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The Antarctic Treaty marks a fundamental milestone in the handling of Antarctica. This treaty contains some mechanisms that, until now, have been effective in protecting the Antarctic territory. In this article the hows and whys of said mechanisms are laid out. However, at the same time the effectiveness of the mechanisms are only applicable to the states that form part of the Antarctic Treaty. How then would the Antarctic territory be defended with respect to states that are not party to the Antarctic Treaty?
The proposed answer to this question consists in confirming that the evolution of the so-called “Question of Antarctica” has generated a custom in international law in such a way that the principles of the Antarctic Treaty are enforceable against third party States that are not party to this treaty. A ntarctic Treaty, International Custom, Antarctic protection mechanisms.
This postulate, which demands sovereignty as a basic and fundamental oibro in order for the state to claim territory, is a fundamental principle dstado the order of the international system in such a way that it is recognized as one of the dogmas of international law 8 and has been set as precedent in judicial cases such as that of the Island of Palmas.
In this case, Judge Huber established that “sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State” 9. Given the requirement of sovereignty for the claiming of a determined territory, seven states 10 have claimed sovereignty over each part of the Antarctic territory.
However, in order to avoid territorial disputes over the white continent, twelve states signed the Antarctic Treaty in Washington D. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force” When faced with the suspension of territorial claims and the restriction on state sovereignty being exercised in Antarctica, the aforementioned Antarctic Treaty establishes various mechanisms for the protection of the Antarctic territory and in its Article XIII rules that “it shall be open for accession by any State that is a Member of the United Nations, or by any other State which may be invited to accede to the Treaty with the consent of all the Contracting Parties … “.
Subsequently, in addition to the twelve states that were the original signers, 38 states have joined and formed a group of 50 member states of the Antarctic Treaty divided into two categories: Consultative and Non-Consultative Parties. The criteria to designate a party as consultative or non-consultative depends jlelinek the scientific activity that it is developing in Antarctica, more specifically: If a state complies with one of the three previously mentioned items, it is considered a Consultative Party and, on the contrary, if it does not carry out any of the aforementioned activities, it is then considered a Non-Consultative Party Currently, there are 28 Consultative Parties that participate in meetings and can make decisions and 22 Non-Consultative Parties that are invited to attend meetings, but they do not participate in the decision making process.
However, given that not all the states that are members of the United Nations Organization are part of the Antarctic Treaty and the complementary treaties or that some generzl party can denounce the Antarctic Treaty, the research question that we are attempting to address in this article emerges.
It consists in determining if, in the case that the mechanisms of mentioned treaty that are meant to protect the legally generaal rights should fail, it could be argued that the Antarctic Treaty, especially the principal of the peaceful usage of Antarctica, constitutes a custom in international law and, therefore, it is the source of valid law enforceable against third party states that are not party to the Antarctic Treaty. The hypothesis that will guide this work consists in asserting that the protection mechanisms of the Antarctic territory contemplated in the Antarctic Treaty could be insufficient legally against third party states.
However, there are arguments to sustain, not without difficulties, that the above mentioned treaty, and mainly the principle genfral peaceful usage of the Antarctic territory contained in it, gfneral generated a custom in international public law as a general practice and, therefore, with opinio juris is a source of valid international law and enforceable against third state parties that are not part of the Antarctic Treaty.
In order to demonstrate the previous hypothesis, this jelllinek will first show how the decision to sign the Antarctic Treaty was arrived at and the legal rights protected by it. Subsequently, it will analyze the reach of the Antarctic territory’s protection mechanisms with respect to that established in the Antarctic Treaty. Thirdly, it will reflect on the arguments in favor of asserting that the Antarctic Treaty has generated custom in international public law for third party states.
Finally, it will share the relevant conclusions. Before beginning with the development of this paper, it is pertinent to clarify that given the complexity of the Antarctic System and the Antarctic Treaty as its cornerstone this de, will concentrate on the Antarctic Treaty since what is advocated for in said treaty is applicable to the Antarctic System with respect to the material that will be visited below.
