.
[50] Ibid.
[51] Submission by the United Kingdom of Great Britain and Northern Ireland, 11 May 2009, <> at 28 September 2009.
[52] Ibid 5.
[53] Permanent Mission of France to the United Nations, Note No.HR/cl No. 69, February 2009, <> at 28 September 2009.

[54] Australia has publicly argued that its outer continental shelf claim is neither new (it was originally made in 1953, before the Antarctic Treaty was negotiated) nor an enlargement of an existing claim. It is merely ‘the exercise of rights under international law, as reflected in UNCLOS.....’ Treaty and Government Section, Australian Antarctic Division, ‘Australia, Antarctica and the Law of the Sea: Defining the Limits of the Continental Shelf’ (Fact Sheet) December 1999. See Alan Hemmings and Tim Stephens, ‘Australia’s Extended Continental Shelf: What Implications for Antarctica?’ (2009) 20 Public Law Review 11.

[55] The author is grateful to Alan Hemmings for pointing this out. Tensions might arise, however, out of Australia’s extended continental shelf claims made around Antarctic and sub-Antarctic islands that penetrate south of 60º South Latitude, the ambit of the Antarctic Treaty. See Hemmings and Stephens, ‘Reconciling Regional and Global Dispensations,’ above n 39.
[56] 1982 UNCLOS, art 5.
[57] Antarctic Treaty Consultative Meeting XXXII, Washington Ministerial Declaration on the Fiftieth Anniversary of the Antarctic Treaty, Washington, DC, 6 April 2009, <> at 28 September 2009.
[58] The literature on bioprospecting in Antarctica has been considerable over the last seven years. See, e.g., D S Nichols et al, ‘Bioprospecting and Biotechnology in Antarctica’ in J Jabour-Green and M Haward (eds), The Antarctic: Past, Present and Future, Antarctic CRC Research Report number 28, (2002), 85-102; J Jabour-Green and D Nichols, ‘Bioprospecting in Areas Outside National Jurisdiction; Antarctica and the Southern Ocean’ (2003) 4 Melbourne Journal of International Law, 77; Sam Johnson and Dagmar Lohan, The International Regime for Bioprospecting: Existing Policies and Emerging Issues for Antarctica, submitted as a review paper by United Kingdom/Norway to the XXVI ATCM (Madrid, 2 – 20 June 2003) (IP 075, 2003); Dagmar Lohan and Sam Johnson, Bioprospecting in Antarctica (UNU-IAS Report, 2005); Donald Rothwell, ‘Southern Ocean Bioprospecting and International Law,’ in Alan D Hemmings and Michelle Rogan-Finnemore (eds), Antarctic Bioprospecting (2005), 211. Sarah A Laird, Rachel Wynberg and Sam Johnson, Recent Trends in the Biological Prospecting, submitted as an information paper by Belarus / UNEP to the XXIX ATCM (Edinburgh, 12 – 23 June 2006) (IP 116, 2006); B P Herber, ‘Bioprospecting in Antarctica: The Search for a Policy Regime’ (2006) 42 Polar Record 139; Alan D Hemmings and Michele Rogan-Finnemore, ‘Access, Obligations, and Benefits: Regulating Bioprospecting in the Antarctic’, in Michael I Jeffery, Jeremy Firestone, and Karen Bubna-Litic (eds), Biodiversity Conservation, Law + Livelihoods: Bridging the North-South Divide (2008), 529; A Guyomard, ‘Bioprospecting in Antarctica: A New Challenge for the Antarctic Treaty System’ in Francesco Francioni and Tullio Scovazzi, (eds), Biotechnology and International Law (2006); and Alan D Hemmings, ‘Biological Prospecting in the Antarctic Treaty Area’, paper prepared for the Intergovernmental Meeting of Experts on Biological Prospecting in the Antarctic Treaty Area, 3-5 February, 2009, Baarn, The Netherlands, 3-5.
[59] See, eg, D N Thomas and G S Dieckmann, ‘Antarctic Sea Ice - A Habitat for Extremophiles’ (2002) 295 Science 641; and P B Price ‘Microbial Life in Glacial Ice and Implications for a Cold Origin of Life’ (2007) 59 FEMS Microbial Ecol., 217.
