28 Second-Year Seminar Spring 2009, Section 12 Final Draft, April 26, 2009 Settling the Sovereignty Question: Amending the Antarctic Treaty to Allow Local Control of Fisheries I. Introduction The continent of Antarctica is considered the last great wilderness on Earth,i and the Antarctic Treaty framework has been specifically created with the goal of protecting the fragile Antarctic environment.ii Increased pressure on the world’s fisheries and a growing interest in Antarctic krill,iii however, may have a radical impact on krill fisheries and the entire Antarctic ecosystem. Krill are one of the most important species in the Southern Ocean and comprise the very foundation of the Southern Ocean’s food chain.iv Krill are considered a key species of the Antarctic ecosystem, and as a dominant herbivore, krill channel the organic matter produced by phytoplankton to a wide variety of key species in Antarctica, from Baleen whales, to seals, penguins, sea birds, cephalopods and fish.v If krill fisheries are depleted even at relatively minor levels, this depletion could have a significant impact on both dependent species and the Antarctic ecosystem as a whole.vi Currently, a complex web of treaties govern Antarctica and the seas surrounding it, but the freezing of territorial claims in 1959 through the Antarctic Treatyvii tied the hands of local governments and rendered any claims to sovereignty moot.viii Freezing of territorial claims means that the waters

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28 surrounding Antarctica do not come under the protection of any particular State, and even though several international agreements attempt to protect krill under various management schemes, none of these agreements has a reliable enforcement mechanism to monitor the management of Antarctic krill.ix The waters surrounding Antarctica are thus given the status of global commons or high seas, and are ruled primarily under the framework outlined under the United Nations Law of the Sea Convention’s (the Convention) high seas fisheries regime.x Under the Convention, the high seasxi receive some protection, but still fall into the status of the global commons. xii Often, with public resources such as the global commons, a phenomenon called the “tragedy of the commons”xiii occurs where nations and individuals scramble to take as much as possible from the commons before someone else gets there first: There appears, then, to be some truth in the conservative dictum that everybody’s property is nobody’s property. Wealth that is free for all is valued by no one because he who is foolhardy enough to wait for its proper time of use will only find that it has been taken by another. . .The fish in the sea are valueless to the fisherman, because there is no assurance that they will be there for him tomorrow if they are left behind today.xiv Thus, many countries may see krill as a valuable but limited resource that needs to be taken before someone else gets to it first.xv Krill and the fisheries dependent upon krill may become another “tragedy of the commons” as no clear sovereign or international treaty provides protection, and the world community cannot solely rely upon global cooperation and equity to preserve this valuable resource. xvi By amending the Antarctic Treaty to allow Consultative Partiesxvii

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28 the right to assert limited sovereignty over the waters surrounding Antarctica, Antarctic krill fisheries would be preserved and protected through domestic statutes and control. This paper examines the current treaty regimes that impact Antarctic krill with the goal of identifying the weaknesses in the agreements and finding a lasting solution to protect Antarctic krill.xviii Sections I & II provide an overview of the natural history of Antarctica.xix Section III provides and overview of international law and examines in depth the applicable treaties that have an impact on the regulation of krill fisheries and identifies the weaknesses in their enforcement regimes.xx Sections IV & V posit solutions for long-term success in preserving the Antarctic marine ecosystem.xxi

II. Antarctica Has Protected Herself With Wildness Antarctica has been described the “coldest, driest, windiest, highest, most isolated, worst known, and generally most unpleasant of all seven continents.”xxii The Antarctic land mass covers approximately 5.5 million square miles, and some estimate that Antarctica contains almost nine-tenths of the ice remaining on the planet.xxiii In the winter months, the merging of the continent’s ice masses results in a near doubling of the size of the continent, and darkness prevails, with the wind blowing ceaselessly with gusts as high as 120 miles-per-hour (mph).xxiv Until recently, the continent’s harsh environment has thwarted efforts to exploit minerals or oil and gas, and Antarctica has largely remained a windswept, dark, dry place.xxv

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28 A. The Southern Ocean Teems with Krill Despite the apparent desolation of Antarctica, the Southern Ocean surrounding Antarctica teems with krill. Euphausia superba (Antarctic krill) xxvi is a type of shrimp that lives in the Southern Ocean in a wide circumpolar belt between the Antarctic continent and the Antarctic Convergence (or Polar Front), which is formed where cold Antarctic waters meet warmer waters to the North. The Antarctic Convergence acts as a biological barrier, making the Southern Ocean a closed ecosystem for krill.xxvii Antarctic krill provide the critical link between plankton and the remainder of the Southern Ocean’s food chain, and even a small change in overall krill populations could have a devastating impact on the ecosystem of the Southern Ocean.xxviii The overall density of krill varies considerably in space and time throughout its distributional range, with groups ranging from a few square meters to more than 100 kilometers (km) and with densities ranging from 0.5 to several kilograms per cubic meter.xxix These groups may persist for a few hours or days or last for weeks, and are found in association with islands, continental slopes or shelves, or zones of water mixing. xxx Scientists have proposed the existence of more or less independent populations of krill around the Antarctic continent,xxxi although catch data indicates that krill fishermen have been catching krill in several key areas, and most commercial krill fishing is currently carried out by Japan, Ukraine and Poland in a small sector of the Southern Ocean.xxxii

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28 B. Overfishing, Pollution, and Scientific Uncertainty Threatens Krill Considerable uncertainty exists regarding krill harvesting’s impact on local predator colonies, as well on the overall krill population.xxxiii Antarctic krill fishing has taken place since the 1970s, with the highest krill harvest for that period exceeding 500,000 tons per season.xxxiv Krill harvesting has since dropped down to a projected catch of 165,000 tons in 2003/2004 and 226,000 tons in 2004/2005, although those projected catch limits have since been reduced to 116,000 tons.xxxv These projected catch limits may seem mild considering the current catch limit of more than 4 million tons per season.xxxvi Precautionary catch limits for species such as krill, however, are calculated using statistical models that attempt to take into account the uncertainty of the krill population and the various unknowns regarding the impact of fishing on krill, in addition to a score of other external environmental factors.xxxvii So even though these models use a precautionary approach, scientists question their accuracy and reliability.xxxviii Uncertainty also exists as to the impact of development in Antarctica, and unfortunately some environmental damage in Antarctica has already occurred.xxxix The Argentine ship the Bahia Paraiso collided with underwater rocks and sank, spilling some 150,000 gallons of oil into the sea.xl The spill covered fifteen square miles of once pristine waters, and the wreck continues to slowly leak oil.xli The spill killed thousands of penguin chicks, and observers suspect the spill destroyed an entire colony of nearby birds as well.xlii Also, even though this particular spill’s impact on local krill was not recorded, scientists believe that the

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28 cold waters surrounding Antarctica would probably impede the break-up of oil.xliii This means that an accident such as the Bahia Paraiso would likely have a deleterious impact upon krill populations which are found close to shore and around the continental shelf where such accidents are more likely to occur.xliv In addition, some scientists believe that the damage to krill and other wildlife could be long-lasting,xlv and this possibility underscores the need to have efficient and binding enforcement in place to protect krill and its environment.xlvi C. Krill Have Many Uses When fresh, krill have too strong a taste for direct human consumption; and when dehydrated, krill are bland with a distinct aftertaste.xlvii Some, however, consider krill “palatable.” xlviii Krill have a high protein and energy content, and are nutritious with essential amino acids.xlix Krill are processed into a variety of products including food for human consumption, bait, and animal feed, including food for aquaculture farms.l Until recently, krill’s rapid enzymatic breakdown has limited krill fishing.li Krill rots quickly and must be processed within 1 to 3 hours of being caught.lii Improvements, however, in technology have made it easier to both process krill and to endure the harsh conditions in the Southern hemisphere.liii Finally, krill are increasingly in demand, especially as feed and feed supplements for aquaculture. liv The United Nations Food and Agriculture Organization (FAO)lv estimates that the global demand for fish will expand from 133 million tons in 1999/2001 to 183 million tons by 2015lvi and that 73% of the increase in that global demand will be provided by aquaculture.lvii In addition,

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28 krill has also been identified as a potential source of pharmaceuticals, including increasingly popular omega-3 fish oils.lviii

III. The Legal Framework that Impacts Antarctic Krill A. The Voluntary and Ambiguous Nature of International Law A complex mix of international treaties are available to protect our oceans, but the enforcement mechanisms and protection levels available for high seas fisheries under international law do not have the same bite found in domestic fishing regulations.lix Although it is beyond the scope of this paper to explain international law in depth, the international law concepts briefly described below play a critical role in the question of Antarctica and its host of international treaties. First, international environmental law governs agreements made between sovereign States, and in that governance lies a fundamental tension between a State’s interest in protecting its independence (State sovereignty)lx and environmental issues that require international cooperation.lxi In response to that tension between State sovereignty and jointly held environmental challenges, Countries or “States” chose to join treaties voluntarily.lxii For instance, if the treaty which manages fishing around Antarctica decides to change its catch limits, these catch limits would only apply to those States that had joined the treaty.lxiii And even then, a State may be able to opt out of the new catch limits and still remain in good standing as a Party to the treaty.lxiv In contrast, State domestic law binds all citizens. A U.S. fishing regulation, for instance, binds all U.S. citizens

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28 and other States that fish within our territorial waters. Being bound by the statute or regulation is not voluntary, and opting out is not an option with domestic legislation. Second, as mentioned supra, member States may sometimes opt out of some part of a treaty, but opt out clauses do not occur in all treaties. For instance, a member State of the United Nations Law of the Sea Convention,lxv may not opt out of any part of the Convention.lxvi The Protocol on the Environment of Antarctica also expressly binds member States to all provisions of the agreement.lxvii Also, States ratify treaties and international agreements through a variety of means, and international law has not developed in any strategic or systematic way.lxviii Agreements may be bilateral between two countries,lxix or multilateral in nature, addressing a variety of regional or international environmental issues.lxx In addition, not all treaties fall under the ambit of the United Nations. For example, the original signatories of the Antarctic Treaty crafted the agreement without U.N. involvement, and although the U.N. has shown an interest in Antarctica, the member States of the Antarctic Treaty continue to retain their independence. lxxi Finally, in addition to law created through treaty agreements, international law can also be created through a process of generalized agreement called “customary law.”lxxii The courts recognize customary law as binding when it satisfies two requirements: first, the court must show that State practice is

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28 consistent with the rule; and second, the court must demonstrate that States act in accordance with the rule from a sense of legal obligation to do so.lxxiii In the following section, the relevant collection of treaties that cover Antarctica and its surrounding waters are discussed and analyzed regarding their fisheries management frameworks and available enforcement protocols.lxxiv B. Fish Fights and the Times Before the Ratification of the United Nations Law of the Sea Convention Before the ratification of the United Nations Law of the Sea Convention, States fought over control of the ocean’s fisheries. For instance, in the 1950s and 1970s, Iceland had a series of confrontations with Great Britain over fisheries after Iceland unilaterally declared it was extending its exclusive fishing zone from 12 miles to 50 miles.lxxv British vessels refused to recognize Iceland’s claim, and they continued to fish within the 50-mile zone.lxxvi What followed is famously known as the “Cod Wars,”lxxvii which involved a series of sometimes violent confrontations between British fishing vessels and the Icelandic Coast Guard.lxxviii The Icelandic Coast Guard chased British trawlers, which were accompanied by British warships. The warships rammed the Icelandic ships, and this action caused a considerable amount of outrage amongst the Icelandic public.lxxix In 1976 alone, over four dozen rammings occurred.lxxx Finally, the situation was taken before the International Court of Justice (ICJ), which ruled that in the case of a dispute between the coastal State’s rights to manage its fisheries and another’s high seas rights to fish, no one Party’s rights trumped the other’s, and both parties shared the right to fish and the responsibility to conserve the fishery.lxxxi The court ruled:

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28 It is one of the advances of maritime law, resulting from the intensification of fishing, that the former laissez-faire treatment of the living resources of the high seas has been replaced by a recognition of a duty to have due regard to the rights of other states and the needs of conservation for the benefit of all. Consequently, both Parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information, the measures required for conservation and development of equitable exploitation of those resources.lxxxii Iceland had a similar dispute with Germany in 1974, and in this case the International Court of Justice ruled that Iceland was not entitled to exclude fishing vessels of the Federal Republic of Germany from areas between the 12-mile and 50-mile limits or unilaterally to impose restrictions on their activities in such areas.lxxxiii Iceland had again extended its exclusive fishing rights to 50-miles beyond its coastline because it considered the fisheries within this region of vital interest. In addition, Iceland refused to submit to the jurisdiction of the international court in any case involving the extent of its fishery limits.lxxxiv The court, noted, however, that even though the question of breadth of territorial sea and that of the extent of the coastal State’s fishery jurisdiction had been left unsettled at the 1958 U.N. Conference on the Law of the Sea, two concepts of customary law generally applied: first a coastal state could exercise exclusive control over fisheries within the 12-mile limit referred to as the territorial sea; and second, in waters adjacent to territorial waters, preferential fishing rights go first to the coastal State if there is a special dependence on its fisheries.lxxxv

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28 C. The Ratification of the United Nations Law of the Sea Changed Ocean Governance, But Not Enough to Protect Krill Before the ratification of the United Nations Convention on the Law of the Sea, the waters surrounding Antarctica had no sovereign and any State, if it were able, could fish for krill without limit.lxxxvi After the ratification of the Convention, it still did not protect the waters surrounding Antarctica as Antarctica continued to have no sovereign and was therefore relegated under the minimal protections granted under the high seas.lxxxvii Still, the ratification of the United Nations Convention on the Law of the Sea in 1982 clarified the status of fisheries in several ways and established rules concerning the governance of the high seas.lxxxviii First, and perhaps most importantly, the Convention created or codified an express limit of jurisdiction for the coastal state, an area called the “exclusive economic zone” (EEZ).lxxxix The EEZ includes all waters from the coastal state’s low-water mark at shore out to 200 miles.xc The creation of the EEZ allows a sovereign nation to control adjacent waters and the fisheries within those waters,xci where previous to the ratification of the Convention, a coastal state did not necessarily have control over its adjacent waters.xcii Next, the Convention codified the notion of the “high seas,” xciii by designating the high seas as the ocean beyond the EEZ.xciv Because Antarctica had no sovereign when the Convention was ratified, the waters surrounding Antarctica fell into the category of “high seas” as there was no corresponding coastal state.xcv The Convention provides that “all states have the right for their nationals to engage in fishing on the high seas.”xcvi This provision is critical as it

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28 reaffirms the centuries-old tradition of the freedom of the high seas, and although the Convention calls for conservation measures and cooperative management, those provisions are too general to be effective and enforcement of the provisions is limited.xcvii Specifically, although the Convention mandates that States shall adopt measures to conserve living marine resources on the high seas,xcviii several loopholes exist that weaken the goal of high seas conservation efforts. For instance, States have a duty to adopt measures for conservation of the living marine resources,xcix although “conservation measures” is not defined, and in the case of krill fisheries, conservation efforts needed to ensure the health of the krill are unclear.c In addition, States have a duty to “cooperate” and “enter into negotiations,”ci but States are not obliged to settle their negotiations, and “cooperate” lacks definition.cii Finally, the Convention mandates that States use the “best scientific evidence available,”ciii but weakens this requirement by allowing the best scientific evidence available to rest both upon the relevant environmental and economic factors, including “any special requirements of developing States.”civ This caveat for special requirements for developing states could be a carte blanche to fish without restriction if it can be construed that the State relies upon the fishery for food or economic gain.cv Thus, the Convention attempted to resolve the conflict between coastal States that relied upon the seas for commerce, navigation, and security, and the interests of non-coastal States that saw the high seas as a common resource to be available to all nations for both safe passage and resource extraction.cvi

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28 D. The Fish Stocks Agreement Attempts to Strengthen Controls over Fisheries In order to remedy the weak framework regarding living marine resources, the United Nations implemented the “Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.”cvii Otherwise known as the “Fish Stocks Agreement,” this implementing agreement under the Convention aims to strengthen the limits on fishing initially outlined in the Convention.cviii However, the Fish Stocks Agreement takes the extraordinary step of attempting to limit fishing on the high seas to member states that are Party to the appropriate corresponding regional fishery management organization.cix Although the Convention codifies a degree of fisheries management on the high seas,cx this notion of extending jurisdiction into the high seas for the purposes of fisheries management contravenes the foundational principles of the Vienna Convention of the law of treaties which states that a country is bound to the confines of a treaty only through its agreement to be bound, not by its inaction or through the actions or agreements of other States.cxi Where the Convention states that parties must cooperate and enter into negotiations, Fish Stocks expressly states that “[o]nly those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such an organization or arrangement, shall have access to the fishery resources to which those measures apply.”cxii In addition, this provision of Fish Stocks does not reflect customary law, which

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28 means that the international community as a whole does not accept this unilateral extension of jurisdiction into the high seas.cxiii E. The Convention on the Conservation of Antarctic Marine Living Resources Specifically Targets Krill Conservation, But Lacks Sharp Teeth The same year that the 1982 LOS Convention was ratified, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) came into force.cxiv The purpose of CCAMLR is to conserve marine life of the Southern Ocean, and it was established largely in response to concerns that an increase in krill catches in the Southern Ocean could have a serious impact on populations of krill and other marine life, especially the Baleen whale, birds, seals, and fish, which mainly depend on krill for food.cxv The geographic scope of CCAMLR’s application follows the Antarctic Convergence,cxvi the biological boundary that defines the limits of the Antarctic marine ecosystem.cxvii The international environmental community greeted CCAMLR with great optimism, and it was hailed for its “ecosystem”cxviii approach to managing an international resource.cxix Specifically, Article II(3)(c) provides that any harvesting and associated activities in the area under which CCAMLR applies shall be conducted with the following principles of conservation: a) prevention of decrease in the size of any harvested population which would render it unsustainable; b) maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources and the restoration of depleted populations c) prevention of changes or minimization of the risk of changes in the marine ecosystem which are not potentially reversible over two or three decades, taking into account impact of harvesting, introduction of alien species, and the effects of changes in the marine ecosystem all with the goal of making

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28 possible the sustained conservation of Antarctic marine living resources. cxx Unfortunately, despite the clear mandate under CCAMLR to apply the ecosystem approach to protect the Southern Ocean’s fisheries and other living marine resources, overfishing plagues the CCAMLR region, and overfishing is not easily remedied due to CCAMLR’s weak enforcement framework.cxxi F. CCAMLR’s Limited Enforcement CCAMLR lacks an effective enforcement mechanism both with regard to member States and non-member States to adequately support its environmentally protective goals.cxxii First, any decisions made by CCAMLR on matters of substance are made by consensus.cxxiii Consensus means that any member of the Commission can prevent the promulgation of matters of substance with their single vote. cxxiv In addition, after the adoption of a conservation measure, any member of CCAMLR may, within 90 days following notification of the implementation of a conservation measure, inform the Commission that it is unable to accept the conservation measure in whole or in part and the measure will not, to the extent noted by the Party, be binding upon that Contracting Party member.cxxv Members are therefore able to pick and choose amongst conservation measures and still remain in good standing and be able to benefit by their membership in the agreement.cxxvi Finally, enforcement options under CCAMLR are exceedingly weak where each Contracting Party to CCAMLR shall take “appropriate measures within its competence to ensure compliance with the provisions of the Convention and its conservation measures.”cxxvii But if a Contracting Party to CCAMLR does not meet its obligations, only sanctions can

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28 be imposed on the Party to encourage compliance.cxxviii G. CCAMLR Monitors Fishing with Vessel Monitoring Systems, Except for Krill Boats Currently, nearly all vessels licensed to fish within the CCAMLR region are monitored through the use of an automated satellite-linked Vessel Monitoring System (VMS).cxxix The record of the vessel’s position along with accurate and timely fishing logs allow CCAMLR to monitor the type of fish caught, the amount, and the location and time of the catch.cxxx This information is compiled and is a vital to understanding and monitoring the fisheries.cxxxi CCAMLR has strengthened VMS operation in recent years to add data beyond general fishing information, including specific geographical positions accompanied by date, time, speed, and course of the vessel fishing within the CCAMLR region.cxxxii Although most CCAMLR members have been in favor of using VMS for krill fisheries, opponents have argued that the VMS is unnecessary as the total krill catch is currently “well below the catch limit.”cxxxiii Without VMS on krill vessels, it is impossible to monitor compliance with catch limits.cxxxiv At the 2008 CCAMLR Scientific Commission meeting, the Commission noted that the reported total krill catch for 2008/2009 was in excess of the level recommended through CCAMLR for the second year in a row.cxxxv Commission members also warned that the current level of 620,000 tons may not be as precautionary as previously assumed.cxxxvi The European Community, Australia, and the UK all urged a precautionary approach when considering krill management.cxxxvii In addition, the US, South Africa, and Chile all expressed concerns that the Scientific Committee’s deliberations this last year had been

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28 tainted by politics, as some countries objected to the Committee’s findings even though they did not send their own expert, or the representative they sent to the scientific committee did not have the appropriate level of expertise.cxxxviii Chile also noted that the “precautionary approach should prevail and under such circumstances political solutions may only then be provided in the absence of scientific evidence.”cxxxix In contrast, other members of CCAMLR hesitated to place further restrictions on krill harvesting.cxl For instance, Japan back-pedaled and announced that it had decided against its earlier agreement to have scientific observers on board all of its krill boats, claiming that having one hundred percent coverage of its krill boats cost too much.cxli The Republic of Korea said that while it supported a more cautious approach, it also recommended further model development.cxlii The Ukraine, Norway, and China all expressed similar concerns regarding data uncertainties.cxliii Remember that the structure of CCAMLR requires consensus before new requirements can be made, and that even a small group within the treaty could prevent more stringent requirements for krill harvesting from being implemented. cxliv It is also worth noting that some countries stand to gain from an unregulated krill fishery, and that krill makes excellent feed for aquaculture. cxlv China and Southeast Asia currently produce 90% of the world’s aquaculture, FAO projects the Chinese aquaculture will continue to expand.cxlvi Finally, new fishing technologies greatly increase the potential for reaching the 620,000-ton trigger level as set by CCAMLR in a very short time.cxlvii The

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28 Norwegian aquafeed and fishing industry is leading the krill charge with the use of modern harvesting techniques, which allow for simultaneous catching and onboard processing of krill.cxlviii This technology solves the problem of the rapid deterioration of krill, and catch projections are increased up to 120,000 [tons] per year per vessel, which was one of the key factors preventing more vigorous krill harvesting.cxlix Thus with no regulation of the Antarctic krill fishery, and increased capacity to fish for krill, the krill population may soon face serious degradation.cl H. CCAMLR Also Attempts to Control Overfishing by Non-Party States Since CCAMLR’s region corresponds in part to the high seas, States that are not a Party to CCAMLR can fish within limits in the CCAMLR region under the ambit of the 1982 LOS Convention’s rules for high seas fisheries.cli CCAMLR has attempted through various controls to tighten up the enforcement aspect of the agreement to contend with “illegal”clii and unregulated fishing.cliii Under conservation measure 10-07, CCAMLR provides that all parties that have agreed to be bound by the treaty (Contracting Parties) shall take all necessary measures, subject to and in accordance with their applicable domestic laws and international law to restrict Non-Contracting Parties and illegal and unregulated fishing. These measures include withholding fishing licenses in areas under which the Contracting Party has jurisdiction, refusing aid through support vessels, refueling vessels and the like in any transshipment or joint fishing operations, and denying Non-Contracting Parties and illegal and unregulated fishing access to port except in the case of an emergency or during an enforcement action or for

