Evidence for a Cooperative Agreement: the Antarctic Regime

The Antarctic Treaty, which arose from the success of the 1957-1958 Geophysical Year, is unique in that it is a joint governance regime for the only continent on the planet with its own continental shelf but no indigenous human population. Indeed, about ninety-five percent of Antarctica is covered by a freshwater ice sheet that is, on average, more than a mile thick: the continent has no native human inhabitants.  Antarctica has the highest average elevation of any continent; it is also the coldest, and one of the most environmentally fragile, regions on the planet.  Ringed by the ferocious Southern Ocean, mean sustained winter winds in the Antarctic often reach over sixty miles an hour.  In sum, the wild and unpredictable weather of the Antarctic makes the Arctic climate appears relatively mild—which makes the Arctic relatively more appealing to shipping companies.

On a legal basis, the Arctic and the Antarctic are treated as fundamentally different entities by the international legal regime. Unlike the Antarctic, the Arctic has been inhabited for thousands of years by indigenous peoples. In addition, the Antarctic lies on its own continental shelf while the Arctic region is an extension of the continental shelves of the Arctic nations. Thus, under the United Nations Commission on the Limits of the Continental Shelf regime sovereign nations have geographic claims to territorial sovereignty in the Arctic while they do not have geographic claims to territorial sovereignty in Antarctica.

In short, the Arctic is a region while Antarctica is a continent. The precedent of American and Russian Arctic submarine operations, hydrocarbon drilling and recent increased Russian Arctic militarism demonstrate that the Arctic will not, as the Antarctic, be forever exclusively dedicated to peaceful purposes.  However, the Antarctic Treaty holds a number of important precedents that might be incorporated into an international Arctic governance regime.

First, the Antarctic Treaty represents an international intergovernmental environmental regime. Nuclear explosions and nuclear waste disposal are explicitly prohibited by the Antarctic Treaty.  Given the Russian and Americans’ documented history of nuclear dumping as well as extensive nuclear submarine activity in the Arctic, similar nuclear dumping and nuclear weapons use guidelines in the Arctic would help to protect the Arctic marine environment and Arctic peoples while potentially reducing levels of Arctic militarism.

Second, the Antarctic Treaty emphasizes open exchange of scientific information, observations and results as well as exchange of scientific personnel in the Antarctic region “to permit maximum economy and efficiency of operations”.  Scientific information and personnel exchange in the Arctic could help develop an international integrated ice regime system, lead to more accurate measurement of ice flow threats and facilitate the development of international scientific institutions to study problems specific to the fragile Arctic environment. Such issues might include monitoring time trends in ice formation and coverage, precipitation, storm and other weather information and information on pollutants released in and carried into the region.

Article VII of the Antarctic Treaty also provides for “facilitation of the exercise of the rights of inspection”. This includes aerial observation permitted at any time by Contracting Parties and the openness at all times to inspection of stations, installations and equipment as well as ships and aircraft at point of discharging or embarking cargoes or personnel.  While a similar highly cooperative system is unlikely to develop in the nationalized and more polarized Arctic, increased transparency with regards to nation-states’ Arctic operations could soothe national security concerns. Transparency would also encourage Arctic players to employ heightened environmental safeguards and lead to a more demilitarized as well as cleaner Arctic. Indeed, countries and corporations might choose to lead by example, facilitating the development of best practices in the region. In addition, such an open inspection system would function as a deterrent to anyone looking to engage in illegal smuggling activities—for instance of weapons, nuclear material or humans—through the Arctic.

The Antarctic Treaty also provides an important framework for an environmental regime that governs native ecosystems, including local flora and fauna. Applicable to the area south of 60° South latitude, the Agreed Measures for the Conservation of Antarctic Fauna and Flora protect native mammals, birds and plants “indigenous to the Antarctic or occurring there through natural agencies of dispersal”.  Except when granted permits in case of providing indispensable food for dogs or men, providing specimens for scientific study or scientific information or providing specimens for museums, zoological gardens, or other educational or cultural institutions or uses, it is prohibited to kill, wound, capture or molest native mammals or birds in Antarctica.  In addition, it is unlawful to allow dogs to run free or operate vehicles in unnecessary proximity (within two hundred meters) to bird and seal concentrations. It is prohibited to fly or land helicopters or other aircraft in a manner that would unnecessarily disturb bird or seal populations unless necessary to establish, supply and operate scientific stations.  Governments are instructed to take reasonable measures to prevent pollution of nearby waters. Within Specially Protected Areas, except in the case of a specially issued scientific permit, it is prohibited to drive any vehicle or to collect any native plant.  Except in the case of food and under controlled conditions, no non-indigenous plant or animal species are allowed into Antarctica. In addition, reasonable precautions to prevent non-native parasites and diseases from entering the region must be taken.

To some extent, each of these measures could be similarly applied in the Arctic. Because the Arctic is not itself a continent, restrictions on plane and helicopter operations would probably occur at a national level except in international airspace, although an international agreement could tax or limit either average, per flight or aggregate pollution by air traffic. An international organization to disseminate national fisheries management policies could broadly disseminate fisheries policies. Since national Arctic marine ecosystems are inextricably linked by the Arctic Ocean, the free exchange of information concerning fish stocks and co-regulation of fisheries in order to ensure sustainable catch limits would facilitate sustainable Arctic fisheries management. Even if Canada fishes, for instance, at what is considered a sustainable level, overfishing in Norway or Russia could throw off the balance of the interconnected marine ecosystem.

Non-native marine (and land-based) species will migrate into the Arctic as ocean water warms. However, international restrictions on and penalties for the accidental or purposeful introduction of harmful and non-native plant or animal species to the region can be adopted. National regimes can regulate land-based pollution entering the Arctic waters while an international regime could establish shipping guidelines designed to prevent pollution originating from ocean activities such as vessel shipping or oil and natural gas drilling.

One highly relevant application of the Antarctic Treaty to the Arctic is the Antarctic Treaty’s Appendix II, Article XI concerning ships’ crews. Article XI provides that governments whose expeditions use ships sailing under flags of nationalities other than its own observe, as far as reasonable, the measures of the treaty.  In the case of the Arctic, this could be applied with increased scope over governments whose corporations use expeditions sailing under flags of other nationalities to increase accountability amongst vessel owners flying a Flag of Convenience. Indeed, such a regime would encourage increased shipping oversight by Arctic as well as non-Arctic players by increasing their legal responsibilities to an Arctic governance regime. Additionally, Annex V of the Protocol on Environmental Protection outlines the legal basis for liability as well as the venue and process in which this should occur (under the national court of the pursuing party subject to domestic law) and similar guidelines could be applied in the Arctic.

The Antarctic Treaty also includes provisions to protect endangered species. For instance, the Antarctic Treaty’s Appendix III addresses the need for specific provisions protecting Antarctic seals. Appendix III could serve as a template for a similar treaty protecting threatened Arctic species such as the beluga whale and polar bear. Polar bear hunts, for instance, are currently big money for Inuit hunters, since big game hunters will pay around US$35,000 to participate in a polar bear hunt. Protection of these animals’ natural habitat would be central to any such protected species agreement; however, negative externalities such as declining sea ice levels and rising seawater temperatures would complicate the process of enforcing an agreement that protects the animals’ natural habitat. Currently, the 1973 Agreement on the Conservation of Polar Bears and their Habitats protects the three largest polar-bear denning areas, one each in Russia, Svalbard and Canada, but polar bears’ offshore feeding grounds lack the protection of their breeding grounds. Other important native species, such as reindeer and caribou, would also benefit from environmental protection regimes.

The 1991 Protocol on Environmental Protection to the Antarctic Treaty was a commitment by the Contracting Parties to the treaty to “commit themselves to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and … designate Antarctica as a natural reserve, devoted to peace and science.” Today, the Contracting Parties remain committed to ensuring this vision: the mineral, oil and natural gas reserves in the Antarctic will remain untouched for the foreseeable future except for scientific purposes. While no single nation has adopted a policy stance proposing that Arctic resources remain untouched in the same fashion, the Protocol on Environmental Protection does provide a useful example of an international management regime that could to some extent be copied in the Arctic.

Namely, the Protocol on Environmental Protection provides annexes to deal with the issues of waste disposal and marine pollution as well as the preservation of protected areas and Antarctic fauna and flora. In general, countries are responsible to the maximum extent practicable for removing Antarctic waste to their own country, including sewage and nuclear waste.  Waste management plans are annually reviewed and updated. However, raw sewage is permitted to be disposed by vessels in the Antarctic on a limited basis provided they are at least twelve nautical miles offshore (large quantities of such waste must be treated by maceration prior to disposal). This raw sewage provision would be an unacceptable standard to allow in the Arctic, particularly given the increasing number of cruise ships visiting the region.   Discharge from ships of oil, noxious chemical substances, grey water and other liquids that may be harmful, as well as garbage and synthetic products such as fishing nets to the environment is generally prohibited in the Antarctic, except in the case of disaster when reasonable precautions must be taken to prevent or minimize the pollution.  Ships owned and operated by the state such as warships or naval auxiliary vessels are subject to the requirements of the annex, however, only as far as is practicable when engaged in government non-commercial duty.  These successfully implemented measures could serve as precedent for and the basis of cooperation on similar issues in the Arctic region.

Finally, the Antarctic regime contains special clauses that limit activity within Specially Protected Areas and Specially Managed Areas that are deemed of vital environmental or historical importance. In the Arctic, such areas might include whale breeding grounds in Lancaster Sound and offshore polar bear feeding grounds. A regime modeled after the Antarctic Treaty that requires permits to operate in well-defined historically or ecologically important areas of the Arctic would be an important step towards preserving local ecosystems. This could help protect indigenous rights and better monitor and protect fragile Arctic ecosystems.