[60]See, eg, C-H C Cheng, P A Cziko, and C W Evans, ‘Nonhepatic Origin of Notothenioid Antifreeze reveals Pancreatic Synthesis as Common Mechanism in Polar Fish Freezing Avoidance’ (2003) 103 Proceedings of the National Academy of Sciences, 10491.
[61] See the discussion in Dagmar Lohan and Sam Johnson, UNU-IAS Report: Bioprospecting in Antarctica (2005) 7-13, <> at 29 September 2009.
[62] Belgium, An Update on Biological Prospecting in Antarctica, Including the Development of the Antarctic Biological Prospecting Database, (WP 11) (2008) submitted to the XXXI ATCM (Kyiv, 2 – 13 June 2008). [Hereinafter Antarctic Bioprospecting Database]. While krill attracts the largest attention, the remainder is applied to a variety of Antarctic biota which includes micro-organisms, invertebrates (eg, sponges), vertebrates (eg, fish) and plants (eg, algae). About 56 percent of the database entries are marine-based. Ibid 4.
[63] Ibid 4.
[64] Ibid 7.
[65] Biological Prospecting in Antarctica: Compliance Is the Next Step, ECO No. 3 April 6-17, 2009, 2 (author file). Amongst the companies involved in commercially-oriented research on and development of genetic resources in Antarctica are: A/F Protein Inc, Agriculture Victoria Serv Pty, Angulas Anguinaga, Antarctic Pharma AB, Aqua Bounty Technologies, Arunachal University, Benares Hindu University, Biozyme Systems Inc., Centre National de la Recherche Scientifique, Clarins, Council of Scientific and Industrial Research, Daicel Chem, Daiwa Kasei, DSM NV, Good Humor-Breyers Ice Cream, Green Blueprint International, Henkel, Institute of Advanced Industrial Science & Technology, Kang Jae Shin, Kao Corp, Kansai University, Katayama Tarou, Korea Food Research Institute, Korea Ocean Research and Development Institute, Landcare Research, Lipotec S.A., Ljakh Pavlovna, Loders-Croklaan BV, Lu Gao, Magellan BioScience, Molecular Plant Breeding CRC, Morski Inst Rybackis, Nagata Sangyo, Neptune Technologies & Bioress, New England Biolabs, New Mexico Tech Research Foundation, Nichiwa Sangyo, Nihon Nosan Kogyo, Nippon Paper Industries, Nippon Suisan Kaisha Ltd, Novo Nordisk, Nomura Nobuhiko, Novozymes A/S, Phairson Medical Inc., PharmaMar, Pharmanutrients, Puratos Naamloze Vennootschap, Regents of the University of California, Rigel Pharmaceuticals Inc, Shin Dong Bang Corporation, Symrise, Third Institute of Oceanography SOA, Tokuyama Corp, Tokyo University of Science, Transucrania, Unilever, Université de Liège, University of Chile, University of Shanghai, University of South Florida, Verenium and ZyGEM. Source: Antarctic Bioprospecting Database, Ibid 8-9.
[66] Antarctic Bioprospecting Database, Ibid 8.
[67] SCAR, Scientific Research in Antarctica, (IP 123, 1999) submitted to the XXIII ATCM (Lima, 24 May – 4 June 1999).
[68] UK, Biological Prospecting in Antarctica (WP 93, 2002) submitted to the XXV ATCM (Warsaw, 10 – 20 September 2002).
[69] New Zealand, Bioprospecting in Antarctica, An Academic Workshop, (IP 47, 2003) submitted to the XXVI ATCM XXVI (Madrid, 9 – 20 June 2003) and UK and Norway, Bioprospecting, (IP 75, 2003) submitted to the XXVI ATCM (Madrid, 9 – 20 June 2003).
[70] Final Report of the Committee on Environmental Protection (CEP VI) (2003) [178].
[71] Final Report of the Twenty-Seventh Antarctic Treaty Consultative Meeting (Cape Town, 24 May – 4 June 2004), Annex K
[72] UNEP, Industry Involvement in Antarctic Bioprospecting, (IP 106, 2004) submitted to the XXVII ATCM (Cape Town, 24 May – 4 – 17 June 2004).
[73] New Zealand and Sweden, Biological Prospecting in Antarctica, (WP 13, 2005) submitted to the XXVIII ATCM (Stockholm, 6 – 17 June 2005).
[74] Spain, Biological Prospecting in Antarctica, (IP-08-ES, 2005) submitted to the XXVIII ATCM (Stockholm, 6 – 17 June 2005) and UNEP, Recent Developments in Biological Prospecting Relevant to Antarctica, (WP 93, 2005) submitted to the XXVIII ATCM (Stockholm, 6 – 17 June 2005).
[75] Resolution 7, XXVIII ACTM (2005).
[76] Ibid.
[77] Argentina, Argentine Activities of Bioprospecting and Bioremediation in Antarctica, (IP-112, 2006) submitted to the XXIX ATCM (Edinburgh, 12 – 23 June 2006). Argentina has been the only ATCP government to report to an ATCM on its bioprospecting activities.
[78] France, In Search of a Legal Regime for Bioprospecting in Antarctica, (IP 13, 2006) submitted to the XXIX ATCM (Edinburgh, 12 – 23 June 2006) and UNEP, Recent Trends in the Biological Prospecting, (IP 116, 2006) submitted to the XXIX ATCM (Edinburgh, 12 – 23 June 2006).
[79] UNEP, Biological Prospecting in Antarctica: Review, Update and Proposed Tool to Support a Way Forward, (IP-067, 2007) submitted to the XXX ATCM (New Delhi, 30 April – 11 May 2007).
[80] Netherlands, Belgium and France, Biological Prospecting in the Antarctic Treaty Area - Scoping for a Regulatory Framework (WP-036, 2007) submitted to the XXX ATCM (New Delhi, 30 April – 11 May 2007).
[81] Belgium, An Update on Biological Prospecting in Antarctica, above n 62.
[82] Netherlands, Report of the ATCM Intersessional Contact Group to examine the issue of Biological Prospecting in the Antarctic Treaty Area, (WP-4, 2008) submitted to the XXXI ACTM (Kyiv, 2 – 12 June 2008).
[83] Resolution 9 (2009) Collation and Use of Antarctic Biological Material.
[84] 1959 Antarctica Treaty, arts I-III.
[85] 1959 Antarctic Treaty, arts III(1)(a)-(c).
[86] 1959 Antarctic Treaty, art I.
[87] 1980 CCAMLR, art I(1).
[88] 1980 CCAMLR, art II(1).
[89] 1980 CCAMLR art II(3)(a).
[90] 1980 CCAMLR art XX(1) and (2).
[91] The author is grateful to Alan Hemmings for elucidating these points.
[92] Alan Hemmings and Michele Rogan-Finnemore, ‘Access, Obligations, and Benefits’ above n 58, 537.
[93] The Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (in force 29 December 1993) defines ‘genetic resources’ as ‘genetic material of actual or potential value’ and ‘genetic resources’ as ‘genetic material of actual or potential value’ (art II).
[94] With the conspicuous exception of the United States, all of the other Antarctic Treaty states—claimants and non-claimants—are parties to the Convention on Biological Diversity.
[95] Art 3.1 of Environmental Protocol to the Antarctic Treaty; Netherlands, Report of the ATCM Intersessional Contract Group to Examine the Issue of Biological Prospecting in the Antarctic Treaty Area, ATCM 17 WP 4, ATCM XXXI (2-13 June 2008), 5, <http://www.bioprospector.
org/bioprospector/Resources/actm/Atcm31_wp004_e.pdf> at 29 September 2009.
[96] Interestingly, neither India nor Brazil have been active participants in the Antarctic bioprospecting debate, even though in the past they have been leading advocates for greater equity on other issues. The author is grateful to Alan Hemmings for making this point.
[97] But Alan Hemmings has opined that, ‘I wouldn’t dispute the sense in looking for useful technical fixes, but it has seemed to me that as the last ATS instrument of the Cold War period, CRAMRA suffers from a central and possibly fatal flaw in relation to subsequent use as a model – that is that the sort of relationship conceived as possible between the operator and a sponsoring state now seems much more problematical’ - Personal communication with the author, 4 October 2009.