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28 emergencies caused by “acts of nature.”cliv In addition, in the case where a boat is inspected and found to be in violation of conservation measures, inspectors may confiscate the fish, prohibit Contracting Parties from chartering the boat, and encourage Contracting Parties to refrain from dealing with or from transhipping the fish.clv I. Frustrated with Limited Remedies for Enforcement Under International Law, Some Have Taken the Law Into Their Own Hands Some parties have become so aggravated by the lack of meaningful enforcement mechanisms in international environmental treaties that they have taken the matter of enforcement into their own hands. Paul Watson, an original founder of Greenpeace, has taken it upon himself along with his crew to enforce agreements that protect the global commons. It is perhaps through his unilateral actions that the inadequacy of enforcement protocols are made the most evident.clvi Frustrated with Greenpeace’s conventional non-violent protests over whaling, Watson has taken on a more aggressive approach to environmental activism.clvii His approach has included such actions as firing smoke canisters onto whaling boat decks, using nylon ropes to disable propellers, nailing shut drains that spill whale blood into the ocean, and the ‘”pirate-esque”’ ramming of whaling boats.clviii Beginning in 1979, Watson rammed and sunk a “notorious” illegal whaling vessel named the Sierra off the coast of Portugal.clix Since then, Watson, flying the Jolly Roger from his ship the Sea Shepherd, has claimed to have rammed and sunk nine other whaling ships, and to have damaged several others.clx When asked under what authority Watson claims to justify his unilateral actions, he replied that he is simply upholding international conservation law,

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28 specifically through the U.N. World Charter for Nature, which “says that any nongovernmental organization, or individual, is empowered to uphold international conservation law.”clxi Although the Sea Shepherd maintains that the Charter for Nature gives them the legal authority to justify their enforcement actions on the high seas, opponents of Sea Shepherd’s actions counter that the Charter for Nature is merely a policy document and lacks any real authority.clxii

IV. Increased Enforcement and Creation of a World Park: Two Possible Solutions that Probably Won’t Work A. Enhance Enforcement Powers Many scholars have called for an increase in enforcement powers in order to curtail environmental harm to our oceans.clxiii Environmentalists and NGOs have called for more monitoring of krill boats, and some have also suggested the use of marketing plans to increase public awareness about the fish they eat.clxiv This plan involves both the cooperation of the fish wholesaler and the general public so that the final “enforcement” comes down to the consumer who knows to ask “how was this fish caught?” clxv Using these “end user” strategies for krill, however, might not be that effective.clxvi Unlike the Chilean sea bass, krill does not come as big piece of fish covered in cream sauce at a fancy restaurant.clxvii Many products contain krill, such as pharmaceuticals, cosmetics, and supplements for fish food in aquafarms.clxviii The question with krill is therefore not “was this krill caught sustainably” but rather “was this farm raised salmon feed in part on krill caught by a country that refuses to join CCAMLR?”clxix

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28 The question of increased enforcement to protect Antarctic krill comes back to bolstering the treaties that protect fisheries by either building upon what enforcement already exits, and/or building new enforcement regimes.clxx Many obstacles will thwart this proposition of bolstering enforcement.clxxi First, international law relies upon voluntary cooperation, and the UN Charter makes it clear that States can not bound by an agreement to which they did not expressly join.clxxii Therefore, the foundational structure of international agreements favors State sovereignty over the management of the global commons, and States cannot be made to abide by rules regarding the commons without their consent.clxxiii The 1982 LOS Convention provides some direction towards management of high seas krill fisheries, but the provisions under the Convention allow member States much leeway.clxxiv For instance, the Convention requires member states only to “cooperate” with each other and to produce a “management plan” for high seas fishing as discussed supra.clxxv Although the Convention acknowledges that all States have a duty to take such measures as may be necessary for the conservation of living resources of the high seas, the implementation of this duty remains murky.clxxvi And even if a conflict is brought before the International Court of Justice on a charge that a member State of the Convention has failed in its duty to conserve the living resources of the high seas,clxxvii a member state may still avoid its responsibility by not accepting the jurisdiction of the International Court of Justice.clxxviii For instance, in the case of the Spanish fishing vessel the Estai, a conflict between Spain and Canada arose when the Canadian Coast Guard

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28 boarded and seized the Estai, even though she fished the waters of the high seas fifty nautical miles outside of Canada’s EEZ.clxxix Previous to the boarding, Canada had expanded its police powers so that it could patrol waters managed by the North Atlantic Fisheries Association.clxxx Canada had also filed an amendment with the ICJ that removed Canada from the ICJ’s jurisdiction with regards to fisheries management issues.clxxxi Therefore, even though several of the justices stated that issues regarding high seas conservation and management were meant to be heard before an international court, the amendment filed by Canada frustrated their purpose and protected Canada from the sanction of the court.clxxxii In addition, the Fish Stocks Agreement attempts to tighten up management of fisheries on the high seas under the Convention, but the agreement contains several contradictions.clxxxiii First, the Agreement attempts to bind unwilling third parties to the confines of the Agreement.clxxxiv This extension of the Agreement’s reach to third parties contravenes international law as discussed supra under the UN Charter.clxxxv In contrast, the Fish Stocks Agreement directs State Parties to take measures consistent with international law to deter activities of vessels flying the flag of Non-Parties which undermine the effective implementation of Fish Stocks.clxxxvi Also, since Fish Stocks is an implementing treaty of the Convention, the enforcement protocol outlined in the Convention applies should there be any dispute regarding the application of Fish Stocks.clxxxvii Finally, under Fish Stocks, Party States “shall encourage” non-parties to Fish Stocks to become parties to the agreement and adopt all laws and provisions consistent with Fish Stock’s goal of

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28 long-term conservation and sustainability of the world’s fisheries.clxxxviii Therefore, with vague standards under both the Convention and Fish Stocks, the fate of high seas fisheries looks grim.clxxxix Shoring up these weaknesses could improve management and enforcement of rules for krill fisheries, but that takes us back to the foundational structure of international law which relies upon voluntary compliance and respects State sovereignty.cxc Finally, CCAMLR was designed specifically with the goal of protecting Antarctic marine living resources and it currently has many effective provisions in place towards management of the waters around Antarcticacxci. However, the Commission of CCAMLR meets only once a year,cxcii decisions must be made by consensus,cxciii any Party can opt out of any provision,cxciv and only sanctions are available for an enforcement mechanism.cxcv As with most fishery agreements that set specific catch limits and manage specific areas, the more specific the agreement (e.g. specific catch limits) the more relaxed the enforcement requirements.cxcvi Some say that the relaxed standards encourage membership, but it also leaves krill unprotected from those States that do not have the same conservation concerns.cxcvii Therefore, the current collection of treaties and agreements do not protect krill, and time has come to try a more decisive approach before it is too late.cxcviii B. Creation of a World Park Greenpeace, along with many other environmental organizations, have called for Antarctica to be declared a “world park” in response to the threat of increased level of fishing exploitation and the specter of mining on the

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28 continent.cxcix The World Resources Institute speaks for many individuals and organizations concerned with protection of Antarctica in its statement that Antarctica is “too valuable to the health of the planet and our understanding of how the planet works to take a short-term approach to securing environmental protection and species conservation there.”cc New Zealand first proposed that Antarctica should be given world park statuscci at a meeting of Antarctic Treaty nations in 1975, but the voting members of the Antarctic Treaty did not embrace the plan.ccii The establishment of a world park would shift the responsibility of governing and protecting Antarctica to the world community, although the specifics of how the world community would take over Antarctica and subsequently dispose of currently sovereignty claims remains undecided.cciii The concept of turning Antarctica and its surrounding waters into a global park poses several challenges.cciv First, some critics claim that global park status will force out research stations in Antarctica. ccv Although the prohibition of scientific research in Antarctica seems unlikely should it be granted world park status as the preamble to the Antarctic Treaty establishes that Antarctica shall be used for “the interest of all mankind”ccvi and the Madrid protocol “designates Antarctica as a natural reserve, devoted to peace and science,”ccvii some scholars worry that declaring Antarctica a world park could in fact limit scientific research on the continent, such as the CCAMLR Ecosystem Monetary Program (CEMP).ccviii In addition, the United Kingdom raises the concern that once economic pressures build so that mining in Antarctica becomes cost-effective, the

24

28 world park concept may be “brushed aside” and Antarctica would become a freefor-all as the environment is forever destroyed.ccix Most importantly, the wrestling away territorial claims that have been set aside but not forgotten since the early 20th century and will continue to haunt any business regarding the status of Antarctica.ccx Consultative Parties have continued to show their lively interest in their claims, and have repeatedly expressed their desire to continue to retain them.ccxi Therefore, the likelihood of obtaining global park status remains small. Political scientist Ken Conca warns that at the grassroots level, people generally believe that “global . . . institutional intergovernmental cooperation will not be forthcoming anytime soon. [As a result] people at the grass roots are looking for more practical approaches on a more regional rather than global scale.”ccxii

V. Grant Sovereignty to Claimant States and Consultative Party Members of the Antarctic Treaty By granting sovereignty of Antarctica to some State, Antarctica could protect itself through domestic law and conservation mandates listed under the Convention.ccxiii The granting of sovereignty would allow the State to enforce domestic statutes within its own EEZ, which in the case of Antarctica would include the Southern Ocean up to 200 miles out from the coastline of Antarctica.ccxiv This creation of an EEZ would place Antarctica’s krill fisheries under the State’s control, where the State would have a duty to conserve the krill and an ability to enforce its own domestic statutes regarding fishery management.ccxv

25

28 A. The Antarctic Treaty: An Agreement that Agrees to Disagree In order to consider the possibility of granting sovereignty to Antarctica, understanding the history of the ratification of the Antarctic Treaty is crucial.ccxvi Territorial claims to Antarctica began in the early twentieth century, and they are often traced back to claims of who “discovered” Antartica first.ccxvii The French claim that explorer Bouvet De Lozier was the first to “discover” Antarctica when he sighted Bouvet Island, a tiny island approximately1,000 miles North of the Antarctic continentccxviii in 1739. Next, British explorers including Captain James Cook circumnavigated Antarctica and discovered South Georgia Island, an island approximately 750 miles northwest of Antarctica circa 1772-75.ccxix South Georgia Island is currently administered by the U.K. and claimed by Argentina.ccxx The British first saw the mainland of Antarctica in 1820, and actually reached the coastline in 1841. However, the Russians claim that they first sighted the continent, and the Americans have a claim as well. ccxxi Norwegian Roald Amundsen was undisputedly the first to reach the actual South Pole, and expeditions by various countries through the 18th and 19th centuries appear to be “principally motivated by imperialistic desires of conquest, colonization, and expansion of territory. . .”ccxxii Interest in Antarctica continued through the 19th and 20th centuries with both an eye to commercial gain, military advantage, and scientific curiosity.ccxxiii Today, 3,500 scientists and support personnel live and work in Antarctica in the summer months primarily for the purposes of furthering environmental research.ccxxiv The population shrinks to 350 people during the dark of winter.ccxxv

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28 B. A Mess of Sovereignty Theories The twelve original signatories to the Antarctic Treaty can be divided into two distinct groups: “Claimant States” and “Non-Claimant States.”ccxxvi Although the Antarctic Treaty does not distinguish between Claimant and Non-Claimant States, ccxxvii the distinction is important historically as it shows the complexity of the question of sovereignty in Antarctica.ccxxviii The Claimant States of Chile, Argentina, France, Norway, Great Britain, New Zealand, and Australia staked an actual claim to the territory of Antarctica, and in this action and claimed a portion of the continent as their own.ccxxix The seven Claimant States did not, however, base their claims upon a unified theory of sovereignty. ccxxx Instead, the Claimant States based their territorial claims on one of three theories. ccxxxi These three theories variously relied upon combined acts of discovery and exploration, the performance of certain administrative acts, or the extension of sovereignty through existing claims which essentially cut Antarctica into distinct (but overlapping) sectors.ccxxxii The Non-Claimant States Belgium, Japan, South Africa, the former Soviet Union and the United States had no territorial claim to Antarctica. Specifically, the United States and the former Soviet Union did not assert territorial claims and did not recognize any other claims, although they both reserved the right in the future to stake a claim.ccxxxiii Belgium, Japan, and South Africa also did not acknowledge the claims of Claimant States, but in contrast they did not reserve a right to make a future claim.ccxxxiv