The Antarctic Treaty took place during a period of change in the concept of international relations, as a result of a general weariness with war during World War II and individual decisions made by states that led to it.
According to the conviction of the day, decisions in international material should be collective and concerted instead of being made individually and based on political force. Spanier illustrates this change with the following words from former President Roosevelt ” new international relations should mean the end of a system of unilateral actions, exclusive alliances, spheres of influence, balance of power, and all the other measures that have been attempted throughout the centuries and that have always failed … we propose the substitution of all of this for a universal organization in which all the nations lovers of peace will have every possibility to unite ” Examples of this change are evident in the actions carried out by Albert Einstein who, insigned a letter to President Roosevelt to ask him to promote a research program on the splitting of the atom and, after World War II, defended a constitution for a ” global government ” as the only possible guarantee of world peace 15 or in the proposal of former President Truman with respect to the atomic arsenal and the means for its production that consisted in the United Nations assuming responsibility for its handling In this environment of cooperation and multilateralism 17the Washington Conference took place between October 15 and December 1, and the outcome was the Antarctic Treaty that began to take effect in It should be recognized that there have been multiple diplomatic initiatives that to a lesser or greater degree have contributed to the creation of the Antarctic Treaty since James Cook circumnavigated Antarctica on January 17, 18 and the following exploration race and conquest of the Antarctic territory by men such as Amudsen, Scott and Shackleton, among others 19until the Treaty came into effect.
The first stance laid out the creation of ” an international mechanism to organize cooperation in Antarctica that would be restricted, in general, to the directly involved countries “, The second stance ” contemplated forms of internationalization based on practical criteria that involved the cooperation of specific fields of activity “, and the third position consisted of a ” general internationalization of Antarctica, within the scope of the United Nations, or the creation of a special organization “.
Parallel to the last position, informer President Harry Truman gave two proposals about a legal international regime for Antarctica to the seven states 21 that had laid claims on the territory The first proposal consisted in putting Antarctica under a trust of the United Nations Organization and the second proposal, that excluded the then Soviet Union, consisted in a limited internationalization of Antarctica by way of a condominiumin which the states that laid claim would have collective sovereignty in accordance with the norms of international public law and the international experience in material dating back to the 12th century B.
This plan was the foundation for the current Article IV of the Antarctic Treaty and was based on the statu quo agreements between the European powers and applicable to the Baltic Sea It consisted in the creation of a system of modus vivendi in which the seven nations that laid claim to territory in the white continent would suspend their claims through a moratorium and would be able to work together in Antarctica without any of them having to abandon their aspirations This proposal was not accepted for a long time.
In the 50s of the last century, there were various incidents that showed the growing tension surrounding the Question of Antarctica. Chile, Argentina, and Great Britain started a competition to back their respective claims, which generated considerable friction, such as, the dismantling of the Argentine and Chilean bases on Deception Island by the crew of the British ship HMS Snipe by means of bombarding these bases. In addition to this, there was pressure from countries, such as India, that took the Antarctic problem to the General Assembly of the United Nations 26 and the very own pressures from the intensification of the Cold War.
In this context, the International Geophysical Year played an important role in the management and the creation of the Antarctic Treaty The International Geophysical Year was a worldwide event on the study of natural phenomenon, sponsored by the United Nations that took place between July 1, and December 31, During a conference to prepare for the International Geophysical Year, it was decided that the two regions that should be explored were Antarctica and outer space.
This translated into more interest in Antarctica from many states, particularly those that had territorial claims on the white continent, plus the United States, the former Union of Soviet Socialist Republics, Belgium, Japan, and South Africa, that proceeded to establish 60 winter bases in Antarctica and the islands in the Southern Ocean for research purposes Establish a collective, organized administration on behalf of the directly involved states.