[98] 1988 CRAMRA, art 1(7). In CRAMRA ‘prospecting’ is defined as ‘activities, including logistic support, aimed at identifying areas of mineral resource potential for possible exploration and development, including geological, geochemical and geophysical investigations and field observations, the use of remote sensing techniques and collection of surface, seafloor and sub-ice samples’ (art 1(8)).
[99] 1988 CRAMRA, art 21(1)(e).
[100] 1988 CRAMRA, art 37(1).
[101] 1988 CRAMRA, art 37(2).
[102] 1988 CRAMRA, art 37(2)(b).
[103] 1988 CRAMRA, art 37(4).
[104] 1988 CRAMRA, art 37(7).
[105] 1988 CRAMRA, art 37(7).
[106] International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 74 (entered into force 10 November 1948). [Hereinafter ICRW] In 2009, there are 88 parties to the ICRW, including Japan, Australia and the United States.
[107] 1946 ICRW, preamble.
[108] 1945 ICRW, arts II, IV, V, and VI.
[109] On 23 July 1982, members of the IWC voted by the necessary three-quarters majority to implement a pause on commercial whaling: ‘Not withstanding the other provisions of paragraph 10, catch limits for the killing for commercial purposes of whales from all stocks for the 1986 coastal and the 1985/86 pelagic seasons and thereafter shall be zero. This provision will be kept under review, based upon the best scientific advice, and by 1990 at the latest the Commission will undertake a comprehensive assessment of the effects of this decision on whale stocks and consider modification of this provision and the establishment of other catch limits.’ Schedule to the Convention, paragraph 10(e), online: < commission/schedule.htm> at 6 October 2009. The vote was 25 in favor, 7 opposed, with 4 abstentions. Member governments voting in favour of the moratorium included Antigua, Australia, Belize, Costa Rica, Denmark, Egypt, France, Germany, India, Kenya, Mexico, New Zealand, Oman, St. Lucia, St. Vincent, Senegal, the Seychelles, Spain, Sweden, the United Kingdom and the United States. The seven governments voting in opposition were Brazil, Iceland, Japan, Norway, Peru, South Korea and the Soviet Union. Chile, China, the Philippines, South Africa and Switzerland abstained.
[110] See IWC, Whale Sanctuaries: Establishment of the International Whaling Commission's Sanctuaries <> at 6 October 2009. At its 46th (1994) Annual Meeting, the IWC adopted the Southern Ocean Sanctuary as an area in which commercial whaling is prohibited. In this regard see also International Fund for Animal Welfare, The Southern Ocean Sanctuary <> at 6 October 2009. Japan was the only IWC member that voted against the Sanctuary, which is ‘designed to allow the natural restoration of an ecosystem devastated by commercial whaling.’
[111] As art VIII of the ICRW provides in relevant part:

1. Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.
2. Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance with directions issued by the Government by which the permit was granted.
See also International Whaling Commission, Catches Taken Under Scientific Permit: List of Special Permit Catches Since 1985 (Table), <
permit.htm> at 4 October 2009. Japan issues a scientific whaling permit to itself each year since the moratorium was implemented in 1986. Ibid. Japan’s scientific whaling research is conducted by the Institute of Cetacean Research (ICR), a privately-owned, non-profit institution. The institute receives its funding from government subsidies and Kyodo Senpaku, which handles processing and marketing of research ‘byproducts.’ See Institute of Cetacean Research <> at 8 October 2009.