27

28 Despite this cold-war mix of uncertain alliances, the Antarctic Treaty makes an excellent start.ccxxxv The treaty first establishes that Antarctica shall be used for peaceful purposes and recognizes that “it is in the best interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”ccxxxvi Military bases are not to be established in Antarctica, and nuclear weapons of any kind are not to be used.ccxxxvii Cooperation and scientific research are also stated goals: “cooperation on the basis of freedom of scientific investigation in Antarctica . . .accords with the interests of science and the progress of all mankind.”ccxxxviii And although the Antarctic Treaty may appear to be a model of international cooperation, the treaty negotiations occurred against a steely backdrop of U.S.—Soviet rivalry, which some scholars believe fashioned most, if not all, of the major features of the Antarctic Treaty system.ccxxxix In addition, sovereignty remained an unsettled issue as the original Claimant States had no interest in abandoning their claims, and countries such as the United States had strategic reasons for not staking a claim.ccxl This mix of cold war politics and territorial claims of the early twentieth century led to the “famous accommodations of territorial claims”ccxli that would later become Article IV of the Treaty—a device which deferred the ultimate question of sovereignty through the simultaneous acceptance and denial of territorial sovereignty.ccxlii Frozen sovereignty is not surprising as Claimant States disagreed regarding the validity of each other’s claims. For instance, some States such as

28

28 Australia and Argentina based their claims on proximity to Antarctica and saw it as a natural extension of their own territory, where as other Claimants such as Great Britain and Norway viewed their stake as being grounded in the discovery and exploration of Antarctica.ccxliii The Non-Claimant States argued that no one should stake a claim because of Antarctica’s unique geophysical properties. NonClaimant States also argued that since the claims already staked are unclear and in some cases overlap, these claims are yet to be duly recognized.ccxliv Ironically, this ambiguous result has been held up as the “poster child”ccxlv of international law for its successful compromise on the vital issue of sovereignty. Also, the Antarctic Treaty does not exist under the umbrella of the U.N., even though the U.N. would like to play a greater role in Antarctica.ccxlvi The Antarctic Treaty has chosen not to include U.N, and the twelve original signatories prefer to keep their independence.ccxlvii The freezing of territorial claims also ensures a more unified system, and that unification could be threatened if the U.N. took charge with its own system of governance.ccxlviii In addition, only those nations that do “substantial scientific research”ccxlix have a vote in shaping policy in Antarctica.ccl Since this group is fairly small, achieving consensus (an essential element to amending the treaty or establishing policy) is more likely.ccli Finally, since 1959 thirty-five more countries have joined the Antarctic Treaty. They include sixteen Consultative Parties,cclii and nineteen NonConsultative Parties.ccliii Remember that the Consultative Parties may vote and

29

28 must do “substantial scientific research” in Antarctica; the Non-Consultative Parties have observer status only.ccliv C. A Solution: Protect the Waters Surrounding Antarctica by Granting Sovereignty to those Countries that have Established Research Stations in Antarctica Considering the complexity of the sovereignty issue, and the continuing evolution of States’ involvement in Antarctica through the establishment of scientific research stations and/or conducting research expeditions, granting sovereignty presents a considerable challenge.cclv The following outlines some rudimentary possibilities: first, sovereignty could be granted to the original seven Claimants that had territorial claims in Antarctica.cclvi Although their claims overlap in part, the history of their claims can be traced and all seven of the original Claimants continue to have an interest in Antarctica.cclvii Taking this approach however, would present considerable difficulties.cclviii First, the Antarctic Treaty includes twelve original signatories, and the five original signatories are unlikely to relinquish their interest in Antarctica.cclix Second, the Antarctic Treaty now has forty-five active members including both Consultative parties and Non-Consultative parties.cclx It seems reasonable to assume that the remainder of the original signatories plus those that have gained Consultative Party status since the treaty’s ratification would resist the granting of sovereignty to the original seven Claimants.cclxi Granting sovereignty to the original twelve signatories would also present substantial difficulties as twenty-eight countries currently have Consultative status in the Antarctic Treaty. cclxii Having Consultative Party status means that the

30

28 Party has demonstrated an interest Antarctica by “conducting substantial research activity there, such as the establishment of a scientific station or the despatch [sic] of a scientific expedition.”cclxiii It is unlikely that Consultative Parties will be willing to abandon their research efforts and commitments.cclxiv This paper proposes that sovereignty be granted to the current Consultative Parties that have research stations in Antarctica already in place.cclxv The Consultative Parties need to take a stand and become permanent stewards both of the continent of Antarctica and of the Southern Ocean surrounding the continent so that they may manage the ecosystem of the Southern Ocean for the benefit of everyone.cclxvi This paper proposes that the Consultative Parties gain sovereignty as a collective, and that the principles and conservation measures in CCAMLR will act as their “domestic statutes” with regards to management of the Southern Ocean.cclxvii By gaining a quasi-sovereignty and dissolving the frozen sovereignty in the Antarctic Treaty, the twenty-eight Consultative Parties to the Antarctic Treaty will gain an EEZ through the 1982 LOS Convention,cclxviii which will allow the Consultative Parties to extend domestic enforcement powers 200 miles off the shores of Antarctica. cclxix Sovereignty will also impose a duty upon the Consultative Parties to ensure that proper conservation measures are used so that overexploitation of marine living resources within the EEZ does not occur.cclxx Granting sovereignty has definite drawbacks.cclxxi First, granting sovereignty could open up entitlements to mining, oil and gas exploration.cclxxii The continent of Antarctica may contain a vast wealth of mineral resources,

31

28 although the harsh climate and difficult access make the resources currently uneconomical to extract.cclxxiii Granting sovereignty could, however, give the Consultative Parties license to exploit resources as the technologies to do so become available.cclxxiv Also, the Non-Consultative Parties and other interested States will probably present the greatest hurdle to granting sovereignty to the Consultative Parties, as they will be reluctant to abandon their interests there.cclxxv To counter these potentially disastrous outcomes, this paper recommends that sovereignty be granted in a limited fashion, so that the Consultative Parties of the Antarctic Treaty continue to honor the environmental ethics laid out in the Madrid Protocol, and enact a permanent ban on mining.cclxxvi Also, the Consultative Parties as a group should adopt and enforce the conservation measures of CCAMLR within their newly created EEZ.cclxxvii Finally, all parties to the Antarctic Treaty, including Non-Consultative Parties, should be granted equal access to the newly created EEZ as resources allow.cclxxviii

Conclusion The current state of the world’s fisheries is grim.cclxxix The overexploitation of living marine resources has led to accelerated depletions of an alarming number of fish, shellfish, turtle, and mammals.cclxxx For instance, overfishing coupled with possible changes in weather patterns decimated the anchovy fishery off Peru in the 1960’s and nearly led to the collapse of the cod and mackerel stocks in the Southern Ocean.cclxxxi Some believe that Patagonian toothfish hover on the “brink of extinction,”cclxxxii and the U.S. Fish and Wildlife

32

28 Service list 151 species of fish as either endangered or threatened worldwide. Although the current status of the krill population remains uncertain, incomplete data on krill fisheries and the impact that fishing will have on krill in the future makes it difficult to determine reasonable catch limits.cclxxxiii All that is known with certainty is that krill provide a vital foundational link to the Southern Ocean’s food chain, and that the degradation of krill populations would have a devastating impact upon the Southern Ocean’s ecosystem.cclxxxiv Avoiding the tragedy of the commons requires that individual States take responsibility for our shared resources and provide a framework by which conservation measures can be reliably enforced.cclxxxv Antarctica is the last continent on earth that has no sovereign, and the waters surrounding Antarctica are part of the global commons which are subject to no enforceable management plans.cclxxxvi At this point, any country, should it have the ability, can take any of the resources of Antarctica and its surrounding waters, mineral resources or limitless amounts from the sea without any objection from the world community.cclxxxvii Just a few weeks ago, the United States hosted the 32nd Antarctic Treaty Consultative Meeting (ATCM) in Baltimore, Maryland.cclxxxviii Nearly four hundred diplomats, Antarctic program managers and logistics experts, and polar scientists from forty-seven countries attended the ATCM to discuss several issues, including environmental protection, the advancement of science, and the management of tourism.cclxxxix The Baltimore ATCM occurred as the Antarctic Treaty marks its 50th anniversary of the treaty’s first ratification in Washington

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28 D.C. in 1959.ccxc Under the banner of and this year’s theme of “fifty years of peace,”ccxci Secretary of State Hillary Rodham Clinton delivered her remarks. Her proenvironment stance signals that the new administration will support international environmental partnerships.ccxcii After praising the “the genius of the Antarctic Treaty” Secretary Clinton focused on climate change, and noted that climate change has already destabilized communities on every continent, endangered plant and animal species, and jeopardized critical food and water sources.ccxciii Secretary Clinton then announced that President Obama has sent the Annex to the Protocol on Environmental Protection (Madrid Protocol) to the Senate and has urged them to give their consent.ccxciv The Annex lays out a framework for contending with liability arising from environmental emergencies, and would serve as a next step in enhancing environmental protection in Antarctica.ccxcv This annex to the Madrid Protocol would set a new standard in international environmental law and signals a crucial shift policy.ccxcvi Since most multilateral environmental agreements are only “morally binding,”ccxcvii the success of each agreement depends in large part upon the ability of each individual State to enforce its treaty obligations against its own citizens.ccxcviii This self-policing strategy, however, has begun to change. In the case Environmental Defense Fund v. Massey,ccxcix the court held that the National Environmental Policy Act (NEPA) applies to actions taken by the federal government in Antarctica.ccc The National Science Foundation argued that the requirements under NEPA would limit their activities in Antarctica, but the court

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28 did not agree.ccci This court decision has defeated any notion that the Federal government is beyond the reach of our environmental policies when it operates in Antarctica.cccii Law Professor David J. Bederman describes this court decisions as a “stunning defeat” ccciii for those who wish to operate without regulation in Antarctica, and is a positive turn towards the possibility of real enforcement and environmental controls in Antarctica.ccciv Secretary Clinton’s announcement of the administration’s support of the annex indicates we can expect continued support of environmentally progressive policies from this administration, and expect that environmental damage will continue to be subject to legal liability, not just moral condemnation.cccv Secretary Clinton also announced that the United States has submitted a proposal to the Consultative Parties of the Antarctic Treaty to extend marine pollution rules in a manner that more accurately reflects the boundaries of the Antarctic ecosystem, and noted that strengthening environmental regulation is especially important as tourism to the Antarctica increases.cccvi This is a boon for the protection of krill, as environmentally sound practices especially with respect to marine pollution is key to supporting a healthy krill population.cccvii Secretary Clinton called for greater international cooperation to prevent discharges from these ships that will further degrade the environment around the Antarctica.cccviii Finally, Secretary Clinton recognized that the Antarctic Treaty serves as a model, and is a “living example of how we can form a vital partnership to meet the challenges of this time.”cccix

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28 The scientists who endure Antarctica are a unique community in that while each individual country they represent may not agree on the global stage, in Antarctica’s isolated environment, scientists have come together with the common goal of learning about the our planet and protecting our natural resources.cccx Currently, sixty four research stations operate in Antarctica, and of those thirty seven are year-round.cccxi The Station’s average winter population hovers around 1,077 souls, and peak population during the summer months was recorded as 3,967 in 2006. Research topics range from astrophysics, organisms and ecosystems, earth sciences, glaciology, and art. cccxii It is this unique relationship--this vital partnership-- that may be utilized to overcome the tragedy of the commons through a quasi-sovereign status.cccxiii By gaining sovereignty of Antarctica, States may act as stewards through the scientific community, and use the framework of existing international environmental law to protect krill in the Southern Ocean.cccxiv In the words of our new Secretary of State Hilary Rodham Clinton, we must do this work “mostly for this beautiful planet we currently share and the succeeding generations that should have the same opportunity to enjoy its bounty and its beauty.” cccxv

i

Stephen A. Seach, Conflicting Interests in Antarctica: People or Nature? Who Decides?, 5 TEMP. INT’L & COMP. L.J. 109, 109 (1991) (citations omitted). ii

