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Hemmings, Alan D; Stephens, Tim --- "Reconciling Regional and Global Dispensations: The Implications of Subantarctic Extended Continental Shelf Penetration of the Antarctic Treaty Area" [2008] NZYbkIntLaw 30; (2008) 6 New Zealand Yearbook of International Law 273

Last Updated: 9 February 2019

RECONCILING REGIONAL AND GLOBAL DISPENSATIONS: THE IMPLICATIONS OF SUB-ANTARCTIC EXTENDED CONTINENTAL SHELF PENETRATION OF THE ANTARCTIC TREATY AREA

Alan D Hemmings^[†] and Tim Stephens^[*]

I. ANTARCTIC PARADOX

Considerable attention has been concentrated on the difficulties posed for Antarctic territorial claimants in seeking to realise coastal state rights in the continental shelves from their claimed territories under Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).^[1] That provision permits a coastal state to establish a continental shelf that extends seawards beyond the normal 200 nm continental shelf where the geologic or bathymetric shelf continues, normally to a total distance not further than 350 nm from the territorial sea baselines. To establish such an extended continental shelf (ECS), states must file a submission of delineation data with the Commission on the Limits of the Continental Shelf (CLCS), the technical body established by UNCLOS and charged with assessing submissions and making recommendations as to ECS limits. The claimants that have so far made submissions of data to the CLCS have adopted a range of approaches in relation to the Antarctic components of their submissions.^[2] However they have each in some manner shown sensitivity towards the geopolitical realities surrounding the question of Antarctic territorial claims, and the modus vivendi achieved through the 1959 Antarctic Treaty,^[3] in particular its Article IV.
Little consideration has been directed to the implications of establishing continental shelves from the sub-Antarctic islands north of the Antarctic Treaty area; that is, beyond 60° south latitude. These islands, aside from the South Georgia and South Sandwich groups, which are subject to a broader territorial dispute between the United Kingdom and Argentina around the Falkland/Malvinas islands, appear to have been seen as unproblematic for two reasons: their uncontested sovereignty, and their location outside the Antarctic Treaty area. However, as the largely successful 2004 submission by Australia to the CLCS indicates, recommendations by the CLCS in relation to sub-Antarctic islands may result in ECS penetration into the Antarctic Treaty area south of 60° South latitude.^[4] This has been the case with the ECS from both of Australia’s sub-Antarctic islands: Macquarie Island and the Heard and McDonald Islands group (Figure 1). The already problematical South Sandwich Islands, whose most southerly isles are in any case very close to the northern boundary of the Antarctic Treaty area, also possess a continental shelf apparently extending into the area (Figure 1).
This situation raises interesting questions in relation to the established collective management of the area south of 60° South. For the first time there appears to be an objective international assignation (via UNCLOS and the CLCS process) of individual state rights to areas within the Antarctic Treaty area. Whereas claimed territory within the Antarctic Treaty area remains ‘frozen’, with the claimant being effectively unable, thanks to Article IV of the Antarctic Treaty and the general non-recognition of claims by the international community, to realise what it sees as territorial prerogatives, a situation now arises where territory beyond the Antarctic Treaty area may be seen to generate preclusive rights within the Antarctic Treaty area. This, perhaps unanticipated Antarctic paradox, is the focus of this article.^[5]

II. SUBMISSIONS TO THE CLCS AFFECTING THE ANTARCTIC AND SUB-ANTARCTIC

Fifty one submissions have been made to the CLCS pursuant to Article 76(8) of UNCLOS.^[6] Of the seven Antarctic claimants, only one (Chile) has yet to make a substantive submission to CLCS, although on 8 May 2009, pursuant to a decision taken by Parties at the 18th Meeting of State Parties to the Convention, it submitted ‘Preliminary Information’.^[7] Australia made a full submission in 2004 which included the Australian continent, offshore islands (including those in the sub-Antarctic) and the Australian Antarctic Territory (AAT). However, in an accompanying note Australia requested the CLCS not to consider the AAT ECS data for the time being.^[8] A less assertive approach was taken by New Zealand in its partial ECS submission in 2006, which excluded the Ross Dependency, but also advised that a submission for this area may be made later.^[9] The United Kingdom made a partial submission in relation to Ascension Island in the South Atlantic in 2008, where it also declared that areas of continental shelf appurtenant to Antarctica may be addressed in a later submission.^[10] In a further partial submission in May 2009 in relation to the Falkland Islands, South Georgia and the South Sandwich Islands the United Kingdom included data for ECS areas which entered the Antarctic Treaty area.^[11] France addressed its Antarctic Territory in a 2009 partial submission in relation to the sub-Antarctic Kerguelen Islands and the French Antilles (see below), advising that it did not include areas of the continental shelf that adjoin Antarctica, ‘for which a submission may later be made’.^[12]
In April 2009, Argentina made a full submission to the CLCS, including what it termed the ‘Argentine Antarctic Sector’ and the ‘Islas Malvinas, Georgias del Sur and Sandwich del Sur’. Not only did Argentina include data for the Antarctic, but the accompanying note did not (as Australia had done) request the CLCS not to consider the Antarctic area.^[13] The Argentine submission will be considered in more detail below in relation to its sub-Antarctic components. However, in relation to the Antarctic component, Argentina is the only state to have submitted data for the ECS appurtenant to its Antarctic claim without qualification (we now await the Chilean position - the Preliminary Information it submitted advises that ‘[the] Commission will be duly informed on the option to be taken by Chile regarding the Chilean Antarctic Territory’^[14]).
The Executive Summary of the Argentine submission does not identify any dispute in relation to the Antarctic component (although it does in relation to the sub-Antarctic components, as discussed below).^[15] However the Argentine covering note for the submission does make two significant references to the Antarctic Treaty:

The Argentine Republic recalls ... the importance of ensuring consistency between the Antarctic Treaty System and the United Nations Convention on the Law of the Sea, in order to ensure continued peaceful cooperation, security and stability in the Antarctic region.

The Argentine Republic also takes into account the circumstances of the region south of 60 degrees south latitude and the special legal and political status of Antarctica under the provisions of the Antarctic Treaty, including article IV thereof, and the Rules of Procedure of the Commission on the Limits of the Continental Shelf.^[16]

This specific reference to the Rules of Procedure of the CLCS, in the context of the area south of 60° South, may reflect recognition of the inability of the Commission to consider data for any area of ECS in this zone if considered by the CLCS to be subject to dispute because of the operation of the Antarctic Treaty.^[17]
Rounding out the CLCS submissions by Antarctic claimants is Norway’s May 2009 partial submission relating specifically to its Antarctic possessions – sub-Antarctic Bouvetøya (often rendered as Bouvet) and its continental territory of Dronning Maud Land. Interestingly, one part of Norway’s Antarctic claim – Peter I Øy in the Bellingshausen Sea – was not mentioned (at least in the publicly available Executive Summary). Norway’s submission charted a middle course between the essentially unqualified submission of Argentina on the one hand, and the more restrained strategy adopted by New Zealand and the United Kingdom on the other, and, as with Australia, Norway requested the CLCS not to take any action for the time being in relation to the continental shelf appurtenant to Antarctica.^[18]
The result of the submissions that have been made over the last five years is that the submarine areas of all of the sub-Antarctic islands north of the Antarctic Treaty area have been brought before the CLCS. Indeed two sub-Antarctic groups (South Georgia and the South Sandwich Islands) have been subject to submissions by two states – Argentina and the United Kingdom. The sub-Antarctic islands of Australia (Macquarie; Heard and McDonald), New Zealand (arguably: Auckland; Campbell),^[19] Argentina (Georgia del Sur; Sandwich del Sur)^[20] and Norway (Bouvetøya), are included in the broader submissions already discussed. The sub-Antarctic islands of France (Kerguelen; Crozet) have been the subject of two separate partial submissions: Kerguelen with the French Antilles in a submission by France in early 2009;^[21] Crozet with South Africa’s Prince Edward Islands in a joint submission by France and South Africa in May 2009.^[22]
The workload of the CLCS increased dramatically in the period leading up to the May 2009 deadline which applies to most submissions, and as a result the CLCS has been able to make recommendations only in relation to eight submissions.^[23] Two of the eight recommendations concern submissions with an Antarctic and/or sub-Antarctic component, those of Australia and New Zealand. The CLCS recommendation in April 2008 on the Australian submission accepted the bulk of the data presented including, critically for our purposes here, the penetration south of 60° South of the ECS from Australia’s two sub-Antarctic island groups.^[24] In August 2008, the CLCS made its recommendations in relation to the New Zealand submission.^[25] Given that New Zealand had decided not to include data for the Ross Dependency, and its sub-Antarctic islands are relatively northerly, no New Zealand ECS extended south of 60° South. Similarly, the ECS from the Norwegian sub-Antarctic island of Bouvetøya poses no issues in relation to the Antarctic Treaty area. Although the island is in a high latitude, its ECS projects in a north-easterly direction.^[26] Had a similar size ECS been found to the south, it would have extended south of 60° South.
However, a similar situation to that which arose in relation to the Australian sub-Antarctic islands occurs in relation to the South Sandwich Islands, which are addressed in both the full Argentine submission and a partial United Kingdom submission. Because of the high latitude of the most southerly of these islands, the geological continental shelf extends substantially south of 60° South. The fact that there is plainly a longstanding dispute between the United Kingdom and Argentina over South Georgia and the South Sandwich Islands may very likely have resulted in the CLCS deciding to put aside consideration of these areas anyway, but this has been put beyond doubt by both states submitting notes which draw attention to this fact and which explicitly request the Commission not to examine the applicable parts of the other’s submission.^[27] This would appear to rule out the perhaps rather unlikely, but theoretical possibility, that the two disputing parties might ask the CLCS to examine the geological data without prejudice to the resolution of their overlapping claims, creating the possibility that there could be a second instance of sub-Antarctic-based ECS penetrating the Antarctic Treaty area.
Whereas it made no explicit reference to a land or maritime dispute in relation to the Antarctic components of its submission, Argentina recognised that such a dispute existed in relation to the ‘Isles Malvinas, Georgias del Sur and Sandwich del Sur’, and its duty as a submitting coastal state to advise the CLCS of this.^[28] As such the existence of a dispute was identified solely in relation to the United Kingdom and there was here (as in the subsequent United Kingdom submission in relation to the same islands, and the much earlier Australian submission,) no consideration of any potential problems in relation to ECS areas from sub-Antarctic islands entering the Antarctic Treaty area.
The United Kingdom’s partial submission for the Falkland Islands, South Georgia and the South Sandwich Islands (noting that the last two groups are administratively a single UK Overseas Territory) included a reference to the fact that ‘this partial submission is also the subject of a submission by Argentina’ and:

In accordance with paragraph 2(b) of Annex I to the Commission’s Rules of Procedure, the UK wishes to inform the Commission that, in its view, this partial submission and the recommendations of the Commission made in respect of it will not prejudice matters relating to the delimitation of boundaries between the UK and any other State.^[29]

Neither the Argentine nor United Kingdom submissions appear to entertain any doubts about the acceptability of sub-Antarctic ECS penetration into the Antarctic Treaty area. Yet the penetration from the South Sandwich / Sandwich del Sur group is very considerable, as Figure 6 in the Argentine Executive Summary and Figure 1 in the United Kingdom’s Executive Summary show. On the basis of the latter, the penetration below 60° South extends from almost 20° to 40° west longitude and as far south as about 63° South latitude.

III. THE ANTARCTIC MODUS VIVENDI

The Antarctic Treaty, with subsequent instruments constituting the ATS, achieves many important objectives. The most fundamental of these is the modus vivendi which contains claims to territorial sovereignty south of 60° South latitude, which were (and which remain) the most obvious incitements to the ‘international discord’ that the treaty seeks to prevent. The achievement of the Antarctic Treaty’s celebrated Article IV is that by satisfying claimant, potential claimant, and claim-repudiating states, it created the legal and political space for free access, scientific and logistical cooperation, and for the creation of the governance regime that became the ATS.
With time, the ATS became not only the mechanism for continued containment of the underlying sovereignty tensions between claimants and others within the community of states parties to the ATS (the Antarctic Treaty Consultative Parties (ATCPs)), but the basis for asserting ever more confidently the claims to special responsibility for Antarctica of the ATCPs in relation to the general international community outside the ATS.^[30] This saw, inter alia, the ATCPs individually and collectively resisting the intrusion (as they saw it) of the Group of 77 states into Antarctic affairs through the annual ‘Question of Antarctica’ in the United Nations General Assembly in the 1980s and early 1990s, the carefully circumscribed access to Antarctic Treaty Consultative Meetings (ATCMs) granted to the United Nations system via UNEP’s Expert status, and the cautious approach to interaction with other regional institutions and (particularly) the major global instruments.
Antarctic exceptionalism was therefore the guiding principle in the development and operation of the ATS.^[31] Whilst formally the dispensation of Antarctica as an objective regime was based upon the containment of territorial sovereignty, between claimants and other members, the assumptions, norms and claims had broadened beyond this to a more general claim to a collective hegemony over the Antarctic Treaty area. Joyner characterised this as a de facto condominium status, suggesting that ‘a plausible argument can be made that the Antarctic Treaty Consultative Parties (ATCPs) have acquired collective rights to establish regulatory regimes for Antarctica and its offshore regions’.^[32]
So long as activities in the Antarctic Treaty area were limited to national science programmes, this was not problematic. ‘Outsider’ states were by definition outsiders – states which lacked the capacity for independent action in Antarctica. The difficulty arose when ATCPs themselves developed a capacity and interest in realising resource options in the area, particularly in the seas beyond the Antarctic continent where the modus vivendi did not apply with equivalent force and clarity. At this point, the permeability of the politically-constructed ‘boundary’ of the Antarctic Treaty area at 60° South became obvious. This stimulated the ATCPs to attend to issues of Southern Ocean governance, including ‘specific policies directed at regulating sealing, fishing, mineral exploitation, and environmental protection offshore the continent’.^[33] This strategy was not challenged by the coexisting maritime claims from sub-Antarctic islands, all of which are claimed by ATCPs and in respect of which sovereign rights were generally accepted. Specific allowance was made within ATS instruments in respect of these new topics of Antarctic concern. However the bright line distinction between maritime zones from the Antarctic continent and maritime zones outside the Antarctic Treaty area but within the scope of specific ATS instruments, such as the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR),^[34] can no longer be maintained with the arrival of ECS areas asserted from sub-Antarctic islands entering the Antarctic Treaty area.

IV. A PRECEDENT IN CRAMRA?

Although sovereign territory and consequential maritime zones such as Exclusive Economic Zones (EEZs) have intercalated with the CCAMLR area since its inception, this has only occurred well north of 60° South. Until the recent CLCS recommendations in relation to the Australian submission, there had been no global recognition of sovereign areas within the Antarctic Treaty area. However, a possible demonstration of the acceptability, at least to ATCPs, of spill-overs across the Antarctic Treaty boundary, was provided in the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA).^[35]
The general area of application of CRAMRA was stated to be the Antarctic Treaty area, with the ‘seabed and subsoil of adjacent offshore islands up to the deep seabed’ also included.^[36] Watts has noted that as a result ‘if the geographic extent of the continental shelf appurtenant to that land extends north of 60° South (as it does in the area of the Antarctic Peninsula), then mineral activities on that more northerly area of shelf are also subject to the Convention’.^[37] On the other hand, CRAMRA was silent in the case of territory to the north of the Antarctic Treaty area possessing appurtenant continental shelf areas extending south of 60° south,^[38] as has subsequently proven to be the case with some of the sub-Antarctic islands. The matter was instead addressed in the CRAMRA Final Act:

The Meeting agreed that the area of regulation of Antarctic mineral resource activities defined in Article 5(2) of the Convention does not extend to any continental shelf appurtenant in accordance with international law to islands situated north of 60° south latitude.^[39]

In the event, CRAMRA was overtaken by developments which led to prohibition of mining in Antarctica through the conclusion of the Protocol. CRAMRA has not entered into force, and given the apparent durability of the Protocol there is little likelihood that this will occur.^[40]
On one view, this need not, of itself, affect the precedential value of CRAMRA in terms of its acceptance within the ATS of continental shelf penetration of the Antarctic Treaty area. Moreover, the underlying basis for both the CRAMRA and the law of the sea is the generally undisputed fact that sub-Antarctic islands generate coastal state entitlement to a continental shelf. CRAMRA foundered because of the failure to gain consensus within the ATS on the acceptability of mineral resource activities within the Antarctic Treaty area, as the result of widespread acknowledgement of the economic, environmental, and ultimately geopolitical costs that were thought likely to result from such activity.^[41] Ironically, amongst the potential rights flowing from favourable CLCS recommendations in the Antarctic Treaty area are precisely these activities, whether or not the beneficiary states intend to realise them. Whilst these are procedurally barred, they are not substantively nullified by the Protocol’s prohibition on mining in the Antarctic Treaty area.

V. SUBSTANTIVE ISSUES

A. Tensions Within and Between Regimes

From what one might term an ‘Antarctic system’ perspective (as opposed to the perspective of a beneficiary coastal state, notwithstanding it also being an ATCP), the risk here is of engendering tensions between legal rights acquired under general international law and the ATS. Whereas CRAMRA collapsed before it could sanction claims to cross-Antarctic Treaty area continental shelf rights, the CLCS is up and running and has now delivered its first recommendations going directly to this question. Further, since it is not part of the ATS architecture, it cannot of itself consider any particular Antarctic ramifications. The disabling of its consideration of ECS appurtenant to land within the Antarctic Treaty area is, after all, achieved via a generically applicable dispute trigger in its Rules of Procedure, and not because of any Antarctic-specific appreciations.
The analysis thus far has considered in general terms the Antarctic complications arising from submissions to the CLCS by three states (Argentina, Australia and the United Kingdom) where their sub-Antarctic islands have an ECS that penetrates the Antarctic Treaty area. The CLCS made favourable recommendations in relation to the Australian submission, and thus the penetration of the area by the ECS of Heard and McDonald Islands and Macquarie Island is a fait accompli. By contrast, the fact that both Argentina and the United Kingdom have made submissions in relation to South Georgia and the South Sandwich Islands, and that the dispute over these territories is both acknowledged by these states and argued by each to require that CLCS not consider the other’s relevant data, means that the CLCS will not consider these parts of the submissions. As a result, for the time being the potential ECS areas from these islands create no difficulties for the ATS, beyond the fact, presumably, that the two claimant states will continue to reserve their position in relation to any collective ATS action that might affect these areas. Because the future is an uncertain country, we continue to cast the discussion in generic terms, whilst recognising that in the near-term at least the practical issues may be essentially confined to the two Australian sub-Antarctic islands. If indeed, as it presently appears, Australia is on its own in this respect, this may pose some interesting challenges to both it and the ATS in terms of what is not only acceptable, but operationally workable.

B. Confidence in the ATS

Over the longer term, one question that must be posed is whether the project of seeking to secure coastal state rights within the Antarctic Treaty area speaks to the confidence of key original signatories to the Antarctic Treaty in both the durability and utility of the ATS.
Historically, major emergent resource issues in the Antarctic have been addressed through a stand-alone instrument adopted within the ATS (with the notable exception of whaling, an activity that substantially predated the ATS and was already regulated by the International Convention for the Regulation of Whaling).^[42] Each instrument concluded to date has become (or was intended to be) the sole multilateral mechanism to regulate that activity within the Antarctic Treaty area, whether fishing, sealing, or minerals extraction. The establishment of coastal state rights within the Antarctic Treaty area on the ECS means that this sort of exclusive ATS jurisdiction would not be possible if and when further regulation was considered that might affect that ECS area. The most likely near-term activities where this might arise are those associated with mineral resources and bioprospecting.

C. Mineral Resources

In the near-term, the potential minerals issue on the extended continental shelf within the Antarctic Treaty area may not pose insurmountable problems. The availability of minerals from less difficult and expensive areas, and the present global recession, are immediate constraints. Further, the sub-Antarctic coastal states involved are all ATCPs and subject to the Article 7 prohibition of mineral resource activities in the Protocol in the Antarctic Treaty area.
It would seem possible to argue that ECS areas from sub-Antarctic islands that penetrate the Antarctic Treaty area are in fact areas subtracted from the Antarctic Treaty area, and thus not in fact covered by the Protocol. The present governments of the relevant states appear unlikely to take this line (indeed the Australian government has made clear that it regards the mining prohibition as extending throughout the Antarctic Treaty area) but this need not always be the case. Nonetheless it must reasonably be inferred that these states’ interest in acquiring (or formalising) rights over the ECS amount to a claim to resource interests and their capacity to realise them if or when the status quo in Antarctica ends. These sub-Antarctic coastal states may also of course hold genuine concerns for enhancing environmental protection, research and containing possible exploitation of these resources by others. These may not necessarily be consistent with the collective ATS approach to these matters within the Antarctic Treaty area. Benign intentions are still capable of posing a challenge for collective ATS governance on these matters.
There may be reasonable confidence that mineral resource activity on those parts of any CLCS-sanctioned ECS that penetrates the Antarctic Treaty area will not be pursued for the time being, but what about a future when the time comes for a re-examination of the prohibition on those activities? Under Article 25(2) of the Protocol, a review conference can be called by any ATCP 50 years after its entry into force; that is in 2048. This is still some time ahead, and the specified timelines after the calling of a review conference and any amendments are adopted push the date at which a party’s withdrawal from the Protocol (and potentially the point at which it could unilaterally start mining) out further.^[43] However, the political decision to trigger that process would likely be taken some years earlier. In short, while the time horizon is not short, the point of potential instability is not in the far future either.
Does the existence of even latent rights (let alone the possibility of actual mineral resource activity on the ECS) by one or a few fellow ATCPs in parts of the Antarctic Treaty area have no effect on the sorts of choices the ATS might make about continuing or ending the minerals prohibition as we approach 2048? And, what if, despite forbearance on the ECS in the area south of 60° South, minerals activity is already underway on the ECS immediately to its north? Recall that the debate in the 1980s around the acceptability of mineral resource activity in the Antarctic occurred before it was underway and with no analogous activity in the sub-Antarctic. Vexed as that debate still was, it was plainly much easier to agree to sacrifice presently unrealised options than it would have been to cease an activity already underway. If minerals activity were to commence on that part of the ECS of a sub-Antarctic island that was inside the Antarctic Treaty area, what might this do to the geopolitics of the mining question elsewhere in the area?

D. Bioprospecting

Even less clarity is evident in relation to other resource issues not presently subject to any particular ATS obligations, most obviously bioprospecting.
‘Bioprospecting’ or ‘biological prospecting’ (the term preferred in ATCM discussions) is undefined in any international instrument, including those forming the ATS. A broad working definition might be:

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.^[44]

Organisms of bioprospecting interest are particularly associated with extreme environments. The activity probably commenced in Antarctica in the late 1980s, and was first raised as a policy issue in an ATCM in 1999.^[45] There are as yet no legally binding obligations specifically attaching to bioprospecting in Antarctica, but two hortatory Resolutions reflect ATCM expectations and underpin annual discussion of the issue.^[46] It is not unreasonable to expect that the ATS will (possibly bi-focally at both the ATCM and annual CCAMLR Commission Meeting) develop some further guidance in relation to bioprospecting within the Antarctic Treaty area, and possibly even some legally binding regulation. Accordingly, if a coastal state considered that it alone should regulate bioprospecting activities on that part of its sub-Antarctic ECS falling within the Antarctic Treaty area, interesting questions would arise should somebody wish to bioprospect in the area.
If the putative bioprospectors are nationals of the coastal state, and there is at this point no specific regulation of bioprospecting under the ATS, the situation is the simple and familiar one of the responsible ATCP exercising jurisdiction on the basis of nationality.
Where non-national bioprospectors approach the coastal state for authorisation pursuant to the provisions of UNCLOS relating to marine scientific research,^[47] a real operational conflict between the regional ATS and the global system of UNCLOS may arise. If the coastal state grants authorisation, there may still be no difficulty if other states see this act as consistent with coastal state rights and duties in relation to an area that has been excised (for these purposes) from the Antarctic Treaty area. If, however, the coastal state declines requests from non-nationals, particularly where they are nationals of another ATCP, then the historically problematical situation of selective access to parts of the Antarctic Treaty area may be seen to have arisen. This scenario is perhaps exacerbated if the coastal state is at the same time authorising other bioprospectors, including its own. Of course if one takes the view that the ECS is no longer in the Antarctic Treaty area, for these purposes, potentially the problem does not arise.
More problematic may be the situation where a bioprospector elects not to seek coastal state authorisation, or following its denial proceeds anyway. What does the coastal state do in this case? Presumably it has open to it the options of interdiction at sea, seizure of vessels and crews, escort back to its ports and subsequent legal action in its domestic courts, as we see in relation to illegal unreported and unregulated (IUU) fishing. However, IUU enforcement action has, hitherto, only occurred north of 60° South. Conducting such enforcement action over the ECS within the Antarctic Treaty area may raise other considerations. Aside from the capacity and cost factors, would it be consistent with the demilitarisation obligations under Article I of the Antarctic Treaty?