[112] In response to the charge that this is commercial whaling in disguise, Japan has provided the following response: ‘This characterization is part of the anti-whaling rhetoric. In fact, the purpose of Japan’s research is science – science that will ensure that when commercial whaling is resumed it will be sustainable. From 1987 to 2006, Japanese scientists presented 182 scientific documents to the Scientific Committee of the International Whaling Commission (IWC) and had 91 papers published in peer-reviewed journals. The most recent review of JARPA by the IWC’s Scientific Committee in December 2006 made a number of recommendations for additional data analysis and concluded that ‘the dataset provides a valuable resource to allow investigation of some aspects of the role of whales within the marine ecosystem and that this has the potential to make important contribution to the Scientific Committee’s work in this regard as well as the work of other relevant bodies such as the Convention for the Conservation of Antarctic Marine Living Resources’. The Scientific Committee also agreed to its earlier (1997) conclusion that the results from the research program ‘have the potential to improve management of minke whales in the Southern Hemisphere.’ See Japan’s research whaling in the Antarctic <
FAQResearch.pdf> at 6 October 2009 (footnote omitted).
[113] Tim Stephens and Donald R. Rothwell, ‘Japanese Whaling in Antarctica: Humane Society International Inc. v. Kyodo Senpaku Kaisha Ltd(2007), 16 Review of European Community and International Environmental Law, 243.
[114] Ibid.
[115] Ibid.
[116] Resolution on JARPA II, IWC Res. 2005-1 (2005) <
resolutions/Resolution2005-1.pdf> at 6 October 2009.
[117] IWC, Scientific Permit Whaling (Antarctic 2-JARPA II) <
conservation/permits.htm#jarpa> at 6 October 2009. The research methods for cetaceans for JARPA II are similar to those for JARPA. As reported to the IWC, the non-lethal research techniques to be used include sighting surveys, biopsy sampling, acoustic surveys for prey species and the collection of oceanographic data. Ibid.
[118] See Jonah Fisher, ‘Diary: Jonah and the Whale-Chasers,’ BBC News, 28 January, 2008, <> at 6 October 2008. This article describes in detail events during January 2008 between the Japanese whaling fleet and the anti-whaling activist groups, Greenpeace and Sea Shepherd.
[119] Peter Heller, ‘Japan’s Whaling Shame,’ Los Angeles Times, 3 December 2007, A17 <> at 6 October 2009. See also ‘Anger over Whale Pet Food Claims’, BBC News, 16 February 2006, <
nature/4700418.stm> at 6 October 2009.
[120] See List of Special Permit Catches Since 1985, above n 111 that lists the numbers of whales killed by Japan each year under scientific research permits.
[121] See International Whaling Commission, Scientific Permit Whaling (North Pacific (2) - JARPN II) <> at 6 October 2009, which discusses previous rejections of the Japanese scientific whale research programmes.
[122] Ibid. See also IWC resolutions 1987-1, 1994-10, 1995-8, 1996-7, 1997-5, 1998-4, 1999-3, 2000-4, 2001-7, 2003-2 and 2005-1 <> at 6 October 2009.
[123] Resolution on JARPA, IWC Res. 2007-1 <
Resolution2007-1.pdf> at 6 October 2009. This pronouncement expressed the IWC’s unease about the program and its scepticism about its supposed scientific research purposes. It particularly condemned its extension to include fin whales and humpback whales and the doubling of the take for minke whales. The resolution concluded with a call for Japan to indefinitely halt implementation of the lethal components of JARPA II and ‘to address the 31 recommendations listed in Appendix 4 of Annex O of the Scientific Committee report relating to the December 2006 review of the JARPA I programme to the satisfaction of the Scientific Committee.’ Ibid. New Zealand proposed the resolution and numerous other countries sponsored it, including Australia, Great Britain, and the United States. IWC, 59th Annual Meeting of the IWC, Anchorage, U.S., 18-31 May 2007, Agenda Item: Resolution on JARPA, Doc. IWC/59/27 (29 May 2007) (prepared by the Government of New Zealand) <> at 7 October 2009. The resolution received 40 votes in favour, 2 against, with 1 abstaining. Japan and 26 other states refused to participate in the process on grounds they believed the resolution was contrary to their efforts to ‘normalize’ whaling within the IWC. See Conference on Normalization of the International Whaling Commission, Tokyo, Japan, 13-15 February 2007, Chair's Summary, Doc. IWC-M08-INFO2, 1 <
commission/future/IWC-M08-INFO2.pdf> at 7 October 2009. On the concept of ‘normalization,’ see Michael Bowman, ‘“Normalizing” the International Convention for the Regulation of Whaling’ (2007 – 2008) 29 Michigan Journal of International Law 293; Mike Diff, ‘Normalization of the International Whaling Commission,’ (2008) 32 Marine Policy, 333.