The Antarctic Treaty, December 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71; the “Antarctic Treaty framework” can refer both to the Antarctic Treaty itself, or to the collection of treaties that have evolved since the Antarctic Treaty was ratified. This collection of treaties is also referred to as the “Antarctic Treaty System.” See e.g., William M. Welch, The Antarctic Treaty System: Is It Adequate to Regulate or Eliminate

36

28

the Environmental Exploitation of the Globe’s Last Wilderness?, 14 HOUS. J. INT’L L. 597, 600 (1992)(citations omitted); The treaties in the Antarctic Treaty System include: The Antarctic Treaty (1959), Agreed Measures for the Conservation of Antarctic Fauna and Flora (1964), Convention for the Conservation of Antarctic Seals (1972), Convention or the Conservation of Antarctic marine Living Resources (1980) (CCAMLR), Convention on the Regulation of Antarctic Mineral Resource Activities (1988) (CRAMA) never in force because Australia and France did not sign (considered legally dead), Protocol on Environmental Protection to the Antarctic Treaty (1991) (Madrid Protocol). Martin Lishexian Lee, A Case for World Government of the Antarctic, 9 GONZ. J. INT’L L. 73, 75 (2006). iii

euphausia superba; Food and Agriculture Organization of the United Nations, http://www.fao.org/fisheries, go to “Antarctic krill” under “search.” (last visited March 6, 2009).

iv

Philip Bender, The Precautionary Approach and Management of Antarctic Krill, 18 J. ENVTL. L. 229, 229 (2006) (citations omitted). v

http://www.ccamlr.org/pu/e/gen-intro.htm

vi

Food and Agriculture Organization of the United Nations [hereinafter FAO] available at http://www.fao.org/fisheries, go to “Antarctic krill” under “search.” (last visited March 6, 2009). vii

The Antarctic Treaty, supra note 2; signatories to the Antarctic Treaty are Argentina, Australia, Belgium, Brazil, Bulgaria, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, Korea (ROK), Netherlands, New Zealand, Norway, Peru, Poland, Russian Federation, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States, Uruguay (all Consultative Parties); Austria, Belarus, Canada, Columbia, Cuba, Czech Republic, Denmark, Estonia, Greece, Guatemala, Hungary, Korea (DPRK) Monaco, Papua New Guinea, Romania, Slovak Republic, Switzerland, Turkey, Venezuela (all Non-Consultative Parties), http://www.ats.aq/devAS/ats_parties.aspx?/lang=e (last checked April 11, 2009); “Consultative Party” means a Contracting Party that demonstrates its interest in Antarctica by conducting substantial research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition. Consultative Parties are entitled to participate in meeting, where Non-Consultative Parties are observers only. The Antarctic Treaty at art. IX(2); see e.g., http;//www.ats.aq/devAS/ats_parties.aspx?/lang=e. viii

Antarctic Treaty, supra note 2, at art. IV which freezes all claims to Antarctica.

ix

See David S. Ardia, Does the Emperor Have No Clothes? Enforcement of International Laws Protecting the Marine Environment, 19 MICH. J. INT’L L. 497, 509 (1998).

x

United Nations Convention on the Law of the Sea, opened for Dec. 10, 1982, 1833 U.N.T.S. 397, art. 116-119 (high seas fishing) [hereinafter 1982 LOS Convention, or the Convention].

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28

xi

Id. at art. 86 (which defines the “high seas” as being all parts of the seas that are not included in the exclusive economic zone, in the territorial sea, or in the internal waters of a State, or in the archipelagic waters of an archipelagic state).

xii

DAVID HUNTER, ET. AL, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 127 (2d ed. 2002), quoting H. Scott Gordon, The Economic Theory of Common Property Research: The Fishery 62 J. POLITICAL ECON. 124, 124 (1954), quoting ELINOR OSTROM, GOVERNING THE COMMONS 3 (1990) (where the global commons are public goods such as air and water, and public spaces, such as the high seas, which are shared by all but owned by no one). xiii

Garrett Hardin, The Tragedy of the Commons, 168 Science 1243, 1244 (1968); see also Marcos A. Orellana, The Law on Highly Migratory Fish Stocks: ITLOS Jurisprudence in Context, 34 GOLDEN GATE U. L. REV. 459, 465 (2004) (where the high seas are the global commons in which the community of nations has an interest and concern in its rational and peaceful use). xiv

Hunter, supra note 12, at 127, quoting H. Scott Gordon, The Economic Theory of Common Property Research: The Fishery 62 J. POLITICAL ECON. 124, 124 (1954), quoting ELINOR OSTROM, GOVERNING THE COMMONS 3 (1990). xv

E.g., Philip Bender, supra note 4, at 232 (citation omitted); See contra Jill Grob, Antarctica’s Frozen Territorial Claims: A Meltdown Proposal, 20 B.C. INT’L & COMP. L. REV. 461, 477-78 (2007) (where the author states that since claims have been made to Antarctica, Antarctica can therefore not be classified as a global commons, even though those claims are frozen). xvi

Bender, supra note 4, at 232.

xvii

“Consultative Party” means a signatory of the Antarctic Treaty that demonstrates its interest in Antarctica by conducting substantial research activity there, such as the establishment of a scientific station or the dispatch of a scientific expedition. Consultative Parties are entitled to participate in meetings, where Non-Consultative Parties are observers only. The Antarctic Treaty, supra note 2, at art. IX(2); Currently, there are twenty-eight Consultative Parties which include the twelve original claimants. Available at http;//www.ats.aq/devAS/ats_parties.aspx?/lang=e. xviii xix

See section III and IV, infra.

See section I and II, infra and supra.

xx

See section III, infra.

xxi

See section IV and V, infra.

xxii

William M. Welch, The Antarctic Treaty System: Is It Adequate to Regulate or Eliminate the Environmental Exploitation of the Globe’s Last Wilderness?, 14 HOUS. J. INT’L L. 597, 599 (1992) (quotations omitted; citations omitted).

38

28

xxiii

Id. at 603-604 (citations omitted); superimposed maps show Antarctica to be roughly the same size as the United States, image available at http://www.usap.gov/USAPgov/sciencesupport/GIS/images/AntarcticOverlay.gif.

xxiv

Id. at 603 (citation omitted).

xxv

Id. at 603-604 (citations omitted).

xxvi

FAO, supra note 6.

xxvii

Id.

xxviii xxix xxx

FAO, supra note 6; see also Bender, supra note 4, at 229 (citations omitted).

FAO, supra note 6. Id.

xxxi

Id.

xxxii

The Antarctic and Southern Ocean Coalition, Ecosystem Management of Antarctic Krill in South Atlantic: uncertainties and priorities, CCAMLR_XXV/BGxx at p. 3 (October 2006) available at www.krillcount.org. Go to “solutions.” (where current fishery for krill coincides almost entirely within the foraging ranges of land-based predators. In addition, fishing operations are highly concentrated in certain areas of the South Atlantic. Between 1993 and 2002, 66% of the krill catch in Subareas 48.1, 48.2 and 48.3 [regions within CCAMLR] was removed from only three of the 15 small scale management units [SSMUs] (Antarctic Peninsula Drake Passage West; South Orkney West; South Georgia East); another three adjacent SSMUs bring the proportion up to 90%. This is significant because all these areas contain large land-based, krill-dependent predator populations. By contrast, open ocean SSMUs have had considerably smaller levels of catches for the last decade and are operationally less desirable for fishing); See also www.fao.org/fishery/species/3393 (where E. superba occurs in a wide circumpolar belt between the Antarctic Continent and the Polar Front. Areas of highest abundance as determined with plankton nets and trawls are found within or next to the East Wind Drift, and in other northern sectors such as the Scotia Sea, Weddell Drift and off the Antarctic Peninsula and the Kerguelen-Gaussberg Ridge); Although beyond the scope of this paper, an additional approach to protecting krill might be to strengthen the enforcement by coastal states within the CCAMLR region. xxxiii

Bender, supra note 4, at 230 (citation omitted).

xxxiv xxxv

Id. Id.

xxxvi

Id. at 231 (2006) (citation omitted); catch limits set by the regional fishery management organization the “Convention on the Conservation of Marine Living Resources,” May 20, 1980, 33 U.S.T. 3476 [hereinafter CCAMLR] available at

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28

http://www.ccamlr.org/pu/e/gen-intro.htm (discussed in length infra in section III of this paper). xxxvii

Bender, supra note 4, at 231.

xxxviii

Id. at 233 (2006) (citation omitted); see also Virginia Gascón, Rodolfo Werner, CCAMLR and Antarctic Krill: Ecosystem Management Around the Great White Continent, 7 SUSTAINABLE DEV. L. & POL’Y 14, 16 (2006) (additional concerns with regards to krill sustainability are environmental factors and changes in the global ecosystem due to global warming, which could have a significant impact on the krill fishery).

xxxix xl

Seach, supra note 1, at 123 (citation omitted).

Id.

xli

Id.

xlii

Id. (where the destruction of the nearby bird colony could not be directly link to the spill, although it seemed that the spill was the likely cause). xliii

Id.

xliv xlv

Id. Id. at 124 (citation omitted).

xlvi

See Gascón, supra note 38, at 14; see also Arida, supra note 9, at 498-508 (citations omitted).

xlvii

FAO, supra note 6.

xlviii

Gascón, supra note 38, at 16 (citation omitted) (Krill harvesting peaked in the 1980’s as it was a highly subsidized fishery through the Soviet Union. However, after the breakup of the Soviet Union, krill harvesting decreased). xlix

l

Id. at 16.

FAO, supra note 6.

li

Id.

lii

Id.

liii

www.krillcount.org go to “issues” (where the latest generation of commercial vessel is literally a floating factory, employing sophisticated methods to land, process, and flashfreeze catch. Currently, one of these factory trawlers, the Saga Sea operated by the Norwegian multi-national corporation Aker ASA, has been outfitted with equipment that

40

28

enables it to continuously vacuum millions of krill from the ocean, harvesting as much as 120,000 tons in a single fishing season). liv lv

FAO, supra note 6.

Id.

lvi

Bender, supra note 4, at 231 (citation omitted).

lvii

Id.

lviii

Id. (also noted is the very recent application for a patent under a Chilean company for a product that combines krill oil and salmon oil which aids in the uptake of calcium to help prevent and cure osteoporosis).

lix

See The 1982 LOS Convention, supra note 10, at articles 116-119 (high seas fisheries).

lx

Hunter, supra note 12, at 379.

lxi

Id.

lxii

Id.; see also Vienna Convention on the Law of Treaties, art. 18, May 23, 1969, 1155 U.N.T.S. 331 (where a state must expressly agree to be bound by an agreement) [hereinafter Vienna Convention].

lxiii

CCAMLR, supra note 36, at art. XXII (where “each Contracting Party undertakes to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity contrary to the objective of the Convention.”); see also Vienna Convention, supra note 62, at art. 18 (where a state must expressly agree to be bound by an agreement). lxiv

Agreement for the Implementation of the Provisions of the United Nations Convention of the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Sept. 8, 1995, 34 ILM 1542 [hereinafter Fish Stocks]; See gen CCAMLR, supra note 36. lxv

The 1982 LOS Convention, supra note 10, at art. 309 (where “[n]o reservations or exceptions may be made to [the] Convention unless expressly permitted by other articles of [the] Convention). lxvi

Id.

lxvii

Protocol on Environmental Protection to the Antarctic Treaty, special Consultative meeting, October 4, 1991, 30 I.L.M.1455 (1991)[hereinafter Madrid Protocol].

lxviii

Hunter, supra note 12, at 371.