E. CCAMLR

Our primary focus here has been on the interaction between coastal state rights in the ECS and the rights and duties under the Antarctic Treaty and the Protocol in the Antarctic Treaty area. However, the CCAMLR area includes the entire marine area south of 60° South, as well as the area from 60° South to the Antarctic Convergence, and consequentially there may also be implications for this key part of the ATS regime. There is here, an apparently clear-cut understanding in relation to the EEZs of sub-Antarctic islands and the CCAMLR area in CCAMLR’s Article IV(2) and the ‘Chairman’s Statement’, which has recognised the right of coastal states to adopt management regimes for the EEZ that are more stringent (or more relaxed) than those the CCAMLR Commission adopts as Conservation Measures.^[48] What has not been determined, however, is whether this allowance for coastal state maritime zones applies only to the EEZ and the juridical continental shelf out to 200 nautical miles, but also to any ECS beyond this distance.

VI. CONCLUSION

As a result of CLCS recommendations in relation to the ECS under UNCLOS we have seen for the first time international approval granted for particular state rights over areas south of 60° South latitude. This is a significant international development, and one that has passed largely unremarked. However justified in a formal sense as a predictable consequence of coastal state rights under UNCLOS, the effect of the CLCS recommendations is to allow the removal of very substantial areas, in relation to particular activities, from the collective governance regime provided by the Antarctic Treaty system.
So far this has involved only one coastal state (Australia) and its two sub-Antarctic groups. Whilst submissions of data to the CLCS by Argentina and the United Kingdom for the same sub-Antarctic groups may pass into a state of limbo because of the CLCS’s Rules of Procedure which prevent it from examining areas of ECS projected from disputed territory, plainly both of these states also sought recognition of the rights they believe themselves to have as coastal states within the Antarctic Treaty area. These events involve the conjunction of two of the most sensitive issues in the Antarctic – territorial sovereignty and resources. Whatever else the submissions pursuant to UNCLOS Article 76 have done, they have given new life to the territorial claims issue in Antarctica for the first time in the fifty years during which the Antarctic Treaty has been in operation.
Officials in claimant states are, in our experience, inclined to dismiss the concerns raised in this article concerning ECS areas in Antarctica (whether relating to the shelf appurtenant to the continental claims, or the penetrating ECS from sub-Antarctic islands) as misplaced and purely academic. One is assured that since state ‘X’ is a longstanding supporter of the Antarctic Treaty system, it is fanciful to consider that it would, wearing its coastal state hat, do anything inconsistent with, let alone subvert, the ATS. Naturally we too hope this is the case. But governments and policies change, and legal rights once entrenched are firm anchors. The more substantive coastal state argument rests, in our view, on an optimistic separation of narrow legal perspectives, including implicitly the assumption that rights and duties in different arena are commensurable. We believe that whilst this may be so legally, in terms of policy and politics this is not necessarily so. Put bluntly, we see a fundamental conflict with a state arguing its commitment to one set of norms under one dispensation (such as the prohibition of minerals activity under the Protocol, or collective decision making about Antarctic bioprospecting) whilst actively seeking preclusive rights to precisely this under another (coastal state rights over the ECS under UNCLOS). However finessed, they represent different policy goals.
Accordingly, it is incumbent on coastal states with sub-Antarctic islands whose ECS penetrates the Antarctic Treaty area to be clear about their intentions. In our view, there is merit to these states making a commitment not to realise coastal state rights in these areas for the lifetime of the ATS, that is to signal clearly that they will not countenance exploitation on this part of the ECS outside the four corners of existing ATS arrangements. This entreaty plainly attaches to Argentina, Australia and the United Kingdom. Australia in particular, having secured its rights under UNCLOS is well placed to lead this,^[49] and it may be in its interests to do so. Australia would be particularly exposed if, because of the difficulties in considering the Argentine and United Kingdom submissions, it is left as the only coastal state with recognised ECS areas south of 60° South. The duty to ensure that the domain of the ATS is not progressively whittled away by the pursuit of national interest is more widely shared by all ATCPs.
Although we have here concerned ourselves with only those parts of the ECS which enter the Antarctic Treaty area, there is plainly a need to begin discussion about resource exploitation on the continental shelf of sub-Antarctic islands more generally. The rationale for this rests in part on a concern about the implications for the Antarctic and its international regime, including the implications of greater resource exploitation there on the Antarctic, and the present dispensation that prohibits mineral resource activities. A basis for attention to possible effects across the Antarctic Treaty boundary seems to be provided by the concept of ‘dependent and associated ecosystems’ found in the Protocol and earlier in CRAMRA. The case for discussion also draws on concern about the consequences for the sub-Antarctic islands themselves and the adjacent marine ecosystems. The fact that these islands are (generally) subject to undisputed national sovereignty does not mean that there is not an international interest in what happens there.

