MELBOURNE JOURNAL OF INTERNATIONAL LAW

THE ANTARCTIC TREATY AT SIXTY YEARS:

PAST, PRESENT AND FUTURE

The Antarctic Treaty at Sixty Years: Past, Present and Future

DONALD R ROTHWELL

The 1959 Antarctic Treaty entered into force on 23 June 1961. It remains as a unique example of

an international law instrument providing a governance mechanism for a single continent. The

Treaty celebrates its 60

anniversary at a time when Antarctica is increasingly coming under the

spotlight with debate as to whether a Cold War treaty is capable of continuing to provide an

appropriate governance framework for Antarctica in the 21

century. The debate has raised

issues with respect to the ongoing interests and motivations of the seven Antarctic claimant states

(Argentina, Australia, Chile, France, New Zealand, Norway, United Kingdom), the role of

historically prominent non-claimant states such as the United States and the Russian Federation,

and the interests of others such as China. This article assesses whether the Treaty and the

associated ‘Antarctic Treaty System’ are sufficiently resilient to address the challenges

confronting Antarctic governance in the 2020s. These challenges extend to accommodating the

interests of the founding Treaty parties and subsequent Treaty parties with respect to their

Antarctic aspirations, and the ongoing interest of states in Antarctica’s mineral resources.

Particular attention is given to whether it remains possible for Treaty parties to request an art

XII ‘Review Conference’ and the treaty review mechanisms that exist within the 1991 Madrid

Protocol on Environmental Protection. If the Antarctic Treaty is not capable of amendment, the

options for treaty withdrawal are assessed.

CONTENTS

I Introduction ............................................................................................................... 1

II Antarctic Treaty ........................................................................................................ 4

III Antarctic Treaty System ........................................................................................... 6

IV Challenges at 60 Years ............................................................................................. 8

A Resource and Environmental Challenges ................................................... 10

B Interests of the Parties................................................................................. 13

V Review Conferences and Treaty Withdrawal ......................................................... 18

A Antarctic Treaty Review Conference ......................................................... 19

B Madrid Protocol Review Conference ......................................................... 21

C Treaty Law and Treaty Withdrawal ............................................................ 22

VI Concluding Remarks ............................................................................................... 24

I INTRODUCTION

Negotiations for The Antarctic Treaty (‘Antarctic Treaty’)

were concluded in

Washington on 1 December 1959 and the Treaty subsequently entered into force

on 23 June 1961. The Treaty remains as a unique example of an international law

instrument providing a governance mechanism for a single continent. The Treaty

celebrates 60 years since its entry into force in 2021 at a time when Antarctica,

and the polar regions more generally, are increasingly coming under the spotlight

Donald R Rothwell, Professor of International Law, ANU College of Law, ANU, Canberra,

Australia. The author acknowledges comments provided by Dr Alan Hemmings and

anonymous reviewers on an earlier version of this article and the research assistance of Kate

Renehan.

The Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into

force 23 June 1961) (‘Antarctic Treaty’).

2 Melbourne Journal of International Law [Vol 22

with respect to their governance and applicable international law mechanisms.

Unlike the Arctic, however, where there is no regional treaty-based framework,

the Antarctic Treaty has been the legal foundation for governance in Antarctica

and parts of the adjacent Southern Ocean. The Treaty spawned the Antarctic

Treaty System (‘ATS’) which is generally considered to encompass the

associated international instruments and treaties adopted by the Antarctic Treaty

Consultative Parties (‘ATCPs’), including the 1980 Convention on the

Conservation of Antarctic Marine Living Resources (‘CCAMLR’)

and the 1991

Madrid Protocol on Environmental Protection to the Antarctic Treaty (‘Madrid

Protocol’).

Membership of the Antarctic Treaty has also grown from the

original 13 parties in 1961 to a total of 54 parties in 2021.

The Antarctic Treaty’s 60

anniversary coincides with a debate as to whether

a Cold War treaty is capable of continuing to provide an appropriate governance

framework for Antarctica in the 21

century.

The debate has raised issues with

respect to the ongoing interests and motivations of the seven Antarctic claimant

states (Argentina, Australia, Chile, France, New Zealand, Norway, United

Kingdom), the role of historically prominent non-claimant states such as the

United States and the Russian Federation, and the interests of powerful states

See, eg, Timo Koivurova, ‘How to Improve Arctic International Governance’ (2016) 6(1)

UC Irvine Law Review 83; Alan D Hemmings, ‘The Hollowing of Antarctic Governance’ in

Prem Shankar Goel, Rasik Ravindra and Sulagna Chattopadhyay (eds), Science and

Geopolitics of the White World: Arctic-Antarctic-Himalaya (Springer, 2018) 17.

The Arctic Council has established a framework for Arctic regional cooperation; however

Arctic states have rejected the need for an ‘Arctic-wide’ Antarctic type treaty: see generally

Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, ‘Arctic Regional

Agreements and Arrangements’ in Karen N Scott and David L VanderZwaag (eds),

Research Handbook on Polar Law (Edward Elgar Publishing, 2020) 64; Oran R Young,

‘Whither the Arctic? Conflict or Cooperation in the Circumpolar North’ (2009) 45(232)

Polar Record 73.

Convention on the Conservation of Antarctic Marine Living Resources, opened for signature

20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982) (‘CCAMLR’).

Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4

October 1991, 2941 UNTS 3 (entered into force 14 January 1998) (‘Madrid Protocol’).

Some of this literature arises in the context of ‘Antarctic futures’ or assessing future legal

options: see, eg, Bob Frame, ‘A Typology for Antarctic Futures’ (2019) 9(1) Polar Journal

236; Luis Valentín Ferrada, ‘Five Factors That Will Decide the Future of Antarctica’ (2018)

8(1) Polar Journal 84; Sanjay Chaturvedi, ‘The Future of Antarctica: Minerals,

Bioprospecting and Fisheries’ in Mark Nuttall, Torben R Christensen and Martin J Siegert

(eds), The Routledge Handbook of the Polar Regions (Routledge, 2018) 403; Daniela

Liggett et al, ‘Is It All Going South? Four Future Scenarios for Antarctica’ (2017) 53(5)

Polar Record 459; Alan D Hemmings, ‘Re-Justifying the Antarctic Treaty System for the

21st Century: Rights, Expectations and Global Equity’ in Richard C Powell and Klaus

Dodds (eds), Polar Geopolitics?: Knowledges, Resources and Legal Regimes (Edward

Elgar, 2014) 55; Karen N Scott, ‘Managing Sovereignty and Jurisdictional Disputes in the

Antarctic: The Next Fifty Years’ (2009) 20(1) Yearbook of International Environmental

Law 3. For an ‘Antarctic futures’ science perspective, see SR Rintoul et al, ‘Choosing the

Future of Antarctica’ (2018) 558(7709) Nature 233.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 3

that are beginning to express a strong interest in polar affairs such as China.

The

interests of some states that joined the Treaty since 1961 have also been called

into question.

For example, are they fully supportive of the key principles of the

Antarctic Treaty? Are they seeking to use scientific engagement in Antarctica

and their participation in the Antarctic Treaty as a means to gain leverage in

Antarctic affairs and to eventually assert an Antarctic territorial claim? These

questions are also being raised at a time when, as a result of climate change and

technological advances, Antarctica is becoming more accessible to both states

and others (adventurers, corporations, tourists, non-state actors), resulting in new

challenges for Antarctic governance that were unforeseen in 1961. The isolation

Antarctica once enjoyed from global affairs is no more. This was highlighted in

2020 when for much of the year it was the only continent to have not had

COVID-19 cases during the pandemic. This streak was broken in December

2020 when COVID-19 was found amongst personnel at Chilean Antarctic

research stations.

The reality is that Antarctica is not the same as when the Antarctic Treaty was

negotiated. At that time, the continent was just emerging from the ‘heroic era’

associated with its initial exploration and the territorial claims that followed.

Science was a constant theme throughout this early period, culminating in the

1957–58 International Geophysical Year, which in turn flowed through to the

negotiation of the Antarctic Treaty by only 12 states. The mechanisms associated

with Antarctica’s governance at that time, when effectively a ‘club’ of states

oversaw Antarctic affairs,

may not be appropriate in a different century and at a

time when the legacies of those states engaged in the initial exploration and

discovery of Antarctica are fading in both the political and public consciousness.

This article assesses whether the Antarctic Treaty and the ATS are sufficiently

resilient to address the challenges that now confront Antarctic governance in the

2020s. These challenges extend to accommodating the interests of the founding

Antarctic Treaty parties and subsequent Treaty parties with respect to their

Marcus Haward, ‘Contemporary Challenges to the Antarctic Treaty and Antarctic Treaty

System: Australian Interests, Interplay and the Evolution of a Regime Complex’ (2017) 9(1)

Australian Journal of Maritime and Ocean Affairs 21; Klaus Dodds and Alan D Hemmings,

‘Britain and the British Antarctic Territory in the Wider Geopolitics of the Antarctic and the

Southern Ocean’ (2013) 89(6) International Affairs 1429; VV Lukin, ‘Russia’s Current

Antarctic Policy’ (2014) 4(1) Polar Journal 199. See generally Alejandra Mancilla, ‘The

Moral Limits of Territorial Claims in Antarctica’ (2018) 32(3) Ethics and International

Affairs 339. Recent scholarship has suggested Ecuador is also a claimant state, but this view

is not widely supported: see Robert Keith Headland, ‘Territory and Claims in the Antarctic

Treaty Region: A Disquisition on Historical and Recent Developments’ (2020) 57(2)

Cartographic Journal 160, 165.

See, eg, Anne-Marie Brady, ‘China’s Rise in Antarctica?’ (2010) 50(4) Asian Survey 759.

‘COVID-19 Cases Linked to Chilean Antarctic Operations Rise to 58’, ABC News (online,

23 December 2020) <https://www.abc.net.au/news/2020-12-23/more-covid-cases-linked-to-

chilean-antarctic-base/13009706>, archived at <https://perma.cc/DG8N-EJPN>. See also

Bob Frame and Alan D Hemmings, ‘Coronavirus at the End of the World: Antarctica

Matters’ (2020) 2(1) Social Sciences and Humanities Open 100054:1–5.

The notion that Antarctica was governed by a ‘club’ of states gained prominence in the

1970s and 1980s at a time when the ATS was under critique from certain states in the

United Nations General Assembly: see, eg, Patrick T Bergin, ‘Antarctica, the Antarctic

Treaty Regime, and Legal and Geopolitical Implications of Natural Resource Exploration

and Exploitation’ (1988) 4(1) Florida International Law Journal 1; FM Auburn,

‘Consultative Status under the Antarctic Treaty’ (1979) 28(3) International and

Comparative Law Quarterly 514.

4 Melbourne Journal of International Law [Vol 22

Antarctic aspirations such as the building of new scientific bases, and the

ongoing interest of states in Antarctica’s mineral resources. Particular attention is

given to whether it remains possible for Treaty parties to request an art XII

‘Review Conference’ and the treaty review mechanisms that exist within the

Madrid Protocol. If the Antarctic Treaty is not capable of amendment, the

options for treaty withdrawal are assessed. The article concludes with some

observations as to the future of the Antarctic Treaty and the ATS.

II ANTARCTIC TREATY

The Antarctic Treaty was adopted during the height of the Cold War

following a conference in Washington that brought together all key states then

interested in Antarctic affairs.

That the Treaty was able to be negotiated in a

relatively short period, albeit against the backdrop of preparatory meetings, was

a testament to the level of consensus that existed around key issues at the time. A

total of 12 states attended the negotiations and all became original signatories to

the Treaty. These states were Argentina, Australia, Belgium, Chile, France,

Japan, New Zealand, Norway, South Africa, the Soviet Union (‘USSR’), UK and

the US. This group included the seven territorial claimants, the US and the

USSR, the latter two of which had substantial historical interests in Antarctica,

including in the immediate postwar period.

Pivotal to the Treaty being

concluded was art IV concerning sovereignty, the effect of which was to set

aside and neutralise sovereignty issues for the duration of the Treaty. The result

was that the existing seven territorial claimants were unable to make any new

claims or enlarge their existing claims. Potential territorial claimants such as the

US and the USSR were likewise constrained from their ability to assert claims.

Article IV also sought to deal with future sovereignty claims during the life of

the Treaty, or at any time thereafter. The Treaty provided in art IV(2) that no

activities taking place in Antarctica while the Treaty was in force were to

‘constitute a basis for asserting, supporting or denying a claim to territorial

sovereignty in Antarctica’.

Having resolved, at least for the term of the Antarctic Treaty, the issue of

sovereignty, the Treaty provided for a series of measures that were designed to

facilitate the other objective of the Treaty which was to ensure that Antarctica

remained a place where scientific research could be freely undertaken. This was

reflected in art II, which sought to continue the spirit of the International

For a discussion of the negotiation of the treaty and its diplomatic history, see Rip Bulkeley,

‘The Political Origins of the Antarctic Treaty’ (2010) 46(236) Polar Record 9. See generally

John Hanessian, ‘The Antarctic Treaty 1959’ (1960) 9(3) International and Comparative

Law Quarterly 436; Robert D Hayton, ‘The Antarctic Settlement of 1959’ (1960) 54(2)

American Journal of International Law 349.

For a discussion on US and USSR interests, see FM Auburn, Antarctic Law and Politics (C

Hurst, 1982) 61–83.

The status of sovereignty under the Antarctic Treaty is one of the most commented upon

aspects and has generated an extensive literature: see, eg, J Peter A Bernhardt, ‘Sovereignty

in Antarctica’ (1975) 5(2) California Western International Law Journal 297; Donald R

Rothwell, ‘Sovereignty and the Antarctic Treaty’ (2010) 46(236) Polar Record 17.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 5

Geophysical Year.

Complementing this measure was art I, which provided that

Antarctica was to be only used for peaceful purposes and that a range of military

activities were prohibited. These pivotal provisions were supplemented by

measures that sought to facilitate the exchange of scientific information,

prohibit nuclear explosions

and place constraints on the exercise of

jurisdiction.

The Treaty’s limits were set in art VI to encompass the area south

of 60° south latitude, including ice shelves. A rudimentary governance regime

was provided for by way of a regular meeting of the original parties in addition

to those states which subsequently acceded to the Treaty and were able to

demonstrate their scientific credentials through the conduct of ‘substantial

scientific research activity’ as interpreted under art IX(2). These Treaty parties

are collectively referred to as the Antarctic Treaty Consultative Parties

(‘ATCPs’). At the meeting of parties that became known as the Antarctic Treaty

Consultative Meetings (‘ATCMs’), recommendations could be adopted that

sought to advance the key objectives of the Treaty in addition to the preservation

and conservation of Antarctic living resources. The Treaty and associated

instruments under the ATS also have formal procedures for dispute settlement,

though to date they have not been activated.

In addition to these measures the Antarctic Treaty also included two sets of

mechanisms for modification and amendment. The first required the unanimous

consent of the ATCPs; that is, those states eligible to attend the ATCMs.

The

second provided that after 30 years any of the ATCPs could request a conference

of the parties to ‘review the operation of the Treaty’.

Amendments to the

Treaty could be adopted by a majority at such a conference, after which

following ratification, they would enter into force.

However, if such a measure

had not entered into force within two years of its adoption, then any party could

give notice of its intention to withdraw from the Treaty.

The effects of these

provisions are discussed in more detail in Part V below.

The Antarctic Treaty entered into force on 23 June 1961 with an initial total

of 13 states parties, comprising the original 12 states that attended the 1959

Washington conference and Poland, which also had an interest in Antarctic

affairs and became the first state to accede to the Treaty. Over the intervening 60

years the number of parties has grown to 54, of which there are 29 ATCPs, as

reflected in Table 1. What the historical data reveals regarding Antarctic Treaty

On the significance of the International Geophysical Year for the Antarctic Treaty, see

Donald R Rothwell, ‘The IPY and the Antarctic Treaty System: Reflections 50 Years Later’

in Jessica M Shadian and Monica Tennberg (eds), Legacies and Change in Polar Sciences:

Historical, Legal and Political Reflections on the International Polar Year (Ashgate, 2009)

125.

Antarctic Treaty (n 1) art III.

Ibid art V.

Ibid art VIII.

Ibid art XI. For an analysis of the ATS dispute settlement regime, see Donald R Rothwell,

‘Dispute Settlement under the Antarctic Treaty System’ in Hélène Ruiz Fabri (ed), Max

Planck Encyclopedia of International Procedural Law (Oxford University Press, online at

June 2018).

Antarctic Treaty (n 1) art XII(1).

Ibid art XII(2)(a).

Ibid art XII(2)(b).

Ibid art XII(2)(c).

6 Melbourne Journal of International Law [Vol 22

membership is that during its first decade the Treaty attracted little additional

interest and support from the international community. The 1980s, however, was

a peak period of interest in Antarctic Treaty matters, with 18 states joining

during that decade to effectively double the membership. The addition of new

members hit a trough in the first decade of the 21

century but has revived to

match the levels set during the 1990s since 2010.

Table 1: Antarctic Treaty Parties, Indicating Year Status Attained

Number/Total

Period

States

13/13

1961

Argentina, Australia, Belgium, Chile, France,

Japan, New Zealand, Norway, Poland, South

Africa, UK, US, USSR (Russia)

2/15

1962–69

Denmark (1965), Netherlands (1967)

4/19

1970–79

Brazil (1975), Bulgaria (1978), Germany (1979),

Romania (1971)

18/37

1980–89

Austria (1987), Canada (1988), China (1983),

Colombia (1989), Cuba (1984), Ecuador (1987),

Finland (1984), Greece (1987), Hungary (1984),

India (1983), Italy (1981), Korea (DPRK) (1987),

Korea (ROK) (1986), Papua New Guinea (1981),

Peru (1981), Spain (1982), Sweden (1984),

Uruguay (1980)

7/44

1990–99

Czechia (1993), Guatemala (1991), Slovakia

(1993), Switzerland (1990), Turkey (1996),

Ukraine (1992), Venezuela (1999)

3/47

2000–09

Belarus (2006), Estonia (2001), Monaco (2008)

7/54

2010–19

Iceland (2015), Kazakhstan (2015), Malaysia

(2011), Mongolia (2015), Pakistan (2012),

Portugal (2010), Slovenia (2019)

54 Total

III ANTARCTIC TREATY SYSTEM

The Antarctic Treaty provided a foundation for the subsequent development

of the ATS. This initially occurred through the adoption at ATCMs of

recommendations which sought to reflect the agreed views of the ATCPs on a

range of matters that fell within the remit of the Treaty. Increasingly the ATCPs

sought to adopt recommendations dealing with Antarctic environmental and

resource issues, and this resulted in agreement being reached on additional

‘Parties’, Secretariat of the Antarctic Treaty (Web Page)

<https://www.ats.aq/devAS/Parties?lang=e>, archived at <https://perma.cc/KQ5L-7M7T>.

For an assessment of Antarctic Treaty membership, see Melissa Weber, ‘Power Politics in

the Antarctic Treaty System’ in Tim Stephens and David L VanderZwaag (eds), Polar

Oceans Governance in an Era of Environmental Change (Edward Elgar, 2014) 86.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 7

instruments that were negotiated to operate alongside the Antarctic Treaty or

within the framework of the Treaty. These instruments are:

• the 1972 Convention for the Conservation of Antarctic Seals

(‘CCAS’);

• CCAMLR; and

• the Madrid Protocol.

All of these have entered into force, albeit with varying levels of support.

addition, in 1988, the Convention on the Regulation of Antarctic Mineral

Resource Activities (‘CRAMRA’)

was also concluded. This convention was

designed to facilitate the development of a mining regime in Antarctica which

would have been the first time such activities would have taken place on the

continent. However, CRAMRA was effectively abandoned when key ATCPs

decided to favour a regime for enhanced environmental protection rather than

Antarctic mining, thereby resulting in the adoption of the Madrid Protocol.

This decision was a major turning point for the ATS as the ATCPs elected to

support comprehensive Antarctic environmental protection over commercial

mining. In doing so, Antarctica became further embedded in the global

consciousness as a place reserved for environmental protection, the promotion of

science and peaceful international relations, rather than the discord that may have

developed if commercial mining had proceeded.

The effect of these additional instruments has been to create a regime for the

regulation and protection of Antarctic seals, a regime for the regulation of

Antarctic marine living resources which over time has been expanded from the

regulation of fishing activities to now encompass marine protected areas, a

prohibition on Antarctic minerals activities and a regime for the comprehensive

protection of the Antarctic environment. This latter achievement, which has been

realised under the provisions of the Madrid Protocol, also resulted in the creation

Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, 1080

UNTS 175 (entered into force 11 March 1978) (‘CCAS’).

