Relationship between UNCLOS and the Antarctic Treaty System *

Por Alexei Zinchenko**

Significance of UNCLOS to International Cooperation in the Southern Ocean

The Southern Ocean is viewed as being the southern continuation of the Atlantic, Indian and Pacific Oceans. Its northern boundary is considered to be the Antarctic Convergence, which generally lies between 45 and 60 degrees south latitude. The Antarctic Convergence is a relatively narrow circumpolar zone where cold and low-saline surface water moving north from the coast of Antarctica is pushed beneath warmer, high-saline northern water moving south.

One of the main objectives of the 1982 Convention is to establish a comprehensive legal order for the world's seas and oceans. It is a global convention applicable to all ocean space. The Convention therefore applies, in general, to the Southern Ocean as well.

The Convention, however, is not the only international agreement relevant to that ocean. The examination of the significance of the Convention to the Southern Ocean thus necessarily involves the issue of the relationship of the Convention to the other international agreements applicable to that area. On the general issue of the relationship of the Convention with other agreements the Convention states, inter alia, that it "shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention" (art. 311(2)).

Of particular importance in this respect is the Antarctic Treaty. The Antarctic Treaty sets forth principles and rules to be applied not only to the Antarctic continent, but also to the maritime space of the Antarctic. The Treaty is aimed at furthering the purposes and principles embodied in the Charter of the United Nations by ensuring the use of Antarctica for peaceful purposes only and the continuance of international harmony in Antarctica. It is open for accession by any Member of the United Nations or by any other State that may be invited to accede to it. A network of legal instruments, including the Antarctic Treaty itself and a body of agreements, agreed recommendations, agreed measures and additional instruments have been adopted pursuant to the Antarctic Treaty - all of which constitute the Antarctic Treaty system. For the purposes of the Antarctic Treaty, Antarctica is defined as an area south of 60-degree south latitude, which embraces a considerable extent of maritime space.

The significance of the Convention to international cooperation in the Southern Ocean should be stressed particularly in the context of its objective of peaceful uses of the seas, its promotion of marine scientific research, its framework for the protection and preservation of the marine environment, and its regime on the conservation and management of marine living resources.

The maritime space is broadly divided into three zones under the Convention: areas under national sovereignty or jurisdiction of the coastal State; the high seas beyond those areas; and the international seabed area, which is the deep seabed area beyond the limits of national sovereignty or jurisdiction (hereafter referred to as the Area).

First, the question whether the regime embodied in the Convention relating to maritime areas falling under national sovereignty or jurisdiction applies to Antarctica is linked to the legal status of the landmasses in Antarctica. Within the Southern Ocean there are islands that are subject to the undisputed sovereignty of various States. The regime of the Convention applies to such islands. Legislative acts concerning the territorial seas and the continental shelves around these islands have been enacted by the States concerned, and in certain instances the exclusive economic or fishery zones of up to 200 nautical miles have been established.

With respect to Antarctica, seven States Parties to the Antarctic Treaty have claimed territorial sovereignty over parts of the continent and some of these claims overlap. Two States, while not recognizing any territorial claims in Antarctica, maintain a basis of claims in respect of Antarctic territories. Other States within the system have not made any claims nor do they recognize claims to sovereignty. A part of the Antarctic continent remains free from claims of national sovereignty.

The Antarctic Treaty has devised a mechanism for dealing with these conflicting positions. This is embodied in article IV, which states:

"1. Nothing contained in the present Treaty shall be interpreted as:

"(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;
"(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;
"(c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's right of or claim or basis of claim to territorial sovereignty in Antarctica.

"2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force."

From the perspective of the Parties to the Antarctic Treaty, the extent to which the various types of maritime jurisdiction can be exercised by claimant States in Antarctica depends on how article IV of the Antarctic Treaty is interpreted. The Antarctic Treaty Consultative Parties themselves are not in agreement on this question. States which have claimed territorial sovereignty in Antarctica have not renounced their rights. They assert claims to maritime jurisdiction over adjacent waters on the basis that title to territory automatically involves jurisdiction over appurtenant waters and continental shelves. Such rights, in their view, are merely an attribute of their sovereignty. On the other hand, non-claimant States do not recognize any claims to territorial sovereignty in the Antarctic area. A number of these States also argue that certain assertions of sovereign rights over resources constitute a new claim or the extension of an existing claim to territorial sovereignty and therefore prohibited by article IV (2) of the Antarctic Treaty. The non-recognition of territorial sovereignty in Antarctica by some of the States Parties to the Treaty is shared by a number of States not parties to the Antarctic Treaty.

In the light of such differences in national positions, no clear conclusions may be drawn as to the extent to which the provisions of the Convention relating to national sovereignty and jurisdiction apply to the area of application of the Antarctic Treaty, and hence their significance thereto.

Second, the provisions of the Convention relating to the high seas apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or internal waters of a State, or in the archipelagic waters of an archipelagic State. In the high seas all States enjoy, inter alia, the freedom of navigation and overflight, freedom to lay submarine cables and pipelines and to construct artificial islands and other installations, as well as the freedom of fishing and scientific research. The general rules relating to the high seas apply to the high seas areas in the Southern Ocean.

Thirdly, the international regime under the Convention, as modified by the 1994 Agreement for the implementation of Part XI thereof, sets forth principles and rules governing the exploration and exploitation of the resources of the Area. It has established an International Seabed Authority to manage such activities. No State may claim or exercise sovereign rights over any part of the Area or its mineral resources or appropriate any part thereof. Activities in the Area shall be controlled by the Authority acting on behalf of mankind as a whole and for its benefit.

Since neither the parallel 60-degree south nor the Antarctic Convergence are limits of national jurisdiction, the Area would extend beyond those lines into the Southern Ocean. This has been clearly confirmed by the Antarctic Treaty Parties. Under the Convention on the Regulation of Antarctic Mineral Resource Activities, adopted at the Fourth Special Antarctic Treaty Consultative Meeting in 1988, which would regulate mineral resource activities on the continent of Antarctica and all Antarctic islands and in the seabed and subsoil of adjacent offshore areas up to the deep seabed, the term "deep seabed" is defined as the seabed and subsoil beyond the geographic extent of the continental shelf as the term continental shelf is defined in accordance with international law. The Consultative Meeting agreed that the geographic extent of the continental shelf as referred to in that convention would be determined by reference to all the criteria and rules embodied in paragraphs 1 to 7 of article 76 of the United Nations Convention on the Law of the Sea.

In summary, the determination of the precise limits of various zones in the Southern Ocean and the extent of the applicability of the relevant provisions of the Convention on the Law of the Sea present complex problems.

The interrelationship between the regime for oceans, its resources and continental shelf, established by the Convention and the Antarctic regime established by the respective instruments acquires extreme importance in view of the announced intention of at least one State to include portions of the continental shelf off Antarctica in its future submission to the Commission.

On 2 December 1999 the Minister for the Environment and Heritage, Senator Hill, and the Minister for Foreign Affairs, Mr. Downer, announced that the Australian Government will take action to define the limits of the continental shelf off the Australian Antarctic Territory (AAT). To implement this decision the Australian Government will provide approximately $30 million over 5 years for the survey work required to establish the baselines, determine the foot of the continental slope, and delineate the outer limit of the shelf.

According to the press release and the fact sheet posted at the Australian Antarctic Division WEB-site, the reasoning behind this is as follows:

Article 77 of UNCLOS provides coastal States with exclusive rights to the natural resources (i.e.: the mineral and sedentary living resources) on the continental shelf (but not the water column above). These rights include the right to withhold consent from other States wishing to exploit those resources. The purpose of the Government's decision is to enable Australia, in accordance with UNCLOS, to define the outer limit of the area in which those rights may be exercised.

Australia will give effect to its obligations under the Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol) and not exercise mining rights in the Antarctic Treaty area. The Government has not, however, decided how its rights under UNCLOS will be exercised. It has decided at this time only to define the area where the rights could be exercised, including the right to deny access to seabed resources, should it at some future date choose to do so. These are matters for future generations of Australians to determine and the Government's decision is designed to keep open Australia's rights and options. These rights and options would be lost if the opportunity to determine the limits of the continental shelf is not taken now.

Article IV of the Antarctic Treaty provides that no new claim, or enlargement of an existing claim to territorial sovereignty in Antarctica shall be asserted while the Treaty is in force. This is not a new claim. Australia has had a long standing historical claim to territory in Antarctica since 1936. Australia first proclaimed a continental shelf off the AAT in 1953, well before the Antarctic Treaty was negotiated and entered into force. Accordingly, this decision is consistent with the position held at that time and subsequently. This is, however, the first time that Australia has taken action to define the outer limit of the continental shelf adjacent to the AAT and, with entry into force of UNCLOS, there is a prescribed procedure and a deadline for taking such action. Australia intends to define those limits strictly in accordance with the provisions of UNCLOS.

This is not an enlargement of an existing claim, but is the exercise of rights under international law, as reflected in UNCLOS, flowing to Australia as a consequence of Australia's existing sovereignty over the AAT.

Australia has consistently acted to support its position as a State which has territory in Antarctica. Australia's policy position to maintain its sovereignty has not changed, nor has Australia acted other than in accordance with prevailing international law. Australia has previously asserted maritime zones in the Antarctic (a territorial sea, exclusive economic zone and continental shelf) on the basis of the pre-existing terrestrial claim and progressively as allowed by the subsequent development of international law. This decision is a logical continuation of that practice and takes full account of Australia's obligations under the Antarctic Treaty.

Why has Australia taken the decision now and not other claimants? Article 4 of Annex II of UNCLOS provides that where a State intends to establish the outer limits of the continental shelf in accordance with Article 76 of the Convention, it must submit particulars of such limits to the Commission on the Limits of the Continental Shelf within 10 years of the entry into force of the Convention for that State. In Australia's case, that deadline is in November 2004. Australia will be the first of the Antarctic claimant States to face the 10 year deadline specified in the Convention for preparing its submission to the Commission. The deadlines for other Antarctic claimants fall in 2005 (Argentina), 2006 (France, Norway and New Zealand), and 2007 (United Kingdom and Chile). Therefore, this is not as pressing an issue for the other possible claimants in the area.

The steps undertaken by the Australian Government are of great importance since they once again, as I have already mentioned before, raise the issue of coherence of the two regimes - that of the Convention and that of the Antarctic Treaty.

It is not in my intention to suggest or discuss how these two regimes could be reconciled. Attempts to do that during the Conference were made but proved to be unsuccessful.

The question arises as to if and how might the Commission take up consideration of the submission if it includes the areas of the continental shelf off the coast of Antarctica.

Although no one can say with certainty until the Commission discusses this matter, I would like to draw your attention to the following very important provisions which the Commission incorporated into its Rules of Procedure after consulting with the Meeting of States Parties to UNCLOS. I refer to Annex I to the Rules entitled "Submissions in case of a Dispute between States with Opposite or Adjacent Coasts or in other Cases of Unresolved Land or Maritime Disputes".

In this Annex the Commission recognized that the competence with respect to matters regarding disputes which may arise in connection with the establishment of the outer limits of the continental shelf rests with States. In case there is a dispute in the delimitation of the continental shelf between opposite or adjacent States, or in other cases of unresolved land or maritime disputes, in relation to the submission, the Commission shall be: (a) informed of such disputes by the coastal States making the submission; and (b) ensured by it to the extent possible that the submission will not prejudice matters relating to the delimitation of boundaries between States.

Rule 3 of the Annex I of the Rules of Procedure of the Commission states that a submission may be made by a coastal State for a portion of its continental shelf in order not to prejudice questions relating to the delimitation of boundaries between States in any other portion or portions of the continental shelf for which a submission may be made later, notwithstanding the provisions regarding the ten-year period established by article 4 of Annex II to the Convention.

Joint or separate submissions to the Commission may be made by two or more States by agreement: (a) without regard to the delimitation of boundaries between those States; or (b) having indicated by means of geodetic coordinates the extent to which a submission is without prejudice to the matters relating to delimitation of boundaries with another or other States Parties to this Agreement.

Rule 5 is very clear: In cases where a land or maritime dispute exists, the Commission shall not examine and qualify a submission made by any of the States concerned in the dispute. However, the Commission may examine one or more submissions in the areas under dispute with prior consent given by all States that are parties to such a dispute.

In concluding this part of the presentation, I would like to emphasize that Annex I of the Rules of Procedure refers not only to disputes in the delimitation of the continental shelf between opposite or adjacent coasts, but also to "other cases of unresolved land or maritime disputes". It is logical to assume that if any particular State has such a dispute in the region of Antarctica, the Commission should be informed of it by the coastal State making the submission.

Acknowledgement and disclaimer: The views expressed in this statement are those of the author and do not necessarily reflect the views of the United Nations or the Commission on the Limits of the Continental Shelf.
The presenter would also like to note that the research conducted for the purposes of this presentation was based primarily on UN documents, reports, studies, information notes, speeches and other sources drafted by staff members, past and present, of the United Nations Office for Ocean Affairs and the Law of the Sea, now known as the Division for Ocean Affairs and the Law of the Sea of the United Nations Office of Legal Affairs. Among them special acknowledgement must go to Ambassador Satya N. Nandan, formerly UN Under-Secretary General in charge of the Office for Ocean Affairs and the Law of the Sea, currently Secretary-General of the International Seabed Authority.

Nota Bene: El copyright de este artículo pertenece al autor.

* El artículo es parte de la presentación titulada "The Global Vision of the Law of the Sea System, and its Relation with the Commission on the Limits of the Continental Shelf", hecha en el Seminario "Plataforma Continental" realizado en Buenos Aires del 13 al 17 de noviembre de 2000.
** El autor es el Secretario de la Comisión de Límites de la Plataforma Continental de la División para Asuntos Oceánicos y Derecho del Mar de la Oficina de Asuntos Legales de Naciones Unidas.

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