Preserve Antarctica for only peaceful purposes This is how, with the boost provided by the success of the International Geophysical Year and the establishment of the North American policy on Antarctica, the United States proposed the diplomatic conference that would lead to, not without difficulties 31the signing of the Antarctic Treaty on December 1,which had as its pillars the previously listed North American objectives and the proposed “Plan Escudero ” that is currently Article IV of the treaty Considering the complexity of the topic that it regulates, the structure of the Antarctic Treaty is relatively simple.
TRATADO ANTÁRTICO Y MECANISMOS DE PROTECCIÓN DEL TERRITORIO ANTÁRTICO
It begins with a preamble in which the signing states 33 express the importance of Antarctica being used for peaceful purposes, the importance of scientific contributions, and the establishment of scientific bases for cooperation. Following this, 14 articles are included that form the base for the regulation of the current Antarctic System of which the Antarctic Treaty is its cornerstone. With respect to the legally protected interest, it can be said that it is dual, or to be clearer, there are two legal interests protected by the Antarctic Treaty depending on the activity being carried out there.
On one hand, for certain activities the legal interest is the territory that is regulated by the Antarctic Treaty, this is to the south of 60th parallel Article IV, Antarctic Treaty and, on the other hand, there are activities where the legally protected interest is the environment in Antarctica. The reason for this difference rests on the fact that while carrying out activities in which the protected legal interest is the Antarctic territory in its entirety, one cannot physically enter Antarctica to carry out the said activities or, in other words, there is a total prohibition with respect to the Antarctic space.
In the second type of activity, one can have a physical presence in the white continent, but cannot affect the environment of Antarctica. Among the activities where the legally protected interest is the entire Antarctic territory and, therefore, their practice is banned, it can be found: Measures of a military character Article I, A.
As far as the activities in which the legally protected interest is the Antarctic environment, the following can be found: Research and scientific cooperation Article II, A. However, after having seen the analysis of the legally protected interests, we should use as a reference, although be it concise in order not to get away from the objectives of this paper, that the protection and the regulations over the Antarctic territory have continued to be perfected with the development of the Antarctic System, of which the Antarctic Treaty is the first pillar.
With this the legal interests and the permitted, limited, or banned activities also have been extended and developed in the other treaties that make up the aforementioned Antarctic System.
It is worth quoting the most relevant examples of the instruments that make up the Antarctic System that follow the logic of Antarctica as a legally protected interest as far as its territory and the Antarctic environment, in which Antarctica is the space that one can use for certain purposes without substantially altering the environment: Additionally, it establishes a regime for specific protection with respect to certain Antarctic flora and fauna “Protected Species” and it establishes special zones in the Antarctic territory such as in the case of the “Especially Protected Zones” and “Sites of Special Scientific Interest”.
This convention had as its objective the conservation of all Antarctic living marine resources fish populations, mollusks, crustaceans, and all the other species of living organisms, including birds, with the exception of whales and seals that are included in other previous international agreements.
The convention establishes as a measure of conservation “the rational usage” of living resources. This protocol establishes that Antarctica is a “natural reserve dedicated to peace and science” and explicitly prohibits whatever type of activity related to Antarctic mineral resources.
The protocol has annexes that refer specifically to the following: The Antarctic Treaty A. Peaceful usage of the Antarctic territory Article I, A.
International Scientific Cooperation and exchange of: Suspension of territorial claims, prohibition from making new claims or extending those made while the A. Another principle exists that is not specifically declared in the text of the Antarctic Treaty, but that has been fundamental for the sustainability and development of the Antarctic System.
This principle is that of consensus in the making of decisions that is concretely seen in the Consultative Meetings Article IX, A. It cannot be stressed enough that the mentioned principles currently are being put to the test by some of the trends that are being seen in Antarctic activities, such as bioprospecting 34the regulating of aquatic subglacial research 35tourism, climate change, whale hunting 36and the problem of the continental shelf, which is a topic of great importance in the Chilean Antarctic policy 37 and to which we will dedicate a few sentences.