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28

lxix

See Trial Smelter Case (United States v. Canada), 3 U.N. Rep. Int’l Arb. Awards (1941).

lxx

Hunter, supra note 12, at 371.

lxxi

Grob, supra note 15, at 471 (citations omitted).

lxxii

Hunter, supra note 12, at 310.

lxxiii

Id. at 311.

lxxiv

Lee, supra note 2, at 75 (2006). (While this paper will not discuss all relevant treaties regarding the Antarctic, the following treaties are currently in force: Antarctic Treaty 1959, Agreed Measures for the Conservation of Antarctic Fauna and Flora 1964, Convention for the Conservation of Antarctic Seals 1972, Convention or the Conservation of Antarctic marine Living Resources 1980 (CCAMLR), Protocol on Environmental Protection to the Antarctic Treaty 1991 (Madrid Protocol), Convention on the Regulation of Antarctic Mineral Resource Activities 1998 (CRAMA) never in force because Australia and France did not sign. Considered legally dead). lxxv

Fisheries Jurisdiction Case (United Kingdom v. Iceland) (Merits) I.C.J. 3 (July 25, 1974).

lxxvi

Id.; see also Hunter, supra note 12, at 681.

lxxvii

Hunter, supra note 12, at 681.

lxxviii

Id.

lxxix

Available at: http://www.kwintessential.co.uk/article/Iceland/Cod-War-inIceland/527 lxxx

Hunter, supra note 12, at 681.

lxxxi

Id.

lxxxii

(United Kingdom v. Iceland), supra note 75, at merits.

lxxxiii

Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland) (Merits) 2 (July 25, 1974).

lxxxiv lxxxv

Id. at para. 1-19.

Id. at para. 41-70.

lxxxvi

The Antarctic Treaty, supra note 2, at art. IV (where sovereignty to Antarctica is frozen under art. IV); see also supra “cod wars” and Iceland v. Germany.

42

28

lxxxvii

The Antarctic Treaty, supra note 2, at art. IV and art. VI (where the provisions of the Antarctic Treaty shall apply to the area south of 60 latitude, but nothing in the treaty shall prejudice or in ay way affect the rights, or the exercise of the rights of any Sate under international law with regard to the high seas within that area); see also The 1982 LOS Convention, supra note 10, at art. 116-119 (where the freedom of fishing upon the high seas is defined).

lxxxviii

The 1982 LOS Convention, supra note 10, at art. 55-59; the ratification of the 1982 LOS Convention was a lengthy process beginning with the first conference in 1958. When the Convention was finally ratified in 1982, it was the third U.N. Conference on the Law of the Sea, and it took nine years of difficult negotiations. Hunter, supra note 12, at 658; The 1982 LOS Convention was held to be the “constitution of the oceans.” Erik Franckx, The 200-Mile Limit: Between Creeping Jurisdiction and Creeping Common Heritage?, 39 GEO. WASH. INT’L L. REV. 467, 481 (2007) (quoting Tommy Koh, President of the Third U.N. Conference on the Sea); unlike most international agreements, by the time the 1982 LOS Convention was signed, its provisions were already considered to be customary law, which means that most States already considered the provisions under the Convention to be accepted and legally binding international practices. Bender, supra note 4, at 310.

lxxxix

The 1982 LOS Convention, supra note 10, at art. 3-5, 57 (where territorial sea is normally measured from the low-water mark [the reach of the low tide] along the coast and extends out 12 miles from that point, and the exclusive economic zone [EEZ] shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial seas is measured). xc

Id.

xci

Id. at art. 56 (where within the EEZ, coastal states exercise and have a duty to explore, conserve, and manage the natural resources, both living and non-living, within its EEZ). xcii

see supra section III(B).

xciii

The 1982 LOS Convention, supra note 10, at art. 86 (where the high seas apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial waters or in the internal waters of a State, or in the archipelagic waters of an archipelagic State).

xciv

Hunter, supra note 12, at 657 (where the notion of the high seas is a key concept of ocean governance borrowed from Roman times, which preserves a State’s freedom to travel upon and extract resources from the high seas without restriction).

xcv

The Antarctic Treaty, supra note 2, at art. IV (where sovereignty to Antarctica is frozen under art. IV) and art. VI (where the provisions of the Antarctic Treaty shall apply to the area south of 60 latitude, but nothing in the treaty shall prejudice or in any way affect the rights, or the exercise of the rights of any State under international law with regards to the high seas within that area); see also the 1982 LOS Convention, supra note 10, at art. 116-119.

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28

xcvi

The 1982 LOS Convention, supra note 10, at art. 116.

xcvii

E.g., Ardia, supra note 9, at 537 (citation omitted).

xcviii

The 1982 LOS Convention, supra note 10, at articles 116-119.

xcix

Id. at art. 117.

c

FAO, supra note 6; see generally Bender, supra note 4, at 229.

ci

The 1982 LOS Convention, supra note 10, at art. 118.

cii

Id. at art. 118.

ciii

Id. at art. 119.

civ

Id. at art. 119.

cv

Orellana, supra note 13, at 461.

cvi

Hunter, supra note 12, at 658.

cvii

See Fish Stocks, supra note 61, at preamble.

cviii

Id.

cix

Id. at art. 8(4) (which states “only those States which are members of such an organization or participants in such an organization, or which agree to apply the conservation and management measures established by such organization or arrangement shall have access to the fishery resourced to which those measures apply.” cx

The 1982 LOS Convention, supra note 10, at art. 116-119.

cxi

Vienna Convention, supra note 62, at art. 12 where “[t]he consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation.

cxii

Fish Stocks, supra note 64, at art. 8(4).

cxiii

Franckx, supra note 88, at 495 (where the binding of third parties or States not a Party to the treaty are bound by the treaty nevertheless. This unilateral extension of jurisdiction into the global commons of the high seas is sometimes called “creeping jurisdiction”).

cxiv

CCAMLR, supra note 36.

44

28

cxv

Id. at art. II (1).

cxvi

Welch, supra note 22, at 663 (where the Antarctic Convergence (or Polar Front), is formed where cold Antarctic waters meet warmer waters to the North. The Antarctic Convergence acts as a biological barrier, making the Southern Ocean a closed ecosystem for krill).

cxvii

Orellana, supra note 13, at 486 (citation omitted).

cxviii

Gascon, supra note 38, at 15 (where the ecosystem approach in CCAMLR, supra note 36, at art. II, delineates the need to maintain the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources, and to restore depleted populations) (citation omitted). cxix

David S. Bederman, Theory on Ice: Antarctica in International Law and Relations, 39 VA. J. INT’L L. 467, AT 485 (1999) citing James N. Barnes, THE EMERGING CONVENTION ON THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES: AN ATTEMPT TO MEET THE NEW REALITIES OF RESOURCE EXPLOITATION IN THE SOUTHERN OCEAN, IN THE NEW NATIONALISM AND THE USE OF COMMON SPACES 239 (JONATHAN I. CHARNEY ED., 1982). cxx

CCAMLR, supra note 36, at art. II (3)(c).

cxxi

see e.g., Arida, supra note 9, at 531.

cxxii

Bederman, supra note 119, at 485.

cxxiii

CCAMLR, supra note 36, at art. XII (1).

cxxiv

Id. at art. XII (1).

cxxv

Id. at art. IX (6)(d).

cxxvi

Id.

cxxvii

Id. at art. XXI (1).

cxxviii

Id. at art. XXI (2).

cxxix cxxx

Gascón, supra note 38, at 16 (citation omitted). Id.

cxxxi

Id.

cxxxii

See The Antarctic and Southern Ocean Coalition [hereinafter ASOC], Improving Monitoring and Control of the Krill Fishery, at 4-5, 20 October, 2006, CCAMLRXXV/BG. available at: http://www.asoc.org go to “information” then “publications” then

45

28

“ASOC papers submitted at official meetings” then “ASOC papers submitted at CCAMLR.”(where this paper is presented for consideration by CCAMLR and may contain unpublished data, analyses, and/or conclusions subject to change. Data contained in this paper should not be cited or used for purposes other than the work of the CCAMLR Commission, Scientific Committee, or their subsidiary bodies without the permission of the originators/owners of the data). cxxxiii cxxxiv

Id. at 4-5; see also Gascón, supra note 38, at 16-17 (citation omitted).

Gascón, supra note 38, at 16 (citation omitted).

cxxxv

CCAMLR, Commission meeting SC-CCAMLR-XXVII/BG/51, at 4.30 (October 27-November 7, 2008), available at http://www.ccamlr.org. cxxxvi

Id. at 4.12 (citing SC-CCAMLR XXVII, paragraphs 3.32 and 3.33 and annex 4, paragraph 2.90). cxxxvii

Id. at 4.16, 4.17, 4.18.

cxxxviii

Id. at 4.19, 4.20, 4.21.

cxxxix cxl

Id. at 4.21.

See Id. at 4.22; see Gascon, supra note 38, at 15.

cxli

Id.

cxlii

Id. at 4.22.

cxliii

Id. at 4.22--4.26.

cxliv

CCAMLR, supra note 36, at art. XII (1).

cxlv

See Bender, supra note 4, at 232.

cxlvi

Id.

cxlvii

See e.g., Gascón, supra note 38, at 16 (citations omitted); see also Bender, supra note 4, at 232 (citations omitted).

cxlviii

www.krillcount.org go to “issues” (where the latest generation of commercial vessel is literally a floating factory, employing sophisticated methods to land, process, and flash-freeze catch. Currently, one of these factory trawlers, the Saga Sea operated by the Norwegian multi-national corporation Aker ASA, has been outfitted with equipment that enables it to continuously vacuum millions of krill from the ocean, harvesting as much as 120,000 tons in a single fishing season).

cxlix

FAO, supra note 6.

46

28

cl

Gascon, supra note 38, at 16 (citation omitted).

cli

See Bederman, supra note 119, at 485.

clii

A common term of art which may be misplaced here as it is technically not illegal to fish upon the high seas. (see argument supra section III(C)).

cliii

See generally CCAMLR, supra note 60, at conservation measure 10-07 (2008).

cliv

BLACK’S LAW DICTIONARY 673 (8th ed. 2004) (where force majeure includes both acts of nature like floods and hurricanes and acts of people like riots). clv

CCAMLR, supra note 36, at conservation measure 10-07 (2008): Contracting Parties shall take all necessary measures, subject to and in accordance with their applicable laws and regulations and international law, in order that: (i) the issuance of a license to vessels on the NCP-IUU Vessel List to fish in waters under their fisheries jurisdiction is prohibited; (ii) fishing vessels, support vessels, refuel vessels, mother-ships and cargo vessels flying their flag do not in any way assist vessels on the NCP-IUU Vessel List by participating in any transhipment or joint fishing operations, supporting or resupplying such vessels; (iii) vessels on the NCP-IUU Vessel List should be denied access to ports unless for the purpose of enforcement action or for reasons of force majeure or for rendering assistance to vessels, or persons on those vessels, in danger or distress. Vessels allowed entry to port are to be inspected in accordance with relevant conservation measures; (iv) where port access is granted to such vessels: (a) documentation and other information, including DCDs where relevant are examined, with a view to verifying the area in which the catch was taken; and where the origin cannot be adequately verified, the catch is detained or any landing or transhipment of the catch is refused; and (b) where possible i. in the event catch is found to be taken in contravention of CCAMLR conservation measures, catch is confiscated; ii. all support to such vessels, including non-emergency refuelling, resupplying and repairs is prohibited; (v) the chartering of vessels on the NCP-IUU Vessel List is prohibited; (vi) granting of their flag to vessels on the NCP-IUU Vessel List is refused; (vii) imports, exports and re-exports of Dissostichus spp. from vessels on the NCP-IUU Vessel List are prohibited; (viii) ‘Export or Re-export Government Authority Validation’ is not certified when the shipment (of Dissostichus spp.) is declared to have been caught by any vessel on the NCP-IUU Vessel List; (ix) importers, transporters and other sectors concerned are encouraged to refrain from dealing with and from transhipping of fish caught by vessels on the NCP-IUU Vessel List;

47

28

clvi

Joseph Elliott Roeschke, Eco-terrorism and Piracy on the High Seas: Japanese Whaling and the Rights of Private Groups to Enforce International Conservation Law in Neutral Waters, 20 VILL. ENVTL. L.J. 99, 106-107 (2009). (citations omitted) clvii

Id.

clviii clix

Id.

Id.

clx

Id.; see also http://www.seashepherd.org/news/media (discussing self-proclaimed history of sinking whaling boats).

clxi

Roeschke, supra note 156, at 108 (citations omitted) (when asked on a radio show about Sea Shepherd’s tactics).

clxii

Id. at 116 (citaiton omitted).

clxiii

See e.g., Gascon, supra note 38, at 16; Jessica k. Ferrell, Controlling Flags of Convenience: One Measure To Stop Overfishing of Collapsing Fish Stocks, 35 ENVTL. L. 323, 358 (2005) (citation omitted). clxiv clxv

Id.

Id.

clxvi

Id.

clxvii

See Gascon, supra note 38, at 14 (citation omitted).

clxviii

Bender, supra note 4, at 232 (citation omitted).

clxix

Ferrell, supra note 163, at 379 (citation omitted).

clxx

see supra section III.

clxxi

see supra section III.

clxxii

See generally Vienna Convention, supra note 62, at art. 12 (which states, “The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation).

clxxiii clxxiv

Id. See The 1982 LOS Convention, supra note 10, at art. 116-119.

48

28

clxxv

Id. at art. 118.

clxxvi

See Id. at art. 116-119.

clxxvii

Id. at art. 117.

clxxviii

e.g., Case Concerning Fisheries Jurisdiction (Spain v. Canada), Advisory Opinion, 1995 I.C.J. at para. 13-22, available at http://www.icj-cij.org. clxxix

Id. at para. 13-22.

clxxx

See generally North Atlantic Fisheries Organization, available at www.nafo.int/.

clxxxi

(Spain v. Canada), supra note 178, at para. 13-22.

clxxxii

Id. at 57 (Vice president Weeramantry, dissenting).

clxxxiii

See generally Fish Stocks, supra note 64, at preamble.

clxxxiv

Id. at art. 8(4) (where “[o]nly those States which are members of such an organization or participants in such an arrangement, or which agree to apply the conservation and management measures established by such organization or arrangement, shall have access to the fishery resources to which those measures apply.”(emphasis added).

clxxxv

See supra section III.

clxxxvi

Fish Stocks, supra note 64, at art. 33(1).

clxxxvii

Id. at art. 30(1-5).

clxxxviii clxxxix

Id. at art. 33(2); also see generally Fish Stocks preamble.

Arida, supra note 9, at 507 (citations omitted).

cxc

See generally Vienna Convention, supra note 62, at art. 12.

cxci

CCAMLR, supra note 36, at preamble;

cxcii

Arida supra note 9, at 529 (citations omitted).

cxciii

CCAMLR, supra note 36, at art. XII(1).

cxciv

Id. at art. 6(c).

cxcv

Id. at art. 21.

49

28

cxcvi

See Antarctic Treaty, supra note 2, preamble; CCAMLR supra note 36, preamble; the Madrid Protocol, supra note 67, preamble. cxcvii

Arida, supra note 44, at 508-509.

cxcviii

Bender, supra note 4, at 240 (where the author states that “[n]o matter whether a complete ban is adopted or whether there are merely precautionary catch limits, krill still needs an effective legal regime to manage them.”). See also “Green Peace in Antarctica” available at http://archive.freenpeace.org/comms/climate/polartour/pt01.html. cxcix

Welch, supra note 22, at 647; ironically in addition to some in the international environmental community such as Greenpeace, some consultative parties to the Antarctic treaty are in favor of a world park regime, as this would render territorial claims to Antarctica moot—a definite advantage to a country that was not one of the original claimants. Grob, supra note 15, at 481-482.

cc

Welch, supra note 22, at FN 317, citing Larry B. Stammer, Bush Alters Stand, OKs Antarctica Mining Ban, L.A. Times, July 4, 1991, at A26, A27 (quoting Lee Kimball of the World Resources Institute).

cci

For more information on the creation of world parks, see eg., Neal A. Kemkar, Environmental Peacemaking: Ending Conflict Between India and Pakistan on the Siachen Glacier through the Creation of a Transboudary Peace Park, 25 STEVVLJ 67 (2006). ccii

Available at http://greenpeace.org/international/about/history/how-we-savedantarctica. (In 1986 Greenpeace established a World Park Base in Antarctica which Greenpeace continuously occupied with teams of four people until the end of 1991. The base’s primary purpose was to highlight environmental violations in Antarctica, and during this time, Greenpeace actively lobbied for environmental protections of Antarctica. At the peak of their efforts, Greenpeace devoted more than half of their entire budget towards the cause. Their efforts were considered a success, because in 1991, all voting members of the Antarctic Treaty agreed to adopt a new the environmental protocol for the Antarctic which included a 50 year minimum prohibition on all mineral exploitation [Madrid Protocol, supra note 67, at art. 25]); See also http://archive.greenpeace.org.comms/climate/polartour/pt01.html cciii

C.f., Lee, supra note 2, at 94 (the author proposes a world government of Antarctica where states are required to relinquish sovereignty).

cciv ccv

See Grob, supra note 15, at 481 (citation omitted).

Id.

ccvi

Antarctic Treaty, supra note 2, at preamble.

ccvii

Madrid Protocol, supra note 67, at art. II.

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28

ccviii

Grob, supra note 15, at 481; see also Andrew Neuman, Closing the Frozen Treasure Chest: Antarctica’s New Environmental Protocol, 3 FORDHAM ENVTL. L. REP. 57, 68 (1991). ccix

Neuman, supra note 208, at 68 (citation omitted).

ccx

Welch, supra note 22, at 626 (citation omitted).

ccxi

Grob, supra note 15, at 482 (where recommendations issued by the Consultative Parties in 1977 and 1981 emphasized the continuance of article IV of the Antarctic Treaty which handles the issues of sovereignty) (citations omitted); see also Search, supra note 1, at 141 (citations omitted) (where almost every Consultative Party abstained from voting on the U.N. resolution “Question of Antarctica” which condemned the limited composition of the Antarctic Treaty regime).

ccxii

Kemkar, supra note 197, at 102 (citations omitted, quotations omitted).

ccxiii

The 1982 LOS Convention, supra note 10, at art. 55-62.

ccxiv ccxv

Id. Id.

ccxvi

See Welch, supra note 22, at 599 (citations omitted).

ccxvii

Id. at 600 (citation omitted).

ccxviii

Id. at 611 (citation omitted).

ccxix

Id.

ccxx

http://www.lib.utexas.edu/maps/polar.html (where the Antarctic maps used for the discussion are produced by the U.S. Central Intelligence agency); see infra FN 266 for a discussion on the challenged claims regarding South Georgia Island.

ccxxi

Welch, supra note 22, at 600 (citation omitted).

ccxxii

Welch, supra note 22, at 612 (citation omitted).

ccxxiii

Id. at 613 (citations omitted).

ccxxiv ccxxv

Id. Id.

ccxxvi

Grob, supra note 15, at 464 (citation omitted).

ccxxvii

Antarctic Treaty, supra note 2, preamble.

51

28

ccxxviii ccxxix

See Welch, supra note 22, at 613 (citation omitted).

Grob, supra note 15, at 464 (citation omitted).

ccxxx

Welch, supra note 22, at 613 (where “administrative duty can include such matters as delivering mail or a government official performing a marriage ceremony. “Sectors” relate to a method where the boundaries of a country—Argentina, for instance—are extended though Antarctica to the mid-point. The resulting shape is a wedge-shaped piece, and Antarctica is divided up like pieces of a pie. Some of boundaries of these sectors overlap with other countries’ claims).

ccxxxi

Id.

ccxxxii

Id.

ccxxxiii

Grob, supra note 15, at 464 (citation omitted).

ccxxxiv ccxxxv

Id. See generally Welch, supra note 22, at 613.

ccxxxvi

The Antarctic Treaty, supra note 2, at preamble; since its ratification, changing circumstances and redefined goals of the Consultative Parties has led to a series of subsequent agreements under the ambit of the Antarctic Treaty, which has shown an increasing concern regarding environmental degradation of the Antarctic. This new regime is referred to as the “Antarctic Treaty System” (“ATS”) and it governs the application of measures under the Antarctic treaty and associated separate international agreements in force. Currently, there are five separate instruments in force, and one is legally dead (In force: Antarctic Treaty 1959, Agreed Measures for the Conservation of Antarctic Fauna and Flora 1964, Convention for the Conservation of Antarctic Seals 1972, Convention or the Conservation of Antarctic marine Living Resources 1980 (CCAMLR), Protocol on Environmental Protection to the Antarctic Treaty 1991 (Madrid Protocol), Convention on the Regulation of Antarctic Mineral Resource Activities 1998 (CRAMA) never in force because Australia and France did not sign. Considered legally dead). Martin Lishexian Lee, supra note 2, at 75.

ccxxxvii

The Antarctic Treaty, supra note 2, at art. 1 (no military), art. V (no nuclear explosions). ccxxxviii

Id. at preamble (“acknowledging the substantial contributions to scientific knowledge resulting from international cooperation in scientific investigation in Antarctica; Convinced that the establishment of a firm foundation for the continuation and development of such cooperation on the basis of freedom of scientific investigation in Antarctica as applied during the International Geophysical Year accords with the interests of science and the progress of all mankind”); the “International Geophysical Year was a worldwide scientific endeavor involving as many as 40,000 scientists from eleven nations. The scientists were able to work unencumbered by their respective nation’s political differences and ambitions and for the purposes of the meeting overlook

52

28

territorial sector boundaries. The results of their work ended in the establishment of almost forty scientific research bases located throughout the continent, and gave real encouragement to interested parties to begin to discuss a proposal for negotiating the Antarctic Treaty. Welch, supra note 22, at 616-617. ccxxxix

Bederman, supra note 119, at 477 (citation omitted); Although it is beyond the scope of this paper to explore the complex history of Antarctic Treaty creation and ratification, the subject is discussed at length at Christopher C. Joyner & Ethel R. Theis, EAGLE OVER ICE: THE U.S. IN THE ANTARCTIC (Hanover and London: University Press of New England 1997); Donald R. Rothwell, THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW (CAMBRIDGE: CAMBRIDGE UNIVERSITY PRESS 1996); Olav Schram Stokke & Davor Vidas, ed,. GOVERNING THE ANTARCTIC: THE EFFECTIVENESS AND LEGITIMACY OF THE ANTARCTIC TREATY SYSTEM. EDITED BY CAMBRIDGE: CAMBRIDGE UNIVERSITY PRESS (1996). ccxl

Id. at 478 (where U.S. assertion of title in the Antarctic was found to be disadvantageous for a number of reasons including the issue that the unclaimed sector was undesirable geographically and concerns that assertion of title would accentuate rivalries already problematic in the region). ccxli

Id. at 479.

ccxlii

Id. at 471; The Antarctic Treaty, supra note 2, at art. IV (where “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 an Contracting Party of any basis of claim to territorial sovereignty in Antarctica which is may have whether as a result of its activities or those of its national in Antarctica, or otherwise; c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s rights of claim or basis of claim to territorial sovereignty in Antarctica.” ccxliii

Welch, supra note 22, at 614 (citation omitted).

ccxliv

Id. at 614-615 (citation omitted).

ccxlv

Bederman, supra note 119, at 471 (citation omitted).

ccxlvi

Grob, supra note 15, at 471 (citation omitted).

ccxlvii

See G.A. Res. 45/78, Preamble, U.N. Doc. A/RES/45/78 (Dec. 12, 1990).

ccxlviii

Jill Grob, supra note 15, at 471 (citing Jonathan I. Charney where Charney describes describing the Treaty as a quid pro quo with claimant-states agreeing to suspend claims for the benefit of a cooperative agreement) (citation omitted).

ccxlix

Id. at 471 (citations omitted).