[124] Whale Protection Act 1980 (Australia), section 9.
[125] The AFZ was demarcated as those waters adjacent to Australia and its external territories out to 200 nautical miles, but excluding ‘excepted waters’ or internal or coastal waters of a state. Fisheries Management Act 1991 (Australia), section 4(1) and Fisheries Amendment Act 1978 (Australia), section 3.
[126] Whale Protection Act 1980 (Australia), section 6(2).
[127] Ibid section 6(3).
[128] It is also a fair presumption that jurisdiction over non-Australians would also have to be in accord with rules established by the Antarctic Treaty System.
[129] 1982 UNCLOS, Part V (articles 55- 75).
[130] Proclamation by the Governor-General under s 10B of the Seas and Submerged Lands Act
1973 (Cth) on 29 July 1994, to include waters within 200 nautical miles from the baselines established under international law of the external Territories, Commonwealth Gazette No. S 290, Friday, 29 July 1994. The proclamation was declared to commence on 1 August 1994.
[131] Maritime Legislation Amendment Act 1994 (Australia), schedule 1.
[132] Ibid.
[133] Environment Protection and Biodiversity Conservation Act 1999 (Australia) [Hereinafter EPBC Act]. See Chris McGrath, ‘Flying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest,’ (2008) 25 Environmental and Planning Law Journal, 324.
[134] EPBC Act, section 3(2)(e)(ii).
[135] Ibid section 225(1).
[136] Ibid sections 229-230. An offense is punishable by up to two years imprisonment or a fine not to exceed 1000 penalty units [i.e. AU$110,000], or both. Ibid section 229(2).
[137] Ibid section 5(4).
[138] Humane Society International Inc. v. Kyodo Senpaku Kaisha Ltd. (2008) 165 FCR 510, 525 (Australia). The case history is protracted. See Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. [2004] FCA 1510 (initial application to serve originating process in Japan and invitation to Attorney-General (AG) to intervene); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. [2005] FCA 664 (27 May 2005) (dismissal of application following AG intervention); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. (2006) 154 FCR 425 (appeal order setting aside the dismissal and granting leave to serve process); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. [2007] FCA 124 (16 February 2007) (order allowing substituted service of process)(unreported); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. [2008] FCA 3 (15 January 2008) (final judgment issuing declaration and injunction); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd. [2008] FCA 36 (18 January 2008) (order granting leave for substituted service of the final judgment)(unreported). See Donald K Anton, False Sanctuary: The Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica, (Cornell Law School Berger International Speaker Papers, 2008, 6, n 22 <
cgi/viewcontent.cgi?article=1007&context=biss_papers> at 8 October 2009.
[139] Humane Society International Inc. v. Kyodo Senpaku Kaisha Ltd. (2008) 165 FCR 510, 525.
[140] HSI argued that Antarctica’s offshore waters comprised part of Australia’s EEZ; hence, any Japanese whaling within that area came under Australian authority. Ibid. The Australian court agreed, as it concluded that Australia’s EEZ ‘extends to the waters adjacent to the baseline of Australia's external territories, including, importantly for this matter, the Australian Antarctic Territory.’ Ibid, 516.
[141] Ibid.
[142] Ibid.
[143] Ibid 525-26.
[144] Ibid.
[145] For a fuller discussion of the accounting of the Humane Society case, see Donald K Anton, ‘20-Ton Canaries: The Great Whales of the North Atlantic Symposium: Symposium article: Antarctic Whaling: Australia’s Attempt to Protect Whales in the Southern Ocean,’ (2009) 36 Boston College Environmental Affairs Law Review, 319; Ruth Davis, ‘Enforcing Australian Law in Antarctica: The HIS Litigation,’ (2007) 8 Melbourne Journal of International Law, 143; Chris McGrath, ‘The Japanese Whaling Case,’ (2005) 22 Environmental and Planning Law Journal 250; Chris McGrath, ‘Japanese Whaling Case Appeal Succeeds’ (2006) 23 Environmental and Planning Law Journal 333; Joanna Mossop, ‘When is a Whale Sanctuary Not a Whale Sanctuary? Japanese Whaling in Australian Antarctic Maritime Zones,’ (2005) 36 Victoria University of Wellington Law Review, 757.