The total number of parties to the various instruments is as follows: CCAS — 16; CCAMLR

— 36 (26 Commission for the Conservation of Antarctic Marine Living Resources members

and 10 acceding states); Madrid Protocol — 41. CCAMLR membership is not limited to

Antarctic Treaty parties and includes the following non-Antarctic Treaty members: Cook

Islands, European Union, Mauritius, Namibia, Panama and Vanuatu; see details at

‘Membership’, Commission for the Conservation of Antarctic Marine Living Resources

(Web Page, 19 March 2020) <https://www.ccamlr.org/en/organisation/membership>,

archived at <https://perma.cc/6KQN-8CTW>.

Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature

25 November 1988, 27 ILM 859 (not yet in force).

See, eg, Jorg G Podehl and Donald R Rothwell, ‘New Zealand and the Convention on the

Regulation of Antarctic Mineral Resource Activities (CRAMRA): An Unhappy Divorce?’

(1992) 22(1) Victoria University of Wellington Law Review 23, 33–4.

8 Melbourne Journal of International Law [Vol 22

of the Committee for Environmental Protection (‘CEP’), which oversees a range

of environmental protection measures under the Madrid Protocol.

A consequence of these developments is that annual ATCMs have now

become more important because of the monitoring and oversight role they play

with respect to the Antarctic environment.

Another consequence of the

development of the ATS has been additional commitments and obligations for

the states parties. ATCPs, including those states that aspire to that status, are

expected to have become parties to the Madrid Protocol.

Twelve of the current

25 non-ATCPs have also adopted the Madrid Protocol and thereby have shown

their commitment to protection of the Antarctic environment.

IV CHALLENGES AT 60 YEARS

The Antarctic Treaty and the ATS have been able to respond to a number of

political and legal challenges since 1959. Some of those challenges — including

the failure to address the management of Antarctic resources or the Antarctic

environment, and developments that have subsequently occurred in international

law such as the law of the sea — have arisen as a result of the legacy of the

Treaty itself given that it only comprises 14 articles. These challenges have been

responded to through the negotiation and adoption of additional instruments such

as CCAMLR and the Madrid Protocol, however these negotiations also created

new tensions and challenges which needed to be politically managed. In

particular, the conclusion of CRAMRA in 1988 was the catalyst for a significant

backlash led by Australia and France which eventually resulted in the

abandonment of the Treaty and adoption of the Madrid Protocol in its place.

For an assessment of the state of Antarctic governance following the conclusion of these

instruments, see Davor Vidas (ed), Implementing the Environmental Protection Regime for

the Antarctic (Kluwer Academic Publishers, 2000); Donald R Rothwell, ‘Polar

Environmental Protection and International Law: The 1991 Antarctic Protocol’ (2000) 11(3)

European Journal of International Law 591; Christopher C Joyner, Governing the Frozen

Commons: The Antarctic Regime and Environmental Protection (University of South

Carolina Press, 1998); Olav Schram Stokke and Davor Vidas (eds), Governing the

Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (Cambridge

University Press, 1996); Catherine Redgwell, ‘Environmental Protection in Antarctica: The

1991 Protocol’ (1994) 43(3) International and Comparative Law Quarterly 599; Francisco

Orrego Vicuña, ‘The Protocol on Environmental Protection to the Antarctic Treaty:

Questions of Effectiveness’ (1994) 7(1) Georgetown International Environmental Law

Review 1; Francesco Francioni, ‘The Madrid Protocol on the Protection of the Antarctic

Environment’ (1993) 28(1) Texas International Law Journal 47.

COVID-19 resulted in cancellation of the 2020 ATCM: Secretariat of the Antarctic Treaty,

‘Cancellation of ATCM XLIII — CEP XXIII’ (Media Release, 13 March 2020)

<https://www.ats.aq/devph/en/news/176>, archived at <https://perma.cc/G7MG-R76G>.

Madrid Protocol (n 5) art 22(4).

These states are Belarus, Canada, Colombia, Greece, Malaysia, Monaco, Pakistan, Portugal,

Romania, Switzerland, Turkey and Venezuela: ‘Parties’ (n 23).

For this author’s assessment of the Antarctic Treaty after 30 years, see Donald R Rothwell,

‘The Antarctic Treaty: 1961–1991 and Beyond’ (1992) 14(1) Sydney Law Review 62. For an

assessment at the 50

anniversary of the Antarctic Treaty, see Klaus Dodds, ‘Governing

Antarctica: Contemporary Challenges and the Enduring Legacy of the 1959 Antarctic

Treaty’ (2010) 1(1) Global Policy 108; Peter J Beck, ‘Fifty Years On: Putting the Antarctic

Treaty into the History Books’ (2010) 46(236) Polar Record 4.

For an Australian perspective on these developments, see Andrew Jackson and Peter Boyce,

‘Mining and “World Park Antarctica”, 1982–1991’ in Marcus Haward and Tom Griffiths

(eds), Australia and the Antarctic Treaty System: 50 Years of Influence (UNSW Press, 2011)

243.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 9

Another significant issue that was addressed during the 1980s was the debate

over the ‘Question of Antarctica’ in the United Nations General Assembly.

United Nations members from the G77 bloc sponsored a debate that raised

questions over the legitimacy of the ATS, arguing that it comprised a closed

‘club’ of states who, at that time, were seeking to conclude an Antarctic minerals

regime that only they would benefit from. This critique was responded to in the

UN by leading Antarctic states,

was eventually managed by the increased

number of new states that gained ATCP status in the 1980s,

and the about turn

that resulted in CRAMRA’s abandonment and the adoption of the Madrid

Protocol. Accordingly, the importance of art 7 of the Madrid Protocol and the

prohibition that it places on any activity relating to mineral resources, other than

with respect to scientific research, should not be underestimated. The prohibition

on mining significantly changed the discourse about Antarctica from one in

which the claimant states and ATCPs were characterised as seeking to assert

certain privileges over the continent and enjoy economic benefits to the

exclusion of others, to one where Antarctica was presented as a ‘natural

reserve’

that needed to be protected from the potentially devastating

environmental impact arising from mining activities.

That change in direction

for Antarctica has created significant legacies and expectations which still

resonate today in global environmental discourse.

The expansion of the ATS

over the decades so as to include the additional instruments has nevertheless

been successful in keeping the focus on Antarctica being used for peaceful

purposes and scientific research.

See generally Peter J Beck, ‘Twenty Years On: The UN and the “Question of Antarctica,”

1983–2003’ (2004) 40(214) Polar Record 205; Peter J Beck, ‘Antarctica at the UN 1988:

Seeking a Bridge of Understanding’ (1989) 25(155) Polar Record 329; Moritaka Hayashi,

‘The Antarctica Question in the United Nations’ (1986) 19(2) Cornell International Law

Journal 275; Peter J Beck, ‘The United Nations’ Study on Antarctica, 1984’ (1985) 22(140)

Polar Record 499.

For Australia’s role in these debates, see Marcus Haward and David Mason, ‘Australia, the

United Nations and the Question of Antarctica’ in Marcus Haward and Tom Griffiths (eds),

Australia and the Antarctic Treaty System: 50 Years of Influence (UNSW Press, 2011) 202.

For the reflections of Richard Woolcott (Australian Ambassador to the United Nations

1982–88) on this period in the United Nations, see Richard Woolcott, The Hot Seat:

Reflections on Diplomacy from Stalin’s Death to the Bali Bombings

(HarperCollinsPublishers, 2003) ch 14.

See below Table 2.

Madrid Protocol (n 5) art 2.

See, eg, Kees Bastmeijer and Steven van Hengel, ‘The Role of the Protected Area Concept

in Protecting the World’s Largest Natural Reserve: Antarctica’ (2009) 5(1) Utrecht Law

Review 61, 64–6; Redgwell (n 28); Francioni (n 28) 66–70; SKN Blay, ‘New Trends in the

Protection of the Antarctic Environment: The 1991 Madrid Protocol’ (1992) 86(2) American

Journal of International Law 377; Rodney R McColloch, ‘Protocol on Environmental

Protection to the Antarctic Treaty — The Antarctic Treaty — Antarctic Minerals

Convention — Wellington Convention — Convention on the Regulation of Antarctic

Mineral Resource Activities’ (1992) 22(1) Georgia Journal of International and

Comparative Law 211.

See Rupert Summerson and Tina Tin, ‘Twenty Years of Protection of Wilderness Values in

Antarctica’ (2018) 8(2) Polar Journal 265; Tim Stephens, ‘The Antarctic Treaty System and

the Anthropocene’ (2018) 8(1) Polar Journal 29; Kees Bastmeijer, ‘Introduction: The

Madrid Protocol 1998–2018. The Need to Address “the Success Syndrome”’ (2018) 8(2)

Polar Journal 230.

10 Melbourne Journal of International Law [Vol 22

A Resource and Environmental Challenges

The principal challenges facing the Antarctic Treaty and the ATS at its 60

anniversary are resource and environmental-related. With respect to resources,

while the ATS sought to respond to the management of fisheries through the

adoption of CCAMLR and the issue of mineral resources through art 7 of the

Madrid Protocol, there remain ongoing challenges and tensions. CCAMLR

continues to confront issues associated with illegal, unreported and unregulated

fishing,

and the enforcement and regulation of a fisheries regime in the

Southern Ocean that neutralises traditional coastal state sovereignty and places

emphasis on flag state and CCAMLR-member state enforcement occurring in one

of the most remote bodies of water in the world. CCAMLR has also faced some

challenges to its consensus-based decision-making processes following division

amongst parties over efforts to agree upon Southern Ocean marine protected

areas in the Ross Sea and adjacent waters.

While mining activities have been

set aside for the duration of the Madrid Protocol,

as discussed below, there

remains ongoing debate as to whether the mining prohibition may be overturned

as a result of a review of the Protocol or the actions of states that choose to act

outside of the ATS. There also remain issues regarding the status of the Southern

Ocean deep seabed, which is beyond the jurisdiction of coastal states and falls

within the remit of the International Seabed Authority.

These raise multiple

complex issues under the 1982 United Nations Convention on the Law of the Sea

(‘LOSC’),

including LOSC’s application within the Southern Ocean and

interaction with the ATS.

One particular issue is whether, given the

environmental challenges associated with deep seabed mining in the Southern

Ocean, the International Seabed Authority would be prepared to license states to

undertake initial exploration of the Southern Ocean deep seabed.

Another

See, eg, D Miller and NM Slicer, ‘CCAMLR and Antarctic Conservation: The Leader to

Follow?’ in Serge M Garcia, Jake Rice and Anthony Charles (eds), Governance of Marine

Fisheries and Biodiversity Conservation: Interaction and Coevolution (Wiley Blackwell,

2014) 253.

See Li Chaolun and Yang Guang, ‘Marine Protected Areas in the Southern Ocean: Status

and Future’ (2018) 29(4) Advances in Polar Science 262.

For a review of the potential of mining taking place in Antarctica in a contemporary context,

see Karen N Scott, ‘Ice and Mineral Resources: Regulatory Challenges of Commercial

Exploitation’ in Daniela Liggett et al (eds), Exploring the Last Continent: An Introduction to

Antarctica (Springer, 2015) 487.

See Scott Joblin, ‘The Legal Status Effossio of the Hydrocarbons of the Southern Ocean

Area: Questions of Antarctic Environmental Protection and Possible Minerals Exploitation

under International Law’ (PhD Thesis, Australian National University, 21 December 2019);

Linda A Malone, ‘The Waters of Antarctica: Do They Belong to Some States, No States, or

All States?’ (2018) 43(1) William and Mary Environmental Law and Policy Review 53;

Christopher C Joyner, ‘The Antarctic Treaty and the Law of the Sea: Fifty Years On’ (2010)

46(1) Polar Record 14; Luigi Migliorino, ‘The New Law of the Sea and the Deep Seabed of

the Antarctic Region’ in Francesco Francioni and Tullio Scovazzi (eds), International Law

for Antarctica (Kluwer Law International, 2

ed, 1996) 395.

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982,

1833 UNTS 397 (entered into force 16 November 1994) (‘LOSC’).

See Christopher C Joyner, Antarctica and the Law of the Sea (Martinus Nijhoff Publishers,

1992).

For a discussion of legal issues associated with such activity, see Isabel Feichtner,

‘Contractor Liability for Environmental Damage Resulting from Deep Seabed Mining

Activities in the Area’ (2020) 114 Marine Policy 103502:1–10; Joblin (n 43).

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 11

Antarctic resource-related activity that has been under review for over a decade

is bioprospecting.

Regulation of bioprospecting is challenging, and it raises

critical issues with respect to its characterisation.

Is it a form of scientific

research or is it a commercially extractive activity akin to mining? ATS

regulation is made difficult because of the limited reach of the Antarctic Treaty,

an example being bioprospecting is not an activity that falls within the scope of

art 7 of the Madrid Protocol. Bioprospecting undertaken as scientific research

within an Antarctic Treaty context also needs to be assessed against any potential

environmental impact, even if the activity is one that is minor or transitory.

Environmental protection and management remains an ongoing challenge. A

prominent example has been how proposals for new scientific research stations

from both current and prospective ATCPs are to be assessed against the

environmental standards of the Madrid Protocol. As the Protocol’s annex I

standards of environmental impact assessment requiring in some instances

comprehensive environmental evaluation have been applied, some states have

found their proposals for station upgrades and development have been deferred

and delayed with consequential impacts upon their Antarctic programs.

related issue arising from another human activity in Antarctica is that of tourism.

Prior to the COVID-19 pandemic, a surge in passenger numbers meant that there

had been more visitations to Antarctica than at any other time in its history.

This has resulted in a range of challenges relating not only to environmental

For a discussion of a recent bioprospecting activity, see Mariana Elizabeth Danilovich et al,

‘Antarctic Bioprospecting: In Pursuit of Microorganisms Producing New Antimicrobials

and Enzymes’ (2018) 41(7) Polar Biology 1417.

See generally Julia Jabour-Green and Dianne Nicol, ‘Bioprospecting in Areas outside

National Jurisdiction: Antarctica and the Southern Ocean’ (2003) 4(1) Melbourne Journal of

International Law 76. For a detailed discussion of bioprospecting, see Tullio Scovazzi,

‘Bioprospecting on the Deep Seabed: A Legal Gap Requiring to be Filled’ in Francesco

Francioni and Tullio Scovazzi (eds), Biotechnology and International Law (Hart Publishing,

2006) 81; Patrizia Vigni, ‘Antarctic Bioprospecting: Is It Compatible with the Value of

Antarctica as a Natural Reserve?’ in Francesco Francioni and Tullio Scovazzi (eds),

Biotechnology and International Law (Hart Publishing, 2006) 111; Ann-Isabelle Guyomard,

‘Bioprospecting in Antarctica: A New Challenge for the Antarctic Treaty System’ in

Francesco Francioni and Tullio Scovazzi (eds), Biotechnology and International Law (Hart

Publishing, 2006) 147.

See Madrid Protocol (n 5) annex I art 2(2).

See, eg, Secretariat of the Antarctic Treaty, ‘CEP XXI Report’ in Secretariat of the Antarctic

Treaty, Final Report of the Forty-First Antarctic Treaty Consultative Meeting (2018) vol 1,

61, 70–1 [19]–[20].

At the 2018 ATCM, it was reported that

Antarctic tourism continued to be primarily focused on traditional commercial ship-

borne tourism in the Antarctic Peninsula, which accounted for over 95% of all landed

activity. In the 2017–18 season, 42,576 people landed in Antarctica, including those

from IAATO land-based operators, which surpassed the previous season. IAATO

noted that this was in part due to vessels being operated with higher passenger

capacity and that the industry was benefitting from strong world economic growth …

IAATO’s estimates for the 2018–19 season indicated that passenger numbers would

rise to circa 55,764 individuals, in line with global trends of travel growth to remote

and high latitude places.

Secretariat of the Antarctic Treaty, ‘Final Report’ in Secretariat of the Antarctic Treaty,

Final Report of the Forty-First Antarctic Treaty Consultative Meeting (2018) vol 1, 13, 36

[73]. See also Nicole A Bender, Kim Crosbie and Heather J Lynch, ‘Patterns of Tourism in

the Antarctic Peninsula Region: A 20-Year Analysis’ (2016) 28(3) Antarctic Science 194.

As to the impact of the pandemic on Antarctic tourism, see generally Frame and Hemmings

(n 9).

12 Melbourne Journal of International Law [Vol 22

impact assessment but also pollution arising from increased shipping

operations.

It has also raised concerns about the emergency response

capabilities of the Antarctic Treaty parties in the event of a maritime incident.

While the Madrid Protocol has a number of provisions capable of regulating

tourism, the effectiveness of these measures is dependent upon individual states,

especially flag states, and national laws in this respect can prove to be variable.

Antarctica is also confronting the impact of climate change,

however this is

not something the ATS has oversight of as it is a global environmental, legal and

political issue. The international climate law regime postdates the adoption of the

ATS, and, notwithstanding the sensitivity of Antarctica to the impacts of climate

change, no direct reference is made to the region. Nevertheless, this does not

mean that there is no role for the ATCPs in particular in taking a lead role to seek

the development and implementation of a robust global climate regime with a

view to enhance the protection of Antarctica.

In this regard, it can be observed

that all parties to the Antarctic Treaty are also parties to the Paris Agreement and

the 1992 United Nations Framework Convention on Climate Change.

See Sira Engelbertz, Daniela Liggett and Gary Steel, ‘Values Underlying the Management

of Ship-Borne Tourism in the Antarctic Treaty Area’ (2015) 5(2) Polar Journal 334, 345.

For an example of how states approached these emerging challenges, see Daniela Liggett

and Emma J Stewart, ‘Polar Cruise Tourism’ in Karen N Scott and David L VanderZwaag

(eds), Research Handbook on Polar Law (Edward Elgar Publishing, 2020) 293, 317–22.

See, eg, Martin Boyle, ‘Emergency Response in Antarctica’ [2017] (32) (January)

Australian Antarctic Magazine 9; Keyuan Zou and Xinchang Liu, ‘New Trends in China’s

Practice in Antarctic Expedition Management’ (2015) 30(3) International Journal of Marine

and Coastal Law 533.

For recent scientific literature on the evidence of climate change in the Antarctic, see Claire

L Parkinson, ‘A 40-Y Record Reveals Gradual Antarctic Sea Ice Increases Followed by

Decreases at Rates Far Exceeding the Rates Seen in the Arctic’ (2019) 116(29) Proceedings

of the National Academy of Sciences of the United States of America 14414; Alexander A

Robel, Hélène Seroussi and Gerard H Roe, ‘Marine Ice Sheet Instability Amplifies and

Skews Uncertainty in Projections of Future Sea-Level Rise’ (2019) 116(30) Proceedings of

the National Academy of Science of the United States of America 14887; Andrew Shepherd

et al, ‘Trends in Antarctic Ice Sheet Elevation and Mass’ (2019) 46(14) Geophysical

Research Letters 8174.

For proposals on how this regime can be achieved, see Duncan French and Karen Scott,

‘International Legal Implications of Climate Change for the Polar Regions: Too Much, Too

Little, Too Late?’ (2009) 10(2) Melbourne Journal of International Law 631, 652–4.

Paris Agreement, opened for signature 22 April 2016, [2016] ATS 24 (entered into force 4

November 2016); United Nations Framework Convention on Climate Change, opened for

signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994). The US

withdrew from the Paris Agreement as from November 2020; however the Biden

Administration gave notice of the intention of the US to rejoin on 20 January 2021: Joseph

R Biden Jr, ‘Paris Climate Agreement’ (Media Release, White House, 20 January 2021)

<https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/paris-climate-

agreement/>, archived at <https://perma.cc/ZR4B-JVN7>. For a list of parties to the Paris

Agreement and the United Nations Framework Convention on Climate Change, see ‘Paris

Agreement’, United Nations Treaty Collection (Web Page)

<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-7-

d&chapter=27&clang=_en>, archived at <https://perma.cc/5H6R-BA9Z>; ‘United Nations

Framework Convention on Climate Change’, United Nations Treaty Collection (Web Page)

<https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=IND&mtdsg_no=XXVII-

7&chapter=27&Temp=mtdsg3&clang=_en>, archived at <https://perma.cc/8SXN-C5BX>.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 13

B Interests of the Parties

A challenge also exists within the ATS with respect to the differing views and

interests of the parties.

Of the 54 Antarctic Treaty states parties, the core group

remains the 29 ATCPs. These are the states that have historic interests in

Antarctica or, through their commitment to Antarctic science, have indicated a

substantial interest in one of the key pillars of the Antarctic Treaty.