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28

ccl

Antarctic Treaty, supra note 2, at art. IX(2).

ccli

Jill Grob, supra note 15, at 471, (citations omitted); The Antarctic Treaty, supra note 2, at art. XII, (which states that “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 meetings provided for under Article IX. Any such modification or amendment shall enter into force when the depository Government has received notice from all such Contracting parties that they have ratified it.”); Resource extraction in Antarctica would very likely result in damage to the environment in a number of ways. Even the most routine discharge of oil or particulant matter from mining or oil extraction could have far-reaching environmental impacts. A sustained release of particulate matter from mining, for instance, could result in changes in snowfall patterns, radiations levels, and the rate at which the ice cap melts. Debris from mining or accidental spills from oil exploration could dramatically impact the amount sunlight absorbed into the icecap depending upon the degree of coverage and the difficulty in its removal. This would lead to an overall increase in temperature, which would in turn accelerate the rate of melting of the icecaps, a potentially disastrous situation for all. Lee, supra note 2, at 75.

cclii

Brazil, Bulgaria, China, Ecuador, Finland, Germany, India, Italy, Korea (ROK), Netherlands, Peru, Poland, Spain, Sweden, Ukraine, Uraguay. www.ats.aq. ccliii

Austria, Belarus, Canada, Columbia, Cuba, Czech Republic, Denmark, Estonia, Greece, Guatemala, Hungary, Korea (KPRK), Monaco, Papua new Guinea, Romania, Slovak Republic, Switzerland, Turkey, Venezuela. www.ats.aq.

ccliv

Antarctic treaty, supra note 2, at art. IX(2).

cclv

E.g., Lee, supra note 2, at 93 (citation omitted).

cclvi

See Grob, supra note 15, at 464 (citation omitted).

cclvii

See http://scar.org/treaty/signatories.html (where “scar” [scientific committee on Antarctic research] shows that all of the original signatories to the Antarctic treaty also have consultative Party status). cclviii

E.g., Lee, supra note 2, at 93 (citation omitted).

cclix

See generally the Antarctica Treaty, supra note 2, preamble; the Non-Claimant states are the Belgium, Japan, South Africa, the former Soviet Union, and the United States. See also Welch, supra note 22, at 614.

cclx

The Antarctic Treaty, supra note 2, at art. VII; See also http://scar.org/treaty/signatories.html (page last saved 21st January, 2008; last viewed 13th February 2009). cclxi

E.g., Lee, supra note 2, at 93 (citation omitted).

cclxii

Http://www.ats.aq

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28

cclxiii

Antarctic Treaty, supra note 2, at art. IX(2).

cclxiv

Currently, scientific research stations on Antarctic represent twenty-eight countries. http://ats.aq. Just the United States’ Antarctic program alone lists seventy separate science programs for 2008-2009. www.usap.gov; Many of the programs involve collaboration between countries (for instance, a project named LARISSA is a National Science Foundation funded initiative that will bring an international, interdisciplinary team together to address a significant regional problem with global change implications, and the abrupt environmental change in Antarctica's Larsen Ice Shelf System. The project currently has Belgium-Ghent University and Argentina-Argentine Antarctic Institute as “funded international partners”) www.hamilton.edu/news/exp/Larissa/index.html.

cclxv

See supra FN 7 where the current Consultative Parties are Argentina, Australia, Belgium, Brazil, Bulgaria, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, Korea (ROK), Netherlands, New Zealand, Norway, Peru, Poland, Russian Federation, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States, Uruguay. cclxvi

Interview with Jon M. Van Dyke, Scholar and Law Professor, William S. Richardson School of Law, University of Hawaii at Manoa, in Honolulu, Haw. (April 8, 2009). cclxvii

See CCAMLR, supra note 36, preamble.

cclxviii

See supra section III(C).

cclxix

The 1982 LOS Convention, supra note 10, at art. 57.

cclxx

Id. at art. 61 (where the coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. . . .). cclxxi

In addition to the drawbacks outlined infra, another issue to consider with regards to granting sovereignty in Antarctica are the coastal States that exist within the CCAMLR area that already have sovereignty or a disputed sovereignty. For instance, in 1985 South Georgia and the South Sandwich Islands became a distinct U.K. Overseas Territory with a Commissioner as head of the Government. They had previously been part of the Falkland Islands Dependencies and both are found within the CCAMLR region. http://www.sgisland.gs/index.php/(g)overview?usekin=gov; Argentina also claims the islands, and occupied them for a brief period in 1982. http://www.cia.gov/library/publications/the-world-factbook/geos/sx.html; Contested issues of sovereignty, and the degree to which these coastal states successfully comply with CCAMLR are beyond the scope of this paper.

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cclxxii

See Protocol on Environmental Protection to the Antarctic Treaty, supra note 67, at preamble.

cclxxiii

Grob, supra note 15, at 462 (citation omitted); although beyond the scope of this paper, several agreements have addressed the issue of mineral exploration in Antarctica. The main issues are summarized below: The Convention on the Regulation of Antarctic Mineral Resources outlined a plan to protect the Antarctic environment by regulating mining. 27 I.L.M. 868 (1988) [hereinafter CRAMA]. After six years of meetings and discussions, CRAMA was adopted, but it was never ratified. Grob, supra note 15, at 470 (citation omitted). Troubled by concerns that CRAMA would not sufficiently protect the environment, Australia and France pulled back their support, and since consensus among treaty members is required, France and Australia’s actions prevented CRAMA from becoming part of the Antarctic treaty system. Id. Three years later, the international community took another approach to address environmental concerns and mineral resources in Antarctica. Id. This proposal, the Protocol on Environmental Protection to the Antarctic Treaty, provides a strong environmental ethic and prohibits mining outright. Madrid Protocol, supra note 67, at 7; The Madrid Protocol was signed in Madrid on October 4, 1991 and entered into force in 1998. It designates Antarctica as a “natural reserve, devoted to peace and science” Id. at art. 2. Article 3 of the Environment Protocol sets forth basic principles applicable to human activities in Antarctica and Article 7 prohibits all activities relating to Antarctic mineral resources, except for scientific research. Until 2048 the Protocol can only be modified by unanimous agreement of all Consultative Parties to the Antarctic Treaty. In addition, the prohibition on mineral resource activities cannot be removed unless a binding legal regime on Antarctic mineral resource activities is in force. Id at Art. 25. available at http://www.ats.aq. The Madrid Protocol also does not allow reservations, which means that Parties may not opt out of any part of the agreement. Id. at art. 24 (reservations not permitted). The ban on mining, however, is not permanent. Id. at art. 25. The current consultative parties can amend the protocol fifty years after January 14, 1998. Grob, supra note 15, at 470 (citation omitted). After the fifty-year period has expired, (beginning January 14, 2048) the “walkout clause” kicks in. Lee, supra note 2, at 80 (citation omitted). Under the “walkout clause,” if no modification or amendment to the prohibition on mining has entered into force within three years, any Party may withdraw from the protocol. Hunter, supra note 12, at 306 (where a treaty has not “entered into force” until the State has ratified it Nationally, and satisfied any other conditions that must be met until the treaty is officially enacted); see also Martin Lishexian Lee, A Case for World Government of the Antarctic, 9 GONZ. J INT’L L. 73, 80 (2006); This provision makes it easy for a treaty member to unilaterally withdraw from the Protocol after 2048 and commence mining operations in Antarctica without regulation. Id. Scholars have referred to this measure as “the noose around the neck of the globe’s last wilderness.” Id (quoting William M. Welch, The Antarctic Treaty System: Is it Adequate to Regulate or Eliminate the Environmental Exploitation of the Globe’s Last Wilderness?, 14 HOUS. J. INT’L L. 597, 643 (1992). In addition, under both Antarctic treaty system and the protocol, the prohibition on mining or any other activity in Antarctic applies only to the thirty-nine signatory countries. Welch, supra note 22, at 655; signatories are Argentina, Austrailia, Belgium, Brazil, Bulgaria, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan,

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Korea (ROK), Netherlands, New Zealand, Norway, Peru, Poland, Russian Federtation, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States, Uraguay (all Consultative Parties); Belarus, Canada, Czech Republic, Denmark, Estonia, Greece, Romania. (Non-Consultative Parties). Madrid Protocol, supra note 67, preamble. With no formal restraint mechanism or enforcement protocol in place, non-members are free to establish themselves in Antarctica in any manner they wish, with only the extreme weather and lack of technological ability serving as a barrier. Id. And for those States that are Contracting Parties, the shelved sovereignty question over Antarctica may create circumstances where no one enforces the regime as no one is in charge. Lee, supra note 2, at 80 (citation omitted). cclxxiv

See supra FN 53.

cclxxv

Seach, supra note 1, at 113 (where both Non-Consultative Parties and States not Party to the Antarctic Treaty still have substantial interest in Antarctica. Important nonparties include Malaysia, Antigua and Barbuda, Nigeria, and several other developing nations) (citations omitted).

cclxxvi

See generally Madrid Protocol, supra note 67, at preamble.

cclxxvii

C.f., CCAMLR, supra note 36, at art. IV.(2)(b) (where “nothing in [CCAMLR]. . .shall prejudice any right or claim . . .to exercise coastal state jurisdiction under international law within the area to which [CCAMLR] applies).

cclxxviii

See Seach, supra note 1, at 113.

cclxxix

Arida, supra note 9, at 566; Ferell, supra note 163, at 340 (citations omitted);

cclxxx

Arida, supra note 9, at 507 (citation omitted).

cclxxxi

Id. at 507 (citation omitted).

cclxxxii

Adrienne J. Oppenheim, The Plight of the Patagonian Toothfish: Lessons From The Volga Case, 30 BROOK. J. INT’L L. 293, 299 (2004) (citation omitted; quotation omitted). cclxxxiii

E.g., Bender, supra note 4, at 230 (citation omitted).

cclxxxiv

E.g., Gascon, supra note 38, at 15; Bender, supra note 4, at 230 (citation omitted); Nueman, supra note 209, at 67 (citation omitted). cclxxxv

Arida, supra note 9, at 508, quoting Garrett Hardin, The Tragedy of the Commons, 168 Science 1243, 1244 (1968) where “Freedom in a commons brings ruin to all.”

cclxxxvi

See Welch, supra note 22, at 600; see also supra section III.

cclxxxvii

Welch, supra note 22, at 655 (citation omitted).

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cclxxxviii

ACTM meeting held April 6-17, 2009 in Baltimore, Maryland. http://ats.aq, go to “next meeting” then “information” then “publications” then “ASOC papers submitted at official meetings” then “ASOC papers submitted at CCAMLR” then the “Address on the Joint Meeting of the Antarctic Consultative Treaty Meeting and the Artic Counsel, 50th Anniversary of the Antarctic Treaty.”

cclxxxix

ccxc

Id.

Id.

ccxci

Id.

ccxcii

See contra FN 200.

ccxciii

Id.

ccxciv

ccxcv

Id. Id.

ccxcvi

Arida, supra note 9, at 509.

ccxcvii

Arida, supra note 9, at 509.

ccxcviii

Id.

ccxcix

Environmental Defense Fund v. Massey, 986 F2d 528 (D.C. 1993).

ccc

Bederman, supra note 119, at 498.

ccci

Bederman, supra note 119, at 498.

cccii

Environmental Defense Fund v. Massey, supra note 299.

ccciii

Id.

ccciv

cccv

Id. Id.

cccvi

ACTM, supra note 288, at “next meeting.”

cccvii

Neuman, supra note 307, at 67.

cccviii

Id.

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cccix

Id.

cccx

See Antarctic Treaty, supra note 2, preamble; CCAMLR supra note 60, preamble; the Madrid Protocol, supra note 64, preamble.

cccxi

http://comnap.aq go to “Antarctic Operations.”

cccxii

http://usap.gov/sciencesupport

cccxiii

Id; see also supra section V(C).

cccxiv

See The 1982 LOS Convention, supra note 10, at art. 55-62.

cccxv

ACTM, supra note 288, at “next meeting.”

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