Figure 1 - The Approximate Extent of the Continental Margin of Antarctica and sub-Antarctic islands

^[†] Adjunct Associate Professor, Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury, New Zealand and Research Associate, Institute of Antarctic and Southern Ocean Studies, University of Tasmania, Hobart, Australia. Resident in Canberra.
^[*] Senior Lecturer, Faculty of Law, University of Sydney, Australia.
^[1] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).
^[2] They are: Australia, New Zealand, Argentina, Norway, France and the United Kingdom.
^[3] The Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
^[4] See A D Hemmings and T Stephens, ‘Australia’s Extended Continental Shelf: What Implications for Antarctica?’ (2009) 20 Public Law Review 9.
^[5] Given the fast pace of developments, a cut-off date of 1 September 2009 has been adopted here in relation to data and other information relating to Antarctic and subantarctic ECS issues.
^[6] See <http://www.un.org/Depts/los/clcs_new/commission_submissions.htm> at 22 September 2009). This webpage was last updated on 20 August 2009.
^[7] Chile, Preliminary Information Indicative of the Outer Limits of the Continental Shelf and Description of the Status of Preparation and Intended Date of Making a Submission to the Commission on the Limits of the Continental Shelf (2009) <http://www.un.org/Depts/los/
clcs_new/submissions_files/preliminary/chl2009preliminaryinformation.pdf> at 22 September 2009.
^[8] Australia, Note from the Permanent Mission of Australia to the Secretary-General of the United Nations Accompanying the Lodgement of Australia’s Submission. No. 89/2004 (2004) <http://www.un.org/depts/los/clcs_new/submissions_files/aus04/Documents/aus_doc_es_attachment.pdf> at 22 June 2009.
^[9] New Zealand, Note from the Permanent Mission of New Zealand to the United Nations. Note No. NZ-CLCS-TPN-02 (2006) <
http://www.un.org/Depts/los/clcs_new/submissions_files/nz l06/nzl_doc_es_attachment.pdf> at 22 June 2009.
^[10] United Kingdom, Note from the Permanent Mission of the United Kingdom of Great Britain and Northern Ireland to the United Nations. Note No. 168/08 (2008) <
http://www.un.org/ Depts/los/clcs_new/submissions_files/gbr08/gbr_nv_9may2008.pdf> at 22 September 2009.
^[11] United Nations, Receipt of the Submission Made by the United Kingdom of Great Britain and Northern Ireland to the Commission on the Limits of the Continental Shelf (2009) at <http://www.un.org/Depts/los/clcs_new/submissions_files/gbr45_09/gbr_clcs45_2009e.pdf> at 22 September 2009. Note that ‘According to the submitting State, “this represents the final partial submission to the Commission which the United Kingdom will make to the Commission, prior to the deadline of 13 May 2009.”’
^[12] France, Note from the Permanent Mission of France to the United Nations. Note HR/cl No. 69 (2009) <
http://www.un.org/Depts/los/clcs_new/submissions_files/fra09/fra_note_feb2009e. pdf> at 22 September 2009.
^[13] Argentina, Note from the Permanent Mission of the Argentine Republic to the United Nations. Note N.U. 139/2009/600 (2009) <
http://www.un.org/Depts/los/clcs_new/submissions_ files/arg25_09/arg_note_2009eng.pdf> at 22 September 2009.
^[14] Chile, above n 7, at 19.
^[15] Argentina, Submission to the Commission on the Limits of the Continental Shelf: Executive Summary (2009) <
http://www.un.org/Depts/los/clcs_new/submissions_files/submission_arg_ 25_2009.htm> at 22 September 2009. For the English language version see: <http://www.un.org/Depts/los/clcs_new/submissions_files/arg25_09/arg2009e_summary_eng.
pdf> at 4 December 2009.
^[16] Argentina, above n 13, [2] & [4].
^[17] Commission on the Limits of the Continental Shelf, Rules of Procedure of the Commission on the Limits of the Continental Shelf, UN Doc CLCS/40/Rev.1. 2001, Annex I, [5] (‘In cases where a land or maritime dispute exists, the Commission shall not examine and qualify a submission made by any of the States concerned in the dispute. However, the Commission may examine one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute.’)
^[18] Norway, Note from the Permanent Mission of Norway to the United Nations (2009) <http://www.un.org/Depts/los/clcs_new/submissions_files/nor30_09/nor2009_note.pdf> at 22 September 2009.
^[19] The New Zealand islands, which are well north of the Antarctic Convergence are often not classified as subantarctic sensu stricto.
^[20] As South Georgia and the South Sandwich Islands respectively, these islands are also claimed by (and are currently subject to the jurisdiction of) the United Kingdom.
^[21] France, above n 12.
^[22] United Nations, Receipt of the Joint submission made by the French Republic and the Republic of South Africa to the Commission on the Limits of the Continental Shelf (2009) <
http://www.un.org/Depts/los/clcs_new/submissions_files/frazaf34_09/frazaf_clcs34_2009e. pdf> at 22 September 2009.
^[23] See <http://www.un.org/Depts/los/clcs_new/commission_recommendations.htm> at 22 September 2009.