While the Antarctic Treaty and its Article IV establishes that while it is in force ” … there will be no new claims on territorial sovereignty in Antarctica, nor will previously enforced claims be extended … “, the UNCLOS in its Article 76 regulates all with respect to the continental shelf and, thus, the coastal states can claim this shelf as part of their territory. In fact, this claim on the continental shelf has been put before the Commission on the Limits of the Continental Shelf on behalf of various states.
The first to do this was Australia in November Afterwards, New Zealand did it in Argentina followed in Aprilas well as Chile 38Norway, and the United Kingdom in May with different degrees of claims. The Consultative Parties came together in ” Reaffirming the importance that they grant to the contribution made by the Treaty and, specifically through Article IV, to assure the continuation of international harmony in Antarctica “, In any case, despite the attempt to make sure the Antarctic Treaty prevails over the UNCLOS, it is a topic open for discussion Given the legally protected interests indicated in the previous section, we proceed now to present the mechanisms set out by the same Antarctic Treaty to protect these legal interests and guarantee the peaceful purposes for which the Antarctic territory should be used.
The classification that we present is carried out to achieve a better understanding of that expressed in the treaty since there is no systematization of the mechanisms in this one, but rather a statement in such a manner that, for the person not well-versed in the Antarctic Treaty, the Antarctic protection mechanisms can become a difficult topic to understand.
Article VII of the Antarctic Treaty establishes this mechanism with ” the purpose of promoting the objectives and assuring the use of the regulations ” in the treaty and consists in the states that are able to participate in the Consultative Meetings contemplated in Article IX of the treaty having the right to designate observers to carry out inspections.
In order to make the mechanisms effective, these observers that are nationals of the Contracting Party that designates them have the freedom to access at any moment the following: All of the stations, installations, and teams that can be found in the Antarctic territory. All of the ships and airplanes at the points of embarkation and disembarkation of personnel or cargo in Antarctica. Carry out aerial observations in any moment in each and every Antarctic region. In order for this mechanism to be effective, the Contracting Parties should report in advanced the following: All expeditions to Antarctica and within Antarctica in which their ships or nationals participate and all expeditions to Antarctica that are organized or begin in their territory.
All personnel or military team that they are planning on bringing to Antarctica.
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This mechanism makes up one of the few events in which the extraterritorial nature of national law operates since, as jurisprudence of the Permanent Court of International Justice reminds us in the well-known Lotus case, ” … jurisdiction is certainly territorial; it cannot be exerted outside the territory more than under a rule that permits belonging to the customary international law or tforia convention ” According to Article VIII of the Antarctic Treaty, the designated observers, scientific personnel, and their accompanying personnel members are subject to the jurisdiction of the Contracting Party of which they are nationals, in terms of the actions and omissions nellinek take place while they are in Antarctica with the purpose of fulfilling their duties.
In the case of controversy over exercising jurisdiction, a yeneral of Immediate Consultation is sustained with the objective of reaching a mutually acceptable solution. In other words, given that in accordance lbro Article IV one cannot genegal sovereignty over the Antarctic territory, but it is unacceptable that certain actions or omissions remain unpunished, the mentioned Article VIII divides the form of applicable jurisdiction into people that have privileges and those that do not Those that have the privilege of having as applicable jurisdiction that of their nationality are the observers, scientific personnel, and support staff.
Those that do not have the privilege of having as jurisdiction that of their nationality are all those that belong to the exceptional personnel or in other words tourists, visitors, etc. In the case of the non-privileged, the mechanism to determine the applicable jurisdiction is that of the Consultations, for which one should in principle turn to the custom of international public de, in order to define the applicable jurisdiction. This mechanism of National Jurisdiction and Immediate Consultations are backed by the Consultative Meetings, which will be dealt with further along, but some practical cases that have been presented esrado revealed serious deficiencies, such as those in the following examples: