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French, Duncan --- "Global Principles, Universal Values and the ATS: regime Integrity as Antarctic Security" [2008] NZYbkIntLaw 19; (2008) 6 New Zealand Yearbook of International Law 63

Last Updated: 7 February 2019

GLOBAL PRINCIPLES, UNIVERSAL VALUES AND THE ATS:
REGIME INTEGRITY AS ANTARCTIC SECURITY

Duncan French^[∗]

I. INTRODUCTION

The purpose of this paper is to consider the relationship between the Antarctic Treaty System (ATS)^[1] and the application and relevance of certain global principles and values. The positioning of the ATS within international law, international governance and global policy-making is, of course, a well-trodden road. Such discussions range from a narrow positivist focus on rules (i.e. on inter-relationships between the various Antarctic conventions and other international norms),^[2] a broader consideration of competing regimes (most famously between the ATS and the UN in the 1980s)^[3] and, perhaps of more recent origin, inter-linkages between global issues and regional challenges (one might mention, for instance, climate change and bioprospecting, both of which are currently subject to international negotiations, as well as raising specific regional considerations).^[4]
This paper, whilst utilising these connections, takes concurrently both a broader and narrower approach to its subject-matter. Narrower – because it focuses exclusively upon a number of select principles, rather than international law and global policy at the systemic level. And broader – because it ranges beyond legal rules to consider also normative values and other extra-legal considerations; what this paper refers to as certain meta-principles. The meta-principles selected are global justice, sustainable development and, as discrete notions thereof, conservation and sustainability. Due to limitations of space, this paper will not detail the application and relevance of these meta-principles to Antarctica, but rather provides the generic framework which will then be used, at a subsequent point, to take the analysis of these meta-principles further. However, to give some sense of how this might work, there is a brief discussion of global justice and its putative relevance to the Antarctic Treaty System (ATS) – this particular theme being chosen to highlight both the relevance and the complexity of the interaction between an – arguably amorphous – principle and a designated political regime.