[146] See Justin McCurry, ‘Activists Claim Rough Tactics in Battle with Japanese Whalers, The Guardian, 16 January 2008 <
conservation> at 9 October 2009. Tomohiko Taniguchi, a foreign ministry spokesman, asserted that, ‘[i]t is impossible for the Japanese government to accept the Australian court's ruling. As far as we are concerned, Japan's whaling activities are taking place in international waters and under a legal framework set out by the International Whaling Commission’. Ibid.
[147] The only governments that formally recognize Australia’s claim of sovereignty to the continent are four other claimants, the United Kingdom, New Zealand, Norway and France.
[148] Antarctic Treaty, art VI.
[149] Christopher C Joyner, Antarctica and the Law of the Sea, (1992), 75.
[150] For an assessment of confrontations between the Sea Shepherd Society and Japanese whaling fleet, see Raffi Khatchadourian, ‘Neptune's Navy,’ The New Yorker, 5 November 2007, 9, <> at 9 October 2009. For the account of two Sea Shepherd protesters taken into custody aboard a Japanese whaling vessel in the Antarctic, see ‘Japanese Detain Whaling Activists’, BBC News, 15 January 2008 <> at 9 October 2009.
[151] Sea Shepherd Conservation Society, Sea Shepherd FAQ: Commentary by Captain Paul Watson, 19 January 2008, online: <> at 9 October 2009, and Tom Zeller Jr., ‘High Anti-Whaling Drama on High Antarctic Seas,’ New York Times News Blog, 7 February 2007 <http://thelede.blogs.nytimes.
com/2007/02/09/high-anti-whaling-drama-on-high-antarctic-seas/> at 9 October 2009. For a recent thoughtful assessment of the international legal implications of these environmental activists’ actions, see Joseph Elliott Roeschke, ‘Eco-Terrorism and Piracy on the High Seas: Japanese Whaling and the Rights of Private Groups to Enforce International Conservation Law in Neutral Waters’. (2009) 20 Villanova Environmental Law Journal 99.
[152] Xavier La Canna, ‘Japanese Whalers “Fear Aussie Arrest”’ The Age, 12 Jan. 2009 <> at 4 October 2009.
[153] Pete Thomas, ‘Japan’s New Government Stands by Whaling, Not Eager for Bout with Sea Shepherd’, Los Angeles Times, 23 September 2009 <
2009/09/whale-war-.html> at 5 October 2009. Japan formally asked Australia to keep anti-whaling activists and their ship, the Steve Irvin, from refueling at Australian ports. The Japanese Whaling Association branded Sea Shepherd Society a terrorist group after 26 December 2008, when the Steve Irvin rammed the Kaiko Maru, a Japanese whaling ship. Meraiah Foley and Mark McDonald, ‘Japan Seeks Australia’s Help to Thwart Whaling Opponents,’ New York Times, 7 January 2009 <
/07whale.html> at 5 October 2009.
[154] 1959 Antarctic Treaty, art VI.
[155] 1991 Environmental Protocol, art 3. See the insightful analysis on Japan’s scientific whaling program by the Independent Panel of Legal and Policy Experts (The Canberra Panel): Japan’s ‘Scientific’ Whaling Program and the Antarctic Treaty System, Independent Panel of Legal and Policy Experts: Report of the Canberra Panel, 12 January 2009 <
Media_Center/Press_Releases/asset_upload_file187_51771.pdf> at 5 October 2009.
[156] 1991 Environmental Protocol, art 3(2)(b) (iv)-(vi).
[157] 1959 Antarctic Treaty, preamble.
[158] Article VI of CCAMLR provides that, ‘Nothing in this Convention shall derogate from the rights and obligations of Contracting Parties under the International Convention for the Regulation of Whaling and the Convention for the Conservation of Antarctic Seals.’

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