The 29

ATCPs include the original 12 Antarctic Treaty parties and Brazil, Bulgaria,

China, Czechia, Ecuador, Finland, Germany, India, Italy, Korea (ROK),

Netherlands, Peru, Poland, Spain, Sweden, Ukraine and Uruguay. As Table 2

indicates, there have been distinct phases throughout the life of the Treaty when

ATCP status has been attained, with a peak occurring in the 1980s.

Table 2: Antarctic Treaty Consultative Parties, Indicating Year Status

Attained

Number

Period

States

1961

Argentina, Australia, Belgium, Chile, France, Japan, New

Zealand, Norway, South Africa, UK, US, USSR (Russia)

1962–69

1970–79

Poland (1977)

1980–89

Brazil (1983), China (1985), Finland (1989), Germany

(1981), India (1983), Italy (1987), Korea (ROK) (1989),

Peru (1989), Spain (1988), Sweden (1988), Uruguay (1985)

1990–99

Bulgaria (1998), Ecuador (1990), Netherlands (1990)

2000–09

Ukraine (2004)

2010–19

Czech Republic (2014)

29 Total

However, this group itself can be divided into two groups: the 12 original

Antarctic Treaty parties who by virtue of their status comprised the founding

consultative parties and the remaining 17 that have subsequently attained ATCP

status. Of the original 12, legitimate questions could be posed with respect to

whether they all retain the same level of enthusiasm for Antarctic affairs and

science as they did in the 1950s.

Likewise, similar questions could be posed

with respect to those ATCPs which were accredited 30–40 years ago. A

distinction is made in the Antarctic Treaty between the original ATCPs which

retain that status irrespective of their commitment to Antarctica and the art IX(2)

See also Liggett et al (n 6) 461.

For a discussion of ATCP status, see Auburn, ‘Consultative Status under the Antarctic

Treaty’ (n 10); Pavel Sladký, ‘Consultative Status under the Antarctic Treaty’ (2010) 1

Czech Yearbook of International Law 146; Andrew D Gray and Kevin A Hughes,

‘Demonstration of “Substantial Research Activity” to Acquire Consultative Status under the

Antarctic Treaty’ (2016) 35(1) Polar Research 34061:1–12.

‘Parties’ (n 23).

For an analysis of the scientific output of the ATCPs, see John R Dudeney and David WH

Walton, ‘Leadership in Politics and Science within the Antarctic Treaty’ (2012) 31(1) Polar

Research 11075:1–9.

14 Melbourne Journal of International Law [Vol 22

ATCPs which retain their status ‘during such time’ as they demonstrate their

interest in Antarctica by the conduct of scientific research and related activities.

The other observation that can be made is that as highlighted in Table 2 the

number of newly accredited ATCPs has slowed considerably since the peak of

the 1980s when 11 were granted ATCP status. The level of interest in states

attaining ATCP status has diminished in recent decades with only five new

ATCPs admitted since 1990, the most recent being the Czech Republic in

2014.

This general lack of enthusiasm for the Antarctic Treaty is also reflected

by only seven states having become parties in the past decade and a total of only

10 this century,

notwithstanding that there are no constraints upon accession.

There may be multiple reasons for an apparent lack of interest by the majority of

the international community in Antarctic Treaty membership. However, unlike

the United Nations debates of the 1980s over the ‘Question of Antarctica’ there

are no equivalent present discussions occurring over the legitimacy of the Treaty

or the ATS.

Some further observations can be made regarding the mix of states that are

ATS parties. Table 3 provides a breakdown of Antarctic Treaty parties based on

their assigned membership of United Nations Regional Groups.

Given their

historic interest in Antarctica, and complementary interests of some in the Arctic,

it is not surprising that the Western European and Others Group (‘WEOG’)

comprises the largest group of states parties to the ATS, including those that are

claimant states, original parties and ATCPs. The Eastern European, Asia-Pacific,

and Latin American and Caribbean Groups have very similar levels of

engagement with the ATS, though the Asia-Pacific Group has lower numbers of

original parties and ATCPs and also has no claimant state within its group. The

most striking feature of Table 3 is the under-representation of the African Group

with South Africa its only member.

In this respect it can be observed that no ATCPs have had their status removed; as to the

requirements for ATCP status, see Serge Pannatier, ‘Acquisition of Consultative Status

under the Antarctic Treaty’ (1994) 30(173) Polar Record 123.

As to the current procedure for attaining ATCP status, see Secretariat of the Antarctic

Treaty, ‘Decisions’ in Secretariat of the Antarctic Treaty, Final Report of the Fortieth

Antarctic Treaty Consultative Meeting (2017) vol 1, 229–36.

Those states are Belarus (2006), Estonia (2001), Iceland (2015), Kazakhstan (2015),

Malaysia (2011), Monaco (2008), Mongolia (2015), Pakistan (2012), Portugal (2010) and

Slovenia (2019): see above Table 1.

For details, see ‘Regional Groups of Member States’, United Nations Department for General

Assembly and Conference Management (Web Page)

<https://www.un.org/dgacm/en/content/regional-groups>, archived at

<https://perma.cc/3S72-3BU8>.

For background, see Klaus J Dodds, ‘South Africa and the Antarctic, 1920–1960’ (1996)

32(180) Polar Record 25. The only other African states engaged in the ATS are Namibia

and Mauritius through their status as CCAMLR parties. Given the physical proximity of

parts of Southern Africa to Antarctica, the lack of engagement by African states with the

ATS is surprising.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 15

Table 3: Antarctic Treaty Parties as per United Nations Regional Groups of

Member States

UN Regional Group

Treaty Parties

Original/ATCP

Total

African Group

South Africa

1/1

Asia-Pacific Group

China, India, Japan, Kazakstan,

Korea (DPRK), Korea (ROK),

Malaysia, Mongolia, Pakistan, Papua

New Guinea

1/4

Eastern European

Group

Belarus, Bulgaria, Czech Republic,

Estonia, Hungary, Poland, Romania,

Russian Federation, Slovakia,

Slovenia, Ukraine

2/5

Latin American and

Caribbean Group

Argentina, Brazil, Chile, Colombia,

Cuba, Ecuador, Guatemala, Peru,

Uruguay, Venezuela

2/6

Western European

and Others Group

Australia, Austria, Belgium, Canada,

Denmark, Finland, France, Germany,

Greece, Iceland, Italy, Monaco,

Netherlands, New Zealand, Norway,

Portugal, Spain, Sweden,

Switzerland, Turkey, UK, US

7/13

Within this group of states, there are further categories which legally and

politically are significant for the future of the Antarctic Treaty. The first is the

seven claimant states. Each has their own interests in Antarctica which have

historical underpinnings that extend back in most cases for over 100 years. For

Argentina, Australia,

Chile and New Zealand, Antarctica is physically

proximate and generally impacts upon the consciousness of each state.

In the

case of France, Norway and the UK, though their Antarctic historical legacies are

foundational, they are all European states from another hemisphere. In addition,

Norway has territorial claims and significant scientific interests in the Arctic. For

the remaining five original Treaty parties the interests of each differ. Russia and

the US are both legitimate polar nations, and in recent years their engagement in

Arctic affairs has increased. Nevertheless, both retain significant Antarctic

interests through their physical presence on the continent, their research

On Australia’s engagement with Antarctica, see Marcus Haward and Tom Griffiths (eds),

Australia and the Antarctic Treaty System: 50 Years of Influence (UNSW Press, 2011).

In this respect, it needs to be borne in mind that while Antarctic sovereignty has been

neutralised under the terms of art IV of the Antarctic Treaty, the interests of the claimant

states remain. For a discussion of how Antarctic sovereignty is reflected in a form of

‘sovereignty watch’ amongst and between the territorial claimants, see Klaus J Dodds,

‘Sovereignty Watch: Claimant States, Resources, and Territory in Contemporary Antarctica’

(2011) 47(242) Polar Record 231.

16 Melbourne Journal of International Law [Vol 22

programs and engagement with the ATS.

Belgium, Japan

and South Africa

also have different Antarctic interests, which in the case of South Africa is also

reflected in their sub-Antarctic territories. All of the original Antarctic Treaty

parties, however, would appear to clearly retain a strong interest in maintaining

the Antarctic status quo as reflected in the foundational compact provided by the

Treaty.

Of the remaining 42 Antarctic Treaty parties, 17 of which are ATCPs, there

are also a variety of interests. Amongst the ATCP group there are some such as

Poland which have historic interests in Antarctica. Others have interests based on

geographic proximity, which in turn reflects a geopolitical interest in

Antarctica.

Asian states are of particular interest, with India, China and Korea

(ROK) all becoming ATCPs during the 1980s, with each having gained that

status shortly after acceding to the Treaty.

China’s interests in Antarctica, as

noted below, have particularly been the focus of attention, with a significant

growth in China’s physical presence through both personnel and research

stations.

For a review of US interests in Antarctica, see Christopher C Joyner, ‘United States Foreign

Policy Interests in the Antarctic’ (2011) 1(1) Polar Journal 17; Christopher C Joyner and

Ethel R Theis, Eagle over the Ice: The US in the Antarctic (University Press of New

England, 1997). For a review of Russian/Soviet interests, see Lukin (n 7); Ekaterina

Uryupova and Vasily Spiridonov, ‘Russia and the Environmental Protection of Antarctica:

The 25th Anniversary of the Madrid Protocol’ (2017) 53(271) Polar Record 376; Boleslaw

A Boczek, ‘The Soviet Union and the Antarctic Regime’ (1984) 78(4) American Journal of

International Law 834.

On Japan’s engagement with the Antarctic Treaty System, see Christopher C Joyner, ‘Japan

and the Antarctic Treaty System’ (1989) 16(1) Ecology Law Quarterly 155; Akiho Shibata,

‘Japan and 100 Years of Antarctic Legal Order: Any Lessons for the Arctic?’ (2015) 7

Yearbook of Polar Law 3.

For example, the US Department of State has the following statement on its website: ‘The

Office of Ocean and Polar Affairs develops and coordinates US policy affecting the

Antarctic region, working to ensure that the Antarctic continues to be reserved for peace and

science and to conserve marine life in the Southern Ocean’: ‘Key Topics: Office of Ocean

and Polar Affairs’, US Department of State (Web Page) <https://www.state.gov/key-topics-

office-of-ocean-and-polar-affairs/>, archived at <https://perma.cc/5EWY-LH66>. The

Australian Antarctic Division states as follows:

Australia has strong and longstanding interests in Antarctica which are protected by

the Antarctic Treaty system. The Antarctic Treaty system maintains Antarctica’s

freedom from strategic or political confrontation, protects its unique environment,

and safeguards our sovereignty over the Australian Antarctic Territory.

‘Australia and the Antarctic Treaty System’, Australian Antarctic Program (Web Page, 7

April 2016) <https://www.antarctica.gov.au/about-antarctica/law-and-treaty/australia-and-

antarctic-treaty-system/>, archived at <https://perma.cc/2CUF-HQSW>.

This encompasses the Latin American states of Brazil, Ecuador, Peru and Uruguay: see

generally Jack Child, ‘“Latin Lebensraum”: The Geopolitics of Ibero-American Antarctica’

(1990) 10(4) Applied Geography 287.

China acceded to the Antarctic Treaty in 1983 and became an ATCP in 1985, India acceded

in August 1983 and became an ATCP in September 1983, while Korea (ROK) acceded in

1986 and became an ATCP in 1989. For background on the interest of Asian states in

Antarctica, see RA Herr and BW Davis (eds), Asia in Antarctica (Centre for Resource and

Environmental Studies, 1994).

For some historical background on China’s then developing Antarctic Treaty interests and

presence, see Zou Keyuan, ‘China’s Antarctic Policy and the Antarctic Treaty System’

(1993) 24(3) Ocean Development and International Law 237. While for a more

contemporary assessment, see Brady, ‘China’s Rise in Antarctica?’ (n 8).

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 17

Of the remaining 25 acceding states parties, some have polar interests arising

from their engagement in the Arctic such as Canada and Iceland.

Others, such

as Malaysia, have had a longstanding interest in Antarctic affairs

but have only

in the past decade begun to actively engage with the ATS and Antarctic science.

Some states have become Antarctic Treaty parties but have since not actively

engaged in the ATS, as reflected in their failure to accede to the Madrid

Protocol, CCAS or CCAMLR. There may be a number of reasons for this,

including the costs associated with active engagement with the ATS, such as

attending the annual ATCMs.

While the level of ATS engagement amongst states may be variable, one state

whose level of Antarctic engagement and in the ATS more generally which has

attracted increasing attention has been China. After having acceded to the

Antarctic Treaty in 1983, China became an ATCP in 1985.

China has been able

to participate in all of the major legal and political debates concerning Antarctica

in recent decades, including the negotiation of CRAMRA, the Madrid Protocol

and the 2016 adoption by CCAMLR of the Ross Sea Marine Protected Area.

Consistent with China’s ATCP status, it has a significant Antarctic scientific

research presence which now encompasses four research stations, three airfields

and two field camps.

A fifth research station is under construction and

projected to be completed in 2022.

China is also engaged in the deployment of

new icebreakers and fixed wing aircraft to support its Antarctic research

programs,

which Nengye Liu and Cassandra M Brooks characterise as

allowing China to ‘better understand Antarctica and strengthen the Chinese

presence in the region, while supporting China’s ambition to become a

For a discussion of Iceland’s accession to the Antarctic Treaty, see Sune Tamm, Julia Jabour

and Rachael Lorna Johnstone, ‘Iceland’s Accession to the Antarctic Treaty’ (2017) 9

Yearbook of Polar Law 262.

See generally Rohan Tepper and Marcus Haward, ‘The Development of Malaysia’s Position

on Antarctica: 1982 to 2004’ (2005) 41(217) Polar Record 113.

Brady takes this critique further, noting that ‘[t]he high cost of research and base building is

a crucial important barrier to emerging and developing countries participating in the ATS’:

Anne-Marie Brady, ‘Opinion: Democratising Antarctic Governance’ (2012) 2(2) Polar

Journal 451, 453 (‘Democratising Antarctic Governance’).

For a review of China’s engagement in Antarctica, see Jonathan Harrington, ‘China in

Antarctica: A History’ (2015) 37 Southeast Review of Asian Studies 1; Keyuan (n 73).

See Nengye Liu and Cassandra M Brooks, ‘China’s Changing Position towards Marine

Protected Areas in the Southern Ocean: Implications for Future Antarctic Governance’

(2018) 94 Marine Policy 189.

For details on all Antarctic research bases, installations and facilities, see Council of

Managers of National Antarctic Programs, Antarctic Station Catalogue (2017)

<https://static1.squarespace.com/static/61073506e9b0073c7eaaf464/t/611497cc1ece1b43f0e

eca8a/1628739608968/COMNAP_Antarctic_Station_Catalogue.pdf >, archived at

<https://perma.cc/4YJT-FQLR>.

Craig Hooper, ‘New Polar Strategy Must Focus on China’s Long March to Antarctica’,

Forbes (online, 10 January 2021)

<https://www.forbes.com/sites/craighooper/2021/01/10/new-polar-strategy-must-focus-on-

chinas-long-march-to-antarctica/>, archived at <https://perma.cc/GM9E-PP8T>. See also

Indi Hodgson-Johnston, ‘Collaborating with China in Antarctica’, The Interpreter (Blog

Post, 19 February 2018) <https://www.lowyinstitute.org/the-interpreter/collaborating-with-

china-in-antarctica>, archived at <https://perma.cc/BK5U-BF8W>; Anne-Marie Brady,

China’s Expanding Antarctic Interests: Implications for Australia (Special Report, August

2017) <https://www.aspi.org.au/report/chinas-expanding-interests-antarctica>, archived at

<https://perma.cc/9Q2S-7QRW> (‘China’s Expanding Antarctic Interests’).

Liu and Brooks (n 78) 193.

18 Melbourne Journal of International Law [Vol 22

significant player in Antarctic governance’.

In that regard, China in 2017 for

the first time hosted an ATCM and associated CEP meetings in Beijing.

China’s significant Antarctic engagement, both at a physical level on the

continent and also within ATS fora, is generating considerable debate as to

China’s long-term intentions.

Antarctica is becoming part of China’s ‘national

narrative’,

in much the same way China is promoting its engagement in the

Arctic.

In Anne-Marie Brady’s view, the scale and extent of China’s Antarctic

activities, especially within the Australian claimed ‘Australian Antarctic

Territory’, where three research stations, three airfields and two field camps have

been established, suggests China is ‘building up a case for a territorial claim’.

While any potential Chinese territorial claim would be inconsistent with the

Antarctic Treaty, this does raise the issue as to whether the Treaty could be

amended to allow for the assertion of territorial claims or whether a party

dissatisfied with the constraints placed upon its activities by the Treaty could

withdraw. These matters are discussed below.

V REVIEW CONFERENCES AND TREATY WITHDRAWAL

At 60 years old, all of the indicators are that the Antarctic Treaty and the

larger ATS are suffering from a range of geopolitical tensions.

Some of the

core fundamentals upon which the treaty was negotiated are being tested by a

range of different state activities. China’s increasing presence within the

Australian claimed Australian Antarctic Territory, for example, has raised the

spectre of territorial tensions and a challenge to art IV of the Treaty. Likewise,

the capacity of the claimant states to make submissions to the Commission on

the Limits of the Continental Shelf with respect to their potential art 76

continental shelf claims under the LOSC highlighted a desire to bolster their

Ibid 193–4. See also Nengye Liu, ‘The Rise of China and the Antarctic Treaty System?’

(2019) 11(2) Australian Journal of Maritime and Ocean Affairs 120.

See Nengye Liu, ‘What are China’s Intentions in Antarctica?: Reviewing China’s Activities

and Commitments under the 60-Year-Old Antarctic Treaty’, The Diplomat (online, 14 June

2019) <https://thediplomat.com/2019/06/what-are-chinas-intentions-in-antarctica/>,

archived at <https://perma.cc/Q5KD-HRAG>; Bernard Lagan, ‘China’s March across

Antarctic Raises Fears of Expansionism’, The Times (online, 8 April 2019)

<https://www.thetimes.co.uk/article/china-s-march-across-antarctic-raises-fears-of-

expansionism-8zs86fst9>, archived at <https://perma.cc/47VS-5CRQ>.

Anne-Marie Brady, ‘The Past in the Present: Antarctica in China’s National Narrative’ in

Klaus Dodds, Alan D Hemmings and Peder Roberts (eds), Handbook on the Politics of

Antarctica (Edward Elgar Publishing, 2017) 284. For similar analysis, see Jonathan

Harrington, ‘China, Global Ecopolitics and Antarctic Governance: Converging Paths?’

(2017) 22(1) Journal of Chinese Political Science 37.

See Kong Soon Lim, ‘China’s Arctic Policy & the Polar Silk Road Vision’ in Lassi

Heininen and Heather Exner-Pirot (eds), Arctic Yearbook 2018 (Northern Research Forum,

2018) 420; Frédéric Lasserre, Linyan Huang and Olga V Alexeeva, ‘China’s Strategy in the

Arctic: Threatening or Opportunistic?’ (2015) 53(268) Polar Record 31.

Brady, China’s Expanding Antarctic Interests (n 80) 5. See also Anne-Marie Brady, China

as a Polar Great Power (Cambridge University Press, 2017).

Marcus Haward, ‘The Antarctic Treaty System: Challenges and Opportunities’ (2019) 27

Waikato Law Review 6, 6 (‘The Antarctic Treaty System’).

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 19

territorial claims.

Many of these tensions are being seen against the backdrop

of how some Treaty parties view the Madrid Protocol’s prohibition on minerals

activities and whether it remains appropriate to continue with that moratorium.

The Madrid Protocol, however, does not expire in 2048. Nevertheless, it may

become subject to a formal Review Conference as noted below.

A counterpoint to these apparent tensions is that the ATS has been able to

evolve over time and that as a result the modifications and supplementary

instruments that have been adopted have allowed the Antarctic Treaty and its

associated regime to retain their currency. This was particularly important during

the 1980s when the ATS faced the dual challenges of United Nations General

Assembly debates on the ‘Question of Antarctica’ and ATS debates on the

development of a minerals regime. The first debate was partly resolved by

effectively relaxing standards for attaining ATCP status and thereby opening up

the Treaty and ATS to many more states, while the second debate was resolved

through the abandonment of CRAMRA and adoption of the Madrid Protocol. The

timing of these developments is important, occurring as they did in and around

the time of the 30

anniversary of the adoption and entry into force of the Treaty

in 1991.

While these examples are helpful reminders of the capacity of the ATS to

respond to new challenges and of its resilience,

they do not address situations

where there are fundamental disagreements within the ATS over some of the

founding principles of the Antarctic Treaty and its associated instruments. To

date, the Treaty has not been subject to any amendment, which is exceptional for

any instrument that has been in force for 60 years. This is not a bar to

amendments being sought in the future, raising questions as to whether current

parties may seek an amendment or seek to withdraw if they are unable to gain

agreement on amendments. These matters are discussed below.

A Antarctic Treaty Review Conference

Of particular significance to these debates is art XII(2)(a) of the Antarctic

Treaty, which provides:

See Carlos R Hernández-Salas, ‘Distinguished Status Quo: The American Antarctic

Quadrant after Submissions to the Commission on the Limits of the Continental Shelf’

(2015) 30(2) International Journal of Marine and Coastal Law 285; Harald Brekke,

‘Defining and Recognizing the Outer Limits of the Continental Shelf in the Polar Regions’

in Richard C Powell and Klaus Dodds (eds), Polar Geopolitics?: Knowledges, Resources

and Legal Regimes (Edward Elgar, 2014) 38, 47–51; Alan D Hemmings and Tim Stephens,

‘The Extended Continental Shelves of Sub-Antarctic Islands: Implications for Antarctic

Governance’ (2010) 46(239) Polar Record 312. See generally Alex G Oude Elferink, ‘The

Outer Limits of the Continental Shelf in the Polar Regions’ in Erik J Molenaar, Alex G

Oude Elferink and Donald R Rothwell (eds), The Law of the Sea and the Polar Regions:

Interactions between Global and Regional Regimes (Martinus Nijhoff Publishers, 2013) 61,

69–71, 79–82.

See Alan D Hemmings, ‘The Antarctic Treaty System’ (2016) 14 New Zealand Yearbook of

International Law 287, 292, discussing Secretariat of the Antarctic Treaty, ‘Resolutions’ in

Secretariat of the Antarctic Treaty, Final Report of the Thirty-Ninth Antarctic Treaty

Consultative Meeting (2016) vol 1, 405–6, confirming the commitment of the ACTPs to the

prohibition on Antarctic mineral resource activities. See also Haward, ‘The Antarctic Treaty

System’ (n 87) 6–7.

See Haward (n 87) 8–14 for a discussion of the ATS response to some of these issues.

20 Melbourne Journal of International Law [Vol 22

If after the expiration of thirty years from the date of entry into force of the

present Treaty, any of the Contracting Parties whose representatives are entitled to

participate in the meetings provided for under Article IX so requests by a

communication addressed to the depositary Government, a Conference of all the

Contracting Parties shall be held as soon as practicable to review the operation of

the Treaty.

This provision became known as the ‘Review Conference’ mechanism,

which provided that modifications or amendments proposed at such a conference

adopted by a majority of those states in attendance would then be subject to the

adoption mechanisms as provided for under art XII(1).

Importantly, however,

art XII(2)(c) added that if the proposed modification or amendment had not

entered into force within a period of two years, then

any Contracting Party may at any time after the expiration of that period give

notice to the depositary Government of its withdrawal from the present Treaty;

and such withdrawal shall take effect two years after the receipt of the notice by

the depositary Government.

Prior to 1991 there was considerable debate as to whether an art XII(2)

Review Conference would be called and what consequences could arise from

such a conference, especially if disaffected states sought to eventually withdraw

from the Antarctic Treaty as per the mechanism outlined in art XII(2)(c).

However, a Review Conference was not called for in 1991 and no request has

subsequently been made. This raises the issue as to whether it would be possible

On treaty Review Conferences generally, see Burrus M Carnahan, ‘Treaty Review

Conferences’ (1987) 81(1) American Journal of International Law 226.

Antarctic Treaty (n 1) art XII(1) provides as follows:

The present Treaty may be modified or amended at any time by unanimous

agreement of the Contracting Parties whose representatives are entitled to participate

in the meetings provided for under Article IX. Any such modification or amendment

shall enter into force when the depositary Government has received notice from all

such Contracting Parties that they have ratified it.

Such modification or amendment shall thereafter enter into force as to any other

Contracting Party when notice of ratification by it has been received by the

depositary Government. Any such Contracting Party from which no notice of

ratification is received within a period of two years from the date of entry into force

of the modification or amendment in accordance with the provisions of subparagraph

1(a) of this Article shall be deemed to have withdrawn from the present Treaty on the

date of the expiration of such period.

Antarctic Treaty (n 1) art XII(1) also allows withdrawal, but this only applies to non-ATCPs

that have not endorsed a treaty modification or amendment adopted, endorsed and

unanimously ratified by the ATCPs, in which case a non-ATCP is deemed to have

withdrawn from the Treaty if they have not ratified the treaty action within a period of two

years.

Donald R Rothwell, The Polar Regions and the Development of International Law

(Cambridge University Press, 1996) 101–3; William M Welch, ‘The Antarctic Treaty

System: Is It Adequate to Regulate or Eliminate the Environmental Exploitation of the

Globe’s Last Wilderness?’ (1992) 14(3) Houston Journal of International Law 597, 633;

James Crawford and Donald R Rothwell, ‘Legal Issues Confronting Australia’s Antarctica’

(1992) 13 Australian Year Book of International Law 53, 67; Christopher D Beeby, ‘The

Antarctic Treaty System: Goals, Performance and Impact’ in Arnfinn Jørgensen-Dahl and

Willy Østreng (eds), The Antarctic Treaty System in World Politics (Macmillan, 1991) 4,

17–8; Auburn, Antarctic Law and Politics (n 12) 143–5; WM Bush, Antarctica and

International Law: A Collection of Inter-State and National Documents (Oceana

Publications, 1982) vol 1, 104–5.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 21

for an ATCP to make a request for a Review Conference to be called in 2021 or

at any time thereafter. In this respect the distinction between an art XII(1)

modification or amendment to the Treaty and an art XII(2) Review Conference

modification or amendment is important as only the latter process anticipates the

proposed modifications or amendments being the subject of debate at a

conference, which in turn can result in states withdrawing from the Treaty if

within a period of two years the modifications or amendments have not entered

into force. One mechanism therefore suggests minor modifications or

amendments, while the other anticipates much more substantial modifications or

amendments which are of such significance that some parties may elect to

completely withdraw from the Treaty. In this respect, the thinking of the parties

at the 1959 Washington conference on this issue is instructive. Chile, for

example, noted with respect to art XII that

[t]he Delegation of Chile lends its support to the article of the Antarctic Treaty

relative to revision on the understanding that if any Contracting Party withdraws

from the Treaty, its provisions will not be applicable to that Party from the time of

this withdrawal and that with respect to the provisions of article IV, the Parties

will return to the previous status quo.

As to the question as to whether it would be possible to call a Review

Conference well after the expiration of the 30-year period set down in art XII(2),

there would appear to be no impediment to the calling of such a conference.

Article XII(2) set down a minimum period of time before a conference could be

called and did not set down a maximum period of time within which a

conference could be called. In that regard, there is no time limit or constraints

beyond 1991 on the calling of a Review Conference. Finally, what can be

observed in this regard is that art XII anticipated a formal process whereby an

ATCP called for a Review Conference via a request to the Antarctic Treaty

depositary, which is the United States. While therefore 1991 did result in a series

of Special ATCMs dedicated to the negotiation of an instrument that eventually

became the Madrid Protocol, there is no suggestion that this was an art XII(2)

Review Conference nor did that Special ATCM result in a modification or

amendment to the Antarctic Treaty.

B Madrid Protocol Review Conference

The modification and amendment provisions of the Madrid Protocol are

closely linked to those in the Antarctic Treaty, and art 25(1) of the Protocol

refers back to the art XII(1) procedures that have been noted above. Provision is

also made for a Review Conference in art 25(2) of the Protocol as follows:

If, after the expiration of 50 years from the date of entry into force of this

Protocol, any of the Antarctic Treaty Consultative Parties so requests by a

‘Statements by State Representatives at the Final Plenary Session of the Conference on

Antarctica, 1 December 1959’ in Ben Saul and Tim Stephens (eds), Antarctica in

International Law (Hart Publishing, 2015) 43, 46–7.

Madrid Protocol (n 5) art 4(1) provides: ‘This Protocol shall supplement the Antarctic

Treaty and shall neither modify nor amend that Treaty’. See also Secretariat of the Antarctic

Treaty, ‘Final Act of the Eleventh Antarctic Treaty Special Consultative Meeting’ in

Secretariat of the Antarctic Treaty, Compilation of Key Documents of the Antarctic Treaty

System (4

ed, 2019) 31.

22 Melbourne Journal of International Law [Vol 22

communication addressed to the Depositary, a conference shall be held as soon as

practicable to review the operation of this Protocol.

A Review Conference mechanism is therefore provided for that would

become operative in 2048. The Review Conference procedures anticipate two

sets of processes. The first would apply with respect to all modifications or

amendments to the Madrid Protocol other than to the art 7 prohibition on

Antarctic mineral resource activities. These procedures, outlined in arts 25(3)–

(4), require adoption of the proposed changes by a majority of the states

attending the conference, including 75 per cent of those states that were ATCPs

at the time of the adoption of the Protocol.

The changes would then only enter

into force following ratification or an equivalent procedure of acceptance by 75

per cent of the then existing ATCPs, including all of the ATCPs at the time of

the adoption of the Protocol. The effect of this procedure is that, while a

proposed change to the Protocol could be endorsed at a Review Conference

without the support of one of the ATCPs that existed at the time of the 1991

negotiations, the support of that ATCP would be required for the eventual entry

into force of the proposed change such that one ATCP would effectively retain a

veto.

The additional mechanism that applies to a proposed adjustment or

modification to art 7 of the Madrid Protocol is found in art 25(5), which requires

the Review Conference to have also adopted a ‘binding legal regime on Antarctic

mineral resource activities that includes an agreed means for determining

whether, and, if so, under which conditions, any such activities would be

acceptable’. In a reference back to the Antarctic Treaty art XII(2) procedures

allowing for a state to potentially withdraw from the Treaty, a similar procedure

is established under art 25(5)(b) whereby if a modification to art 7 has not

entered into force within three years of its adoption then any Party could seek to

withdraw from the Protocol. Such a withdrawal would take effect 2 years after a

notification has been given to the depositary.

C Treaty Law and Treaty Withdrawal

An interesting treaty law issue with respect to both the Antarctic Treaty and

the Madrid Protocol is that neither instrument contemplates the withdrawal of a

party other than by the mechanisms respectively provided for under art XII of the

Treaty and art 25 of the Protocol. This raises the question as to whether it is

possible for a party to unilaterally withdraw from either instrument other than via

those mechanisms. While this is not an issue that has arisen to date, it may well

do so in the future if a party became sufficiently dissatisfied with the ATS and in

particular some of the constraints that they feel are placed upon them, such as art

IV of the Treaty and art 7 of the Protocol.

At the time of the adoption of the Madrid Protocol, there were a total of 26 ATCPs: see

above Table 2.

For an analysis of some of these issues, see AJ (Tony) Press, ‘The Antarctic Treaty System:

Future Mining Faces Many Mathematical Challenges’ (2015) 7 Yearbook of Polar Law 623.

The depositary for both the Antarctic Treaty and the Madrid Protocol is the US: Antarctic

Treaty (n 1) art XIII(3); Madrid Protocol (n 5) art 27(1).

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 23

The general rules of treaty law are found in the Vienna Convention on the

Law of Treaties (‘VCLT’)

100

and there are two generally applicable rules

regarding withdrawal.

101

The first, found in art 54, allows for a party to withdraw

from a treaty in conformity with the terms of the treaty or with the consent of all

the parties. A party that therefore sought to withdraw from either the Treaty or

the Protocol, other than by the art XII and art 25 mechanisms, could do so with

the consent of the other parties.

102

This would raise immediate challenges for any

state seeking to utilise this mechanism given the number of states parties to both

instruments and the difficulty they would face in getting the consent from all of

those parties, especially if there were concerns as to the motivations of that party

in seeking to withdraw. In this respect, it is notable that the wording of VCLT art

54 is ‘consent of all the parties’ which in the case of the Antarctic Treaty and

Madrid Protocol would leave no room for argument as to a distinction between

the 29 ATCPs and the other 25 Antarctic Treaty parties.

103

In the absence of the art 54 procedure, VCLT art 56 provides an alternate

mechanism by which a party may seek to withdraw from a treaty. Under this

procedure, where a treaty does not otherwise provide for denunciation or

withdrawal, a party may denounce or withdraw from a treaty if it can be

established that the parties contemplated such a possibility or such a right is

implied by the nature of the treaty.

104

A party utilising this procedure is to give

not less than 12 months’ notice of an intention to denounce or withdraw from the

treaty.

105

In the view of Anthony Aust, as art 56 is expressed as an exception,

‘the onus of establishing that the exception applies lies with the party wishing to

withdraw’.

106

A party seeking to utilise this mechanism to withdraw from either

the Antarctic Treaty or the Madrid Protocol would be able to assert that while

there is no general provision for denunciation or withdrawal, it is clear on the

basis of the procedures outlined in art XII and art 25 respectively that both

treaties do admit the possibility of withdrawal, albeit in very specific

circumstances and that accordingly a general right of denunciation or withdrawal

does operate consistently with the VCLT art 56 rule. An issue that may arise with

the Antarctic Treaty is that, given the Treaty concerns questions of sovereignty

and seeks to establish a permanent regime, it may be argued that it cannot be

subject to state withdrawal,

107

however this argument would be countered by the

fact that art XII expressly contemplates withdrawal in certain circumstances.

108

100

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS

331 (entered into force 27 January 1980) (‘VCLT’).

101

Cf ibid arts 57–62, 64, the applicable rules relating to termination or suspension of a treaty.

102

For a discussion of this procedure, see Anthony Aust, Modern Treaty Law and Practice

(Cambridge University Press, 3

ed, 2013) 254–5.

103

As to the interpretation of ‘consent of all the parties’, see Ian Sinclair, The Vienna

Convention on the Law of Treaties (Manchester University Press, 2

ed, 1984) 183.

104

VCLT (n 100) art 56(1).

105

Ibid art 56(2).

106

Aust (n 102) 256.

107

Ibid. Aust includes peace treaties, disarmament treaties and ‘those establishing permanent

regimes’ as falling into this category.

108

For a discussion of art 56 of the VCLT, see Sinclair (n 103) 186–8.

24 Melbourne Journal of International Law [Vol 22

VI CONCLUDING REMARKS

The 43

ATCM held in Paris (virtually) from 14–24 June 2021 issued a

declaration on the 60

anniversary of the entry into force of the Antarctic Treaty

in which the participants sought to ‘[r]eaffirm their strong and unwavering

commitment to the objectives of the Antarctic Treaty, its Environmental Protocol

and other instruments of the Antarctic Treaty system’.

109

Notwithstanding this

ATCP solidarity, it is currently fashionable to critique the ATS and speculate

whether it will survive due to a combination of geopolitics and resource tensions

and whether it remains ‘fit for purpose’ at a time that is much changed from that

which existed when the regime was originally negotiated.

110

Nevertheless,

writing in 2012, Brady commented that ‘[t]he Treaty does not suit the current

international situation, yet despite this, it appears to be here to stay’.

111

Brady

went on to concede that

for all its failings, no other instrument of governance is available to deal with all

the issues involved in governing the Antarctic continent and Southern Ocean. So

far, the rise of new actors with interests in Antarctica has not upset the current

system as they are still working with it as it stands. Antarctic governance clearly

needs to democratise and efforts to achieve this have so far been too little, and too

late.

112

Much of this debate has been sparked by the global rise of China in tandem

with China’s increased engagement with Antarctica and the ATS. It has also

been fuelled by suspicions about China’s Antarctic ambitions, which to date have

not been clearly articulated. In that regard, China’s position with respect to

Southern Ocean marine protected areas proposed and eventually endorsed under

the CCAMLR framework has only deepened those concerns.

113

China’s

commitment to the ATS has, however, been recently demonstrated through its

hosting of the 2017 ATCM in Beijing and its ongoing high level scientific

research program which now matches that of the original Antarctic states.

114

Whether China would seek to leave the ATS in the foreseeable future can only

be speculated about.

115

In this respect it needs to be acknowledged that China is

currently able to assert a much greater role in Antarctic governance through its

109

‘43rd ATCM: Adoption of a Declaration on the Occasion of the 60th Anniversary of the

Entry into Force of the Antarctica Treaty and the 30th Anniversary of the Signing of the

Madrid Protocol on Environmental Protection to the Antarctic Treaty (Paris, 14–24 June

2021)’, France Diplomacy (Web Page) [7] <https://www.diplomatie.gouv.fr/en/country-

files/antarctica/news/article/43rd-atcm-adoption-of-a-declaration-on-the-occasion-of-the-

60%E1%B5%97%CA%B0-anniversary>, archived at <https://perma.cc/PDB9-NN6C>.

110

See, eg, Liggett et al (n 6); Jacob A Reed, ‘Cold War Treaties in a New World: The

Inevitable End of the Outer Space and Antarctic Treaty Systems’ (2017) 42(4–5) Air and

Space Law 463.

111

Brady, ‘Democratising Antarctic Governance’ (n 76) 455.

112

Ibid 460.

113

Liu and Brooks (n 78).

114

In December 2020, China also cooperated with the United States to assist in the medical

repatriation of an Australian scientist: Rachel Treisman, ‘US, China and Australia Evacuate

Expeditioner from Antarctica in 5-Day Mission’, NPR (online, 25 December 2020)

<https://www.npr.org/2020/12/25/950320579/u-s-china-and-australia-evacuate-

expeditioner-from-antarctica-in-5-day-mission>, archived at <https://perma.cc/HHV6-

GAU8>.

115

Liu and Brooks (n 78) 194, where they claim ‘[i]t is highly unlikely that China will leave the

ATS in the foreseeable future’.

2021] The Antarctic Treaty at Sixty Years: Past, Present and Future 25

status as an ATCP than it does in the Arctic where it is an observer on the Arctic

Council.

116

Nevertheless, debate continues as to whether China,

117

or any other

party, may seek to initiate a Madrid Protocol Review Conference in 2048.

118

Even if a Review Conference was called, overturning the mining prohibition

would be legally very difficult given the mechanisms set down in art 25 of the

Madrid Protocol.

While 2048, like 1991 before it, may prove to be an important ‘milestone’ for

the ATS,

119

the history of the regime shows that it has faced a number of

challenges and those challenges have been actively addressed. The result is that

the ATS has been able to demonstrate great resilience over the past 60 years.

This resilience should not be underestimated, and, while the ATS still only has a

membership of approximately one quarter of UN member states, it does include

all of the Permanent Five members of the UN Security Council, in addition to all

the members of the G7 and all but three members of the G20.

120

Nevertheless,

while the ATS has enjoyed enormous success, the global international order is

currently experiencing a backlash against some aspects of international law and

institutions which is partly driven by a concern from some states that certain

global institutions and mechanisms are no longer appropriate and are in need of

reform, modification or even alternate frameworks.

121

In some instances, this has

resulted in states abandoning long established international legal frameworks and

institutions to pursue unilateral goals or to support new regimes. It would

therefore be inappropriate to become complacent about the ATS and the

challenges that it faces. While there has been considerable attention in the past to

the prospect of an Antarctic Treaty Review Conference, and increasingly a

Madrid Protocol Review Conference, states have other available mechanisms

they could rely upon to withdraw from either treaty. In addition, despite the

passage of time, an Antarctic Treaty Review Conference could also be called by

a dissatisfied state or states. While the ATS currently presents itself as a stable

legal regime, the reality is that both the Antarctic Treaty and Madrid Protocol

are subject to treaty law mechanisms allowing for review of their cornerstone

provisions. The international law and global governance issues that could arise

from such events should not be underestimated.

116

Sara Reardon, ‘China Gains Observer Status on the Arctic Council’, New Scientist (online,

16 May 2013) <https://www.newscientist.com/article/dn23553-china-gains-observer-status-

on-the-arctic-council/>, archived at <https://perma.cc/PG28-WWRK>; Matthew Willis and

Duncan Depledge, ‘How We Learned to Stop Worrying about China’s Arctic Ambitions:

Understanding China’s Admission to the Arctic Council, 2004–2013’ in Leif Christian

Jensen and Geir Hønneland (eds), Handbook of the Politics of the Arctic (Edward Elgar

Publishing, 2015) 388.

117

Liu (n 82) 128.

118

Liggett et al (n 6) 463.

119

Ibid.

120

Those members of the G20 who are not parties to the ATS are Indonesia, Mexico and Saudi

Arabia.

121

Peter G Danchin et al, ‘Navigating the Backlash against Global Law and Institutions’ (2020)

38 Australian Year Book of International Law 33. See also Janne E Nijman and Wouter G

Werner, ‘Populism and International Law: What Backlash and Which Rubicon?’ (2018) 49

Netherlands Yearbook of International Law 3; Eric A Posner, ‘Liberal Internationalism and

the Populist Backlash’ (2017) 49 (Special Issue) Arizona State Law Journal 795.