II. META-PRINCIPLES AND ANTARCTICA: DEMARCATING THE SCOPE

It might be worth noting what the paper will not be saying. First, the paper will not be saying that these principles should displace or dislodge the Antarctic-specific principles that have guided the ATS – very successfully – since its inception. The exclusively peaceful nature of the Antarctic,^[5] its demilitarization,^[6] its principal – though perhaps no long singular – focus on science^[7] and, since the 1991 Madrid Protocol to the 1959 Antarctic Treaty,^[8] its designation as a ‘natural reserve, devoted to peace and science.’^[9] Second, the paper will not assert that these meta-principles can be applied deterministically, as if they should somehow prescribe the future direction of the ATS. As I seek to show, notions such as sustainability and justice have a great deal to say about the operation of the ATS, but that is a long way from suggesting that they should be used unquestionably or in a way which pre-ordains political action and normative choice. Related to this, third, the paper does not even presume to go so far as to say that any of these principles have acquired any form of objective normative status that demands compliance by regional regimes. Questions of legal status of such principles are, of course, important, but arguably secondary to their normative impact.
Nor, fourth, will the paper be saying that these principles can be understood atomistically; that each principle can be separated into neat and discrete elements, with each element being used to subject the current Antarctic regime to detailed scrutiny. As I will note below, there is (still) a high degree of conceptual uncertainty behind many of these principles. And though that is part of their conceptual charm and political strength, it also prevents any kind of systematic approach, whereby the ATS can be assessed against the minutiae of each and every principle. And finally fifth, the paper is not – by discussing global values – suggesting a move away from Antarctic exceptionalism to something significantly more generic, and perhaps normatively blander. This is what Alan Hemmings has referred to as ‘the alternative of Antarctica being passively driven by global norms, despite these being manifestly problematical in Antarctica because they have evolved in different parts of the world’.^[10] I agree; the physical, biological and political uniqueness of Antarctica cannot be submerged within the global mass as if the continent’s differences can purely be put down to simply being a slightly different – perhaps more extreme – variant of what exists elsewhere.
However, there is a distinction between making Antarctica part of the ‘general’ and divorcing the ‘general’ completely from Antarctica. As a politico-legal enterprise, the ATS as a body is capable of institutional learning and the Antarctic Treaty Consultative Parties (ATCPs), especially, as its guardians, should equally be able – both individually and corporately – to acknowledge the relevance of autonomous principles in shaping their political and national positions. This is not to say that I do not believe that there are reasonably cogent arguments to revisit the structural position and operational functionality of the ATS as an over-arching polar regime, and the Antarctic Treaty Consultative Meetings (ATCMs) as its principal manifestation but probably, as with most commentators, I suspect that the ATS is a long way away from being superseded by anything more radical, or should that be more mundane. Moreover, and purely as an aside, is there not a real risk of picking apart the current regime for the speculative benefits of something better?
So what am I saying? My principal argument is that notwithstanding significant ambiguity within the three meta-principles identified, each of these principles has a pertinence both to the ideals underlying, as well as the operation of, the ATS. These principles highlight certain key themes, which the ATCPs, in particular, should bear in mind in fulfilling their legal commitments under the various ATS treaties, as well as their political responsibilities as global trustees of the Antarctic environment. These themes include, but are not limited to, the importance of maintaining legitimacy in how decision-making occurs, achieving perceptibly fair outcomes as a consequence, continuing to prioritise environmental protection and nature conservation over human activity, and ensuring extensive participation of a wide range of actors, both state- and non-state in character, within the ATS. This may seem a list of the rather obvious, and to some extent it is; but it is still nevertheless important to enquire, for instance, whether and to what extent the institutions of the ATS act fairly, transparently and legitimately in the conduct of their business, or whether and to what extent they prioritise environmental protection in the way that they should. This is not a move away from Antarctic exceptionalism, but recognition that there are a range of core “values” – for want of a better term – that we have begun to expect to see at the international level, and which should, to a greater or lesser extent, be embedded within the diversity of global organisational forms, including the ATS. Some of this may be phrased as incorporating aspects of good governance within the ATS, but this is only one aspect of a much broader range of considerations.
Moreover, the paper will conclude that in managing future challenges in Antarctica, reliance on universal norms and principles, however putative many of these principles currently are, can ‘cement’ the role of regional regimes, such as the ATS, within the context of the global normative framework. This need for contextualising both the regional and the global will become particularly significant as the challenges facing the Antarctic are both momentous and diverse, such as the consequences of climate change, revisiting the question of mining, the likelihood (at some point) of commercial bioprospecting and the question of how to better regulate non-State (including both non-Party and non-Party non-State) activity in Antarctica, most notably tourism. Nevertheless, the relevance of such principles is not that they somehow reflect ipso facto symbolic truths, but that they can frame a political discourse in which Antarctic governance can concurrently be both contested and defended within the wider international community. Such principles might also influence the policy, political, and ultimately normative, debate; not in a deterministic manner, but in a way which shapes the choices that have to be made. This will only occur, however, when the necessary political will exists. Moreover, though the ATS may not be free from (valid) criticism or be immutable from political pressure to change (both from within, but more so without), it is at least not unreasonable to argue that the ATS will be better able to withstand alternative claims to both its legality and its legitimacy if it is seen to be acting in accordance with, rather than contrary to, certain basic global precepts.

III. META-PRINCIPLES: MAKING CONNECTIONS BETWEEN THE GLOBAL AND THE REGIONAL

A few words about meta-principles may be useful at this point.^[11] A meta-principle is defined here as referring to both its universal geographical scope and, equally significant, the overarching conceptual reach of its subject-matter. A meta-principle is also arguably characterised by a high degree of ambiguity in content and meaning. An alternative perspective is to view such ideas as what one commentator has called ‘contestable concepts’. ‘Contestable concepts are complex and normative, and they have two levels of ‘meaning’. The first level is unitary but vague; it can often be expressed in a short definition...Often there will be a number of such definitions available; but neither this nor their vagueness makes such concepts meaningless or useless’.^[12] Either way, these principles reflect a macro-understanding of the world, unrelated (at least in the first instance) to the specifics of any particular context.
Global justice and sustainable development are, in particular, examples par excellence of a meta-principle; seemingly all-encompassing in nature and scale, and equally characteristic, apparently capable of incorporating an impossibly broad array of issues.^[13] Moreover, the issues that such principles incorporate are themselves increasingly global in nature; ‘[t]he threats arising from global integration are nothing new for the countries of Africa, Asia and Latin America...In recent years, however, the North has been discovering its own vulnerability – an experience it had previously been spared. Profits can no longer be had at zero cost, as the societies of the North begin to be affected by the collateral damage of globalization’. ^[14] In light of the human challenges increasingly facing the polar regions, and specifically the advent of its growing commercialisation, one can easily add Antarctica to this list.
It is, of course, axiomatic that meta-principles such as these are subject to the obvious criticism that they are inherently malleable and that they can mean virtually anything competing political actors want them to. Even for proponents of such principles, they are confronted with the perennial issue as to how one is to delineate and delimit their precise contours? As Jacobs goes on to note, ‘For common political concepts, the battle is neither over the first level of meaning nor indeed whether one accepts the normative goal. Almost everyone is in favour of democracy, liberty, and social justice; the debate is over alternative conceptions of what they mean, at the second level’.^[15]
However, ambiguity per se should not lead us to discard such principles. Political discourse is awash with the penumbra of uncertainty that surrounds many of its key ideas. Indeed, it is this uncertainty, it might be argued, which is often intrinsic to flexible political negotiation within a state-centric system; the open-textured character of such principles naturally lends itself to, as well as simultaneously prompts accusations of, conceptual indeterminacy. Nevertheless, the indeterminacy of such principles often has a useful role to play in maintaining the dynamism of political dialogue, even if such principles cannot of themselves – indeed, normatively should not – govern the actual outcome reached. And in this regard, the ATS as a model of international governance is neither immune from, nor should be viewed as not being able to benefit from, this wider discourse. As noted above, the ATS cannot be divorced completely from the ‘general’. To say otherwise, might suggest a rather-closed system, incapable or unwilling to adapt. And notwithstanding criticism of the present structures and processes, it would be difficult to argue that the ATS is quite so hermeneutically sealed in approach that it can rightly ignore the broader considerations of international society.
Nevertheless, how far such principles have influenced either Antarctic, or indeed general, politics is debatable. For some, this is evidence that a focus on principles is an overly-idealistic understanding of the reality of political life. However, there is a balance to be struck; while national interests will undoubtedly take primacy in international debate, this should not necessarily lead to a position which requires us to exclude a priori the moral perspectives and ethical values which principles introduce within, and bring to, political deliberations. Indeed, to suggest that such principles are by-and-large irrelevant to the ‘proper’ debate, indicates a rather poor reflection on, and most certainly a pessimistic view of, the ability of States to engage with overarching ideals in seeking to negotiate international public goods and other societal goals. Indeed, where one is seeking to espouse some notion of the ‘common’ or ‘global’ good, as with the stewardship of the Antarctic, it might be thought peculiar – certainly when looking from the outside in – if such principles did not have a role to play. In addition, in connection with regional regimes, the inclusion of such principles can have the additional, legitimising, function of vocalising the community interest. Thus, notwithstanding the inevitable indeterminacy surrounding such principles, their utility in being able to bring a distinctive dimension to international negotiations – though neither unquestioned nor unquestionable – should not be underestimated, either.

IV. GLOBAL JUSTICE AND ANTARCTICA: THE OVERARCHING IMPERATIVE OF FAIRNESS

The three principles chosen – global justice, sustainable development and conservation and sustainability – are all extremely pertinent to the Antarctic debate, even if the extent of their relevance is not immediately apparent. Due to limitations of space, consideration in this paper is restricted to a brief discussion of global justice, first because as a concept it is significant in and of itself and second, because it is an excellent example of how meta-principles might operate within this context. Moreover, out of the three, global justice seems the most remote from the Antarctic debate. Indeed, it is an idea that contains so much indeterminacy that there must be an overarching question as to what it means, generally.^[16] There are two facets to global justice which seem to me clearly apposite to Antarctica. The first is the close correlation between justice and fairness; and the extent to which the achievement of that which is perceived to be fair (and thus just) is dependent upon a seamless combination of both the existence of a legitimate deliberative process and the fairness of consequent outcomes reached. The second ties in with the fairness of the outcome and concerns the use (seen in some quarters as potential ‘abuse’) of Antarctic resources and the extent to which the ATCP de facto control of these resources means that the ‘justice’ question at the global level has never truly been answered. In other words, a rather old-fashioned question of allocation of resources and the economic redistribution of benefits amongst all States. The paper limits itself to the briefest of remarks on this second issue.
Thomas Franck, in his work on fairness, has highlighted the importance of both process and outcome in creating a perceptibly fair situation.^[17] For the ATS, this is a question of the first-order, going to the heart of its very existence. Despite the political and legal ingenuity of Article IV of the Antarctic Treaty, whether the Antarctic Treaty and the ATS more broadly can be considered legitimate and fair is a matter that pervades the entire discourse. This is never more acute than when focused upon the supremely contentious matter of the future distribution of Antarctic natural resources. Franck makes this link plain; ‘[t]he stewardship of Antarctica’s resources thus appears to be in the hands of a small proportion of states administering them for the benefit of the entire international community. It remains to be seen whether this arrangement will be challenged, on the one hand by a revival of dormant claims to sovereignty, and on the other by [common heritage]-based claims to universal shareholding’.^[18] Of course, it was the claimed inequity in the perceived ATCP carve-up of Antarctic mineral resources that was one of the principal causes for the demise of the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA),^[19] and resulted in its replacement by the 1991 Environmental Protocol. In the absence of commercial mining, the ‘equity’ of the international community would be best met – or at least assuaged – by a focus upon environmental preservation. This was achieved by equity being refocused onto viewing Antarctica as non-commercialised, unspoiled, ‘land of science’ where its wilderness qualities (an arguably unfortunately under-instrumentalised concept in the ATS^[20]) would play a greater role.
However, the issue of commercial mining has never really disappeared and continues to be the most obvious ‘equitable’ challenge facing the ATS.^[21] Whether the issue now arises because of a consensus to suspend the moratorium,^[22] a unilateral withdrawal from it, or the complete breakdown of the Protocol in this regard, the effect would likely be the same, namely a re-emergence of the curious amalgam of political, economic and principled arguments which surround the topic. But regardless of how the moratorium might come to an end – and as aside it is worth recalling that the Protocol’s provision on this issue was a masterly example of appearing to preclude mining indefinitely, whilst in reality doing nothing of the kind – the effect of such a shift in Antarctic affairs would be truly devastating.
Notwithstanding the enormity of the mineral resource issue, possibly of more immediate concern are the environmental and equity issues which arise around the possibility of commercial bioprospecting. Though action on the part of the ATCM has been slow, many ATCPs at least recognise the complexity and seriousness of the matter. As Chile noted in 2009, ‘[w]hile a substantial mass of information has been introduced by a number of Consultative Parties, the UN University, IUCN, ASOC and other sources, at successive ATCMs the debate has not been focused or aimed at a serious political consideration of a matter which probably represents the most serious challenge to the integrity, the nature and the relevance of the Antarctic Treaty System’. ^[23] Moreover, as Hemmings notes, talking generally about these ‘newer’ issues, the political denouement seen over minerals is unlikely to be replicated in quite the same way; ‘[t]hen, at least, the ATS was elaborating a system to regulate the activity. Intention, norms and likely mechanism were clear. With the ATS now reluctant to develop new instruments, or even legally binding mechanisms within existing instruments, the rate limiting step is often technical capacity and wealth, which is less amenable to resolution through diplomatic negotiation’.^[24] There must be a significant element of truth in this, though one should also not ignore the moral claim of non-parties.
Of course, as with mining, bioprospecting is not just about regulating access (much easier when one has territorial sovereignty it must be said), there is also the issue of ensuring fair and equitable rewards from any benefits derived. Of course, what might be considered fair and equitable in the context of national bioprospecting takes on a whole different complexion when considered in the context of areas outside national jurisdiction, be that on land or in the high seas, both of which would have significant implications for the ATS. Interestingly, Franck in the section of his work on fairness in which he discusses Antarctica seems not to acknowledge the pivotal significance of benefit-sharing, in his case with particular reference to Antarctic mining. Though he notes that the ATS, post-CRAMRA, creates a regime ‘in which, in effect, the most active participants recognize an obligation to preserve and protect the common area for the benefit of all, regulating the harvesting of renewable resources and prohibiting the exploitation of non-renewable ones’,^[25] the manifest unfairness of the unequal distribution of benefits is entirely ignored. Perhaps Franck was persuaded by the conservationist ethos of the Protocol, and a belief therefore that the issue of the distribution of benefits was a matter that died with CRAMRA. But this is to ignore not only that polar mining has not gone away as an item on commercial agendas, but that unfairness in the distribution of benefits can also arise with the occurrence of new issues, such as bioprospecting. And if these concerns become reality, so will the dormant demands for equity, especially from the global South.
Perversely, notwithstanding the enormous negative spiral that claims for resource equity will place on the Antarctic Treaty System, it might be that these very claims to equity will also politically inhibit such activity from occurring in the first place. The current absence of protest from non-parties on the question of the legitimacy of the ATS would be completely destroyed if any form of significant commercial activity were to begin in Antarctica, particularly that which was generated from the extraction of its natural resources (the rights under CCAMLR notwithstanding, which are better viewed as the exercise of general rights under the law of the sea). Though non-parties have accepted the general tenor of the current environmental focus of the ATS, there must still be a sense that they view the Protocol as a second-best option, particularly if the ATCPs were ever decide to recommence commercial mining activity. For proponents of an ecologically-preserved Antarctica, therefore, though claims to equity might prove rather strange bed-fellows with environmental conservation, politically their combined impact may nevertheless be sufficient to encourage the ATCPs to maintain the status quo, perhaps even if the inclination of some of them in the future will be to reverse the moratorium.

V. CONCLUSION

Thus, to conclude, though there is a strong suggestion, as evidenced by the discussion of global justice above, that meta-principles can be given effect within the ATS, this should not be taken to suggest that these principles are now somehow fully operational within the ATS. It is certainly the case that despite notable strengths, the current rules and processes in place are far from perfect. The rather slow response of the ATCMs to tackling tourism,^[26] the increasing concerns over the limitations in environmental regulation within the Madrid Protocol’s Annexes and a perception of growing divergence between the number of legislative measures being adopted and the rate of implementation thereof are just three examples which indicate that the ATCPs need to improve their regulatory and compliance performance, both individually and collectively, if they are to incorporate more fully the ideas contained within the three meta-principles of this wider project, namely sustainable development and sustainability and conservation, as well as global justice.
This dichotomy between rhetoric and aspiration, on the one hand, and political reality, on the other, has the potential to become ever more stark as the ATS is confronted with the scope of the challenges facing Antarctica in the forthcoming decades. These challenges are both diverse and significant; they range from the global (ie. climate change),^[27] the commercial (ie. bioprospecting, tourism) and the political (i.e. questions relating to the continuing hegemony, particularly, of the ATCPs).
It must, of course, be conjecture as to what influence principles such as those identified have had – and will have – on how ATCPs tackle these contentious topics. Certainly, it is almost empirically impossible to test their weight in this regard. But that is perhaps not the point; what I am suggesting is that these principles have a normative value which should be reflected, in some form, in the ATCM response to the current challenges facing Antarctica. Moreover, though such principles cannot displace the underlying values of the ATS, they can – and arguably should – influence the political dialogue and remind the ATCPs, in particular, of some of the underlying themes that they might bear in mind when fulfilling their legal commitments under the various ATS treaties, as well as their political responsibilities as global trustees of the Antarctic environment. This is, in many ways, an intuitive response to the special position of the ATCPs; it is beyond argument that they have a sui generis role, both within the ATS and, consequently, the international community. But this self-created vision of the ‘consultative party’ cannot be without limitation and guide. Such limitation and guide will inevitably be part formulated by the terms of the Antarctic Treaty itself, but part also perhaps by reference to general principles as a secondary factor. In particular, such principles can assist in helping the ATCPs themselves decide how they should act, both as unilateral actors and as a corporate entity.
Moreover, as such meta-principles are often taken to reflect broader societal values, if the ATCPS are seen to be guided by them, it may also have the important consequence of more firmly entrenching – and thus legitimising – the ATS within the context of the global politico-legal framework. Nevertheless, the significance of such principles is not that they somehow contain absolute truths, but that they frame a political discourse in which Antarctic governance can concurrently be contested, and perhaps also defended, both within the growing ATS membership as well as within the wider international community, both governmental and civil society. In other words, seeking to incorporate notions of conservation and sustainability, sustainable development and global justice with the Antarctic regime will not save Antarctica from the challenges confronting it – it may not even be able prevent the overarching question of the political survival of the ATS from itself eventually resurfacing – but what it may do is to provide a general rationale to the particular conceptual foundations of the regime. In that sense, this recourse to general principle within the ATS would arguably assist in its long-term integrity or, in the words of the colloquium in which this paper was first presented, ‘regime security’. Or, in the words of the 2009 ATCM XXXII Washington Ministerial Declaration, it would help the ATCPs to live up to their commitment to ‘continue and extend for the benefit of all humankind their cooperation established in the Treaty and in the Treaty system over the last fifty years’.^[28]
This, of course, demands political will, especially from the lead actors. But if the abstract nature of ideals, values and principles does little to motivate them, perhaps the self-interest of protecting their dominant position in Antarctic affairs (whether they expressly acknowledge they possess this or not) will. Significantly, such a position only possesses legitimacy so long as it is perceived as valid and recognised as such by others. Meta-principles are purposively idealistic, but to the extent that they also might solidify the status of the ATCPs as Antarctica’s trustees and the ATS as the paradigmatic regime, they are also contemporaneously highly pragmatic and politically apposite.

^[∗] Professor of International Law, University of Sheffield. 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 my attendance at this Colloquium.
^[1] The Antarctic Treaty System refers to the 1959 Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961), its associated instruments and relevant measures and decisions adopted under the auspices of these instruments.
^[2] See for example Christopher Joyner, Antarctica and the Law of the Sea (1992); Arthur Watts, International Law and the Antarctic Treaty System (1992).
^[3] See for example Peter Beck, The International Politics of Antarctica (1986); Peter Beck, ‘Twenty Years On: The UN and the “Question of Antarctica” 1983 – 2003’ (2004) 40 Polar Record 205.
^[4] See for example Duncan French and Karen N Scott, ‘International Legal Implications of Climate Change for the Polar Regions: Too Much, Too Little, Too Late?’ [2009] MelbJlIntLaw 33; (2009) 10(2) Melbourne Journal of International Law 631; Alan Hemmings and Michelle Rogan-Finnemore (eds), Antarctic Bioprospecting (2005).
^[5] 1959 Antarctic Treaty, art I.
^[6] Ibid.
^[7] 1959 Antarctic Treaty, arts II and III.
^[8] 1991 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998).
^[9] 1991 Environmental Protocol, art 2.
^[10] Alan Hemmings, ‘From the New Geopolitics of Resources to Nantechnology: Emerging Challenges of Globalism in Antarctica’ (2009) 1 Yearbook of Polar Law 55.
^[11] See Duncan French, ‘Global Justice and the (Ir)relevance of Indeterminacy’ (2009) 8 Chinese Journal of International Law 593.
^[12] See Michael Jacobs, ‘Sustainable Development as a Contested Concept’ in A Dobson (ed), Fairness and Futurity: Essays on Environmental Sustainability and Social Justice (1999), 21, 25.
^[13] While conservation and sustainability lack some of the conceptual breadth of the other two principles, they remain both expansive in application and sufficiently indeterminate in scope to justify being included alongside these other – more obvious – manifestations of a meta-principle.
^[14] See Wolfgang Sachs and Tilman Santarius, Fair Future: Resource Conflicts, Security and Global Justice (2007) 2.
^[15] See Jacobs above n 12, 25.
^[16] See French, above n 11, 598: ‘global justice is one of the most indiscriminately used ideas in current political and academic debate’.
^[17] Thomas Franck, Fairness in International Law and Institutions (Oxford, 1995) 8-9.
^[18] Ibid 404.
^[19] Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature 2 June 1988, 27 ILM 868 (not in force).
^[20] See Kees Bastmeijer, ‘Protecting Polar Wilderness: Just a Western Philosophical Idea or a Useful Concept for Regulating Human Activities in the Polar Regions’ (2009) 1 Yearbook of Polar Law 73: ‘it is clear that the international governance systems of both the Arctic and the Antarctic pay very little attention to the preservation of the Polar Regions as the last relatively untouched wildernesses on earth’ (98).
^[21] Mining other than for scientific purposes is prohibited by art 7 of the 1991 Environmental Protocol.
^[22] The moratorium may be reviewed in 2048 and lifted provided a binding minerals regime is put in its place (art 25(5) of the 1991 Environmental Protocol).
^[23] Submission of Chile to ATCM XXXII-CEP XII (2009), Bioprospection: Baselines and Parameters, WP049 rev.2, <http://www.ats.aq/documents/ATCM32/wp/ATCM32_wp049_
rev2_e.doc> at 24 November 2009. In similar terms, see also the submission of Belgium et al to ATCM XXXII-CEP XII (2009), The Antarctic Biological Prospecting Database, WP001 <http://www.ats.aq/documents/ATCM32/wp/ATCM32_wp001_e.doc> at 24 November 2009: ‘It is generally acknowledged that bioprospecting is a complex issue, encompassing scientific and commercial interests, environmental concerns, ethics and equity, and considerations relating to international law and policy, including the adequacy of the Antarctic Treaty System to fully address bioprospecting. The ability of the ATCM to deal with the topic of bioprospecting is to a great degree dependent upon a solid informational basis about the level of commercial activity, both actual and potential, relating to Antarctic genetic resources’. It should be noted that the ATCM has now at least recognised the issue, by adopting non-binding Resolution 9 (2009) Collection and Use of Biological Material, <http://www.ats.aq/devAS/ats_
meetings_meeting_measure.aspx?lang=e> at 24 November 2009, which points to the relevance of the Antarctic Treaty and the Madrid Protocol in regulating bioprospecting; this however would seem to be a significant way from actually regulating the matter.
^[24] Hemmings, above n 10.
^[25] Franck, above n 17, 404.
^[26] This remains true, notwithstanding the recent adoption of Measure 15 (2009) on the Landing of Passengers from Tourist Vessels <http://www.ats.aq/devAS/ats_meetings_meeting_measure.
aspx?lang=e> at 24 November 2009, and Resolution 7 (2009) on General Principles of Antarctic Tourism <http://www.ats.aq/devAS/ats_meetings_meeting_measure.aspx?lang=e> at 24 November 2009.
^[27] ATCM XXXII Washington Ministerial Declaration on the Fiftieth Anniversary of the Antarctic Treaty (6 April 2009) [10]: ‘Confirm their intention to work together to better understand changes to the Earth’s climate and to actively seek ways to address the effects of climate and environmental change on the Antarctic environment and dependent and associated ecosystems’.
^[28] Ibid [11], emphasis added.