^[25] Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by New Zealand 19 April 2006 (2008) <http://www.un.org/Depts/los/clcs_new/submissions_files/
nzl06/nzl_summary_of_recommendations.pdf> at 22 September 2009.
^[26] Norway, Submission to the Commission on the Limits of the Continental Shelf: Executive Summary, Figure 1, <
http://www.un.org/Depts/los/clcs_new/submissions_files/nor30_09/nor 2009_executivesummary.pdf> at 22 September 2009.
^[27] United Kingdom, Note No. 84/09 (2009) <
http://www.un.org/Depts/los/clcs_new/ submissions_files/arg25_09/clcs_45_2009_los_gbr.pdf> at 22 September 2009; Argentina, Note N.U. No. 290/09/600 (2009) <
http://www.un.org/Depts/los/clcs_new/submissions_files/ gbr45_09/arg_re_gbr_clcs_2009e.pdf> at 22 September 2009.
^[28] Argentina, above n 15, at 7-9.
^[29] United Kingdom, Partial Submission to the Commission on the Limits of the Continental Shelf in relation to the Falkland Islands, South Georgia and the South Sandwich Islands: Executive Summary (2009), 3 <
http://www.un.org/Depts/los/clcs_new/submissions_files/ gbr45_09/gbr2009fgs_executive%20summary.pdf> at 22 September 2009.
^[30] See, for example, the reference to ‘the special responsibility of the Antarctic Treaty Consultative Parties’ in the third recital of the Preamble to the Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998).
^[31] This position is increasingly under pressure. See A D Hemmings, ‘From the New Geopolitics of Resources to Nanotechnology: Emerging Challenges of Globalism in Antarctica’ (2009) 1 Yearbook of Polar Law 55.
^[32] C C Joyner, Antarctica and the Law of the Sea (1992), 107.
^[33] Ibid 96.
^[34] Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982). Although it may be noted that this situation is not entirely unprecedented, as part of a 200 nm exclusive economic zone from the South Sandwich Islands / Islas Sandwich del Sur extends within the ATA.
^[35] Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature 2 June 1988, 27 ILM 868 (not in force).
^[36] Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature 2 June 1988, 27 ILM 868, art 5(2) (not in force).
^[37] A Watts, International Law and the Antarctic Treaty System (1992), 154-155.
^[38] Ibid.
^[39]Antarctic Treaty Special Consultative Meeting on Antarctic Mineral Resources, Final Report of the Fourth Special Antarctic Treaty Consultative Meeting on Antarctic Mineral Resources (1988), 39-40.
^[40] See the statement by New Zealand, the CRAMRA depository: New Zealand Ministry of Foreign Affairs and Trade, Treaties and International Law: Convention on the Regulation of Antarctic Mineral Resource Activities: Current Status of the Convention <
http://www.mfat.govt.nz/Treaties-and-International-Law/01-Treaties-for-which-NZ-is-Depositary/0-Antarctic-Mineral-Resource.php> at 22 September 2009.
^[41] From civil society within ATS states, through the differing interests of State Parties to the opposition in the Group of 77.
^[42] International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 74 (entered into force 10 November 1948).
^[43] Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455, art 25(3) and (5) (entered into force 14 January 1998).
^[44] A D Hemmings and M Rogan-Finnemore, ‘Access, Obligations and Benefits: Regulating Bioprospecting in the Antarctic’, in M I Jeffrey, J Firestone and K Bubna-Litic (eds), Biodiversity, Conservation, Law + Livelihoods: Bridging the North-South Divide, (2008), 529, 537.
^[45] For detail on the bioprospecting policy debate at ATCMs see: A D Hemmings, ‘Biological Prospecting in the Antarctic Treaty Area’, (Invited Opening Paper at the Intergovernmental Meeting of Experts on Biological Prospecting in the Antarctic Treaty Area, Baarn, the Netherlands, 3-5 February 2009) and A D Hemmings, ‘A Question of Politics: Bioprospecting and the Antarctic Treaty System’, in A D Hemmings and M Rogan-Finnemore (eds), Antarctic Bioprospecting (2005), 98.
^[46] Resolution 7 (2005), Biological Prospecting in Antarctica; and Resolution 9 (2009), Collection and Use of Antarctic Biological Material. Both available at <www.ats.aq> at 22 September 2009.
^[47] Part XIII of UNCLOS requires coastal state consent to be obtained in relation to scientific research on the 200 nm continental shelf. For the extended continental shelf coastal states may not withhold consent except for research within specific and publicly designated areas where resource exploration or exploitation activities are occurring or will occur within a reasonable period of time: UNCLOS, art 246(6).
^[48] Statement by the Chairman of the Conference on the Conservation of Antarctic Marine Living Resources (1980) <http://www.ccamlr.org/pu/e/e_pubs/bd/pt1.pdf> at 22 September 2009.
^[49] J Jabour, ‘The Australian Continental Shelf: Has Australia’s High-Latitude Diplomacy Paid Off?’ (2009) 33 Marine Policy 429. See also Hemmings and Stephens, above n 4.