A pristine Antarctica is important to scientific research and stabilizing the planetary environment. However, in the late 1940's, conflict arose among the sovereign states claiming territory in Antarctica. There was potential militarization in the continent between two superpowers, the United States and the Soviet Union, both of which had significant interests there.
|Gonzaga Journal of International Law||
Cite as: Martin Lishexian Lee, A Case for World Government of the Antarctic, 9 Gonz. J. Int'l L. 73 (2005), available at http://www.gonzagajil.org/.
A Case for World Government of the Antarctic
Martin Lishexian Lee*
A pristine Antarctica is important to scientific research and stabilizing the planetary environment. However, in the late 1940's, conflict arose among the sovereign states claiming territory in Antarctica. There was potential militarization in the continent between two superpowers, the United States and the Soviet Union, both of which had significant interests there. Born in the Cold War times, the Antarctic Treaty itself sought to demilitarize Antarctica, promote freedom of scientific research and encourage international co-operation. Subsequently, in order to accommodate various needs and international circumstances, a mechanism has gradually evolved focusing on comprehensive environmental protection, the Antarctic Treaty System.
In the past forty years, the mechanism has successfully achieved its goals. As a vehicle of collective administration, the Antarctic Treaty System has preserved the continent, ensured freedom of scientific research, and circumvented territorial claim problems. The key to success is its unique freezing and bifocalism approach: seeking for non-solutions to sovereignty issues and leaving deep conflicts to future resolution. However, it is this approach, arguably, which contributes to the weak enforcement of the obligations. Uncertainty of territorial sovereignty leads to jurisdiction difficulties. This, in combination with the ambiguity and loopholes present in the instruments and recommendations of the regime, the hortatory nature of those recommendations, consensus and veto powers, self-policing policy, lack of third party effects, and other factors, hinders enforcement of compliance under the system.
These defects are perceived as incurable in the current structure due to the inherent problem of territorial conflict and the basic principle of consent in treaty law. While the regime has been successful in the past, it may not be able to cope with the challenges of the 21st century, which include floods of tourists, illegal fishing and scientific research, and potential mining interests and development. Therefore, the Antarctic Treaty System should further evolve to accommodate the new circumstances. This article suggests that the administration of Antarctic affairs be under a world government. While the political reality indicates the difficulty of establishing a new world government, it would be more realistic to encourage the United Nations (UN) to evolve in this way. The fundamental features of this proposed system is that its administration is not based on consent and States must relinquish their external sovereignty. This author argues that this would eliminate the inherited defects of the current regime, enabling the Antarctic Treaty System to achieve further triumphs when facing the new challenges.
II. Background of the Antarctic Treaty System
Antarctica is one of the most vast, primarily unexplored areas, and the coldest, driest environment on earth. It is important to scientific research, and plays a significant role in stabilizing the planetary environment. In the late 1940s the conflict between nations claiming territory in the Antarctic region opened up. The potential for militarization of the continent existed between the United States and the Soviet Union, both of which had significant Antarctic interests. At the time, the potential existed for Antarctica to become a pawn in the Cold War. Born in such an era, the Antarctic Treaty, which was concluded in 1959, sought to deal with the major issues current then and itself made virtually no reference to the environment. It provides that Antarctica is to be used for peaceful purposes only and no military bases are to be established on the continent. Freedom of scientific research is encouraged with mechanisms to promote international cooperation. Subsequently, with the accommodation to new circumstances and needs, and changing priorities among the Consultative Parties, the regime has evolved to a structure emphasizing environmental protection. Defined in the Antarctic Treaty, the Antarctic System governs the application of the measures in effect under the Treaty, its associated separate international instruments in force, and the measures in effect under those instruments. Currently, there are five separate instruments in force and one is legally dead.
The Antarctic Treaty System has managed Antarctica effectively to date. It has not only avoided conflicts over sovereignty and prevented the militarization of the continent, but also prevented an unregulated gold rush in Antarctica. As a "vehicle for collective administration," the system has attained "three landmark achievements," i.e. reservation of Antarctica, ensuring freedom of science, and removal of the territorial claim problem. The key to its success is its unique, flexible approach of freezing and bifocalism, specified in Article IV of the Antarctic Treaty.
Nevertheless, it is this flexible approach which contributes to the weak enforcement. It is true that by seeking this flexible non-solution for sovereignty issues, the deepest conflict in relation to territorial claims may be temporarily put aside. However, merely maintaining the status quo will not ensure that it can respond to the growing needs to protect the Antarctic environment. Freezing territorial disputes may create such a circumstance that no Contracting Parties want to or are able to enforce the system. For example, the weaknesses of CCAMLR are easily traced back to the sovereignty issue. This leaves unresolved problems in managing Antarctic affairs.
III. Weak Enforcement
Enforcement is "[t]he act or process of compelling compliance with a law… or agreement," or "compulsory execution." For a law to be successful, its "enforcement [mechanism] must be established." It is the same with respect of the Antarctic Treaty System. In CCAMLR and the Protocol, this mechanism is an observation and inspection system,  with which the Antarctic Treaty System could be enforced through a liability regime. 
This enforcement regime is considered weak. For example, in the Protocol, the Environmental Protection Committee is criticized as "lack[ing] real authority to enforce compliance" with it. The weakness of the enforcement of the Antarctic Treaty System is, arguably, derived from jurisdiction difficulties, ambiguity of the language in the instruments and recommendations, loopholes in the designation of the system, defects in the enforcement procedure, and absence of third party effects.
A. Jurisdictional Difficulty
Under the Antarctic Treaty, in a dispute regarding jurisdiction in Antarctica the Contracting Parties should consult for a mutually acceptable solution. Essen contests that the jurisdiction vested thereby in fact is a joint global one over the continent. One basis for this view is that the Consultative Meetings under Article IX went beyond the express provisions of the Antarctic Treaty, dynamically leading to jointly exercising such a jurisdiction.‘ Zang maintains that three generally recognized principles, i.e. territorial sovereignty, the objective treaty doctrine and customary international law, lend support to this jurisdiction. Nonetheless, this author perceives that jurisdictional difficulties remain unsolved problems for the following reasons.
1. Territorial Sovereignty
Enforcing jurisdiction is usually related to territorial sovereignty in an area. In this sense, the advantage of freezing territorial claims in Article IV of the Antarctic Treaty may turn out to be a side effect. While the Treaty parties freeze their position in relation to territorial claims, the uncertainty of territorial status of Antarctica may result in difficulty in exercise of jurisdiction to enforce the obligations under the Antarctic Treaty System. For instance, in cases where the enforcement is against a third state by a claimant state, the latter may not be willing to surrender the exercise of jurisdiction based on the principle of territoriality, in order to maintain their claimed sovereignty right. However, the third State may reject the action which otherwise would amount to a recognition of the claim. The situation is similar when an offender is a private citizen from a third State. The jurisdiction difficulty arising from territorial sovereignty is more obvious to non-claimant state parties. For example, due to lack of sovereignty, there is little to suggest that those states would be willing to extraterritorially apply their environmental laws to Antarctica in implementing the Protocol. Hence, if states do not give up present claims, the Antarctic Treaty System could not operate effectively, and could not continue to guarantee to protect the Antarctic environment in changing circumstances. This is the price the Consultative Parties will continue to pay for the freezing and bifocal approach.
2. Flag State Jurisdiction
In some circumstances, the enforcement is a matter for the flag state. In CCAMLR, in the event a breach is observed and reported, it is the flag state's responsibility to take steps for further action such as prosecution or sanctions. Similarly, the Convention for the Conservation of Antarctic Seals arguably provides that flag-state jurisdiction is the only grounds for enforcement. Nevertheless, in today's international kaleidoscope, it is difficult to envisage a wholly effective regime enforced only by a state's jurisdiction over vessels sailing under its flag. For instance, tourism companies involved in Antarctic tourism may operate vessels which they may own, or which are chartered or sub-chartered. These vessels may be flagged either under the flag of an Antarctic Treaty State, or under the flag of a third-party State. If sailing under the flag of a third-party State, that state is not obliged to enforce the Antarctic Treaty System as to that vessel (see details below in Difficulties in Binding Third Parties).
Problems with flag-state jurisdiction under the CCAMLR have been encountered in a number of ways. During 2001, Belize, Indonesia, Panama, St. Vincent and Grenadines; none of which were CCAMLR contracting parties, were all identified as States whose vessels had been involved in harvesting, landing or importing of toothfish. Because these countries were not CCAMLR Contracting Parties, all the CCAMLR Commission could do was to provide relevant information about the CCAMLR approach and invite them to participate. In addition to problems with third party States, CCAMLR Contracting Parties have also been found to be involved in illegal fishing. For example, two Uruguayan-flagged vessels, Maya V and Sherpa Uno, were included on the 2004/2005 illegal, unreported and unregulated vessel list. An additional issue is the "reflagging" of vessels. Reflagging occurs when vessels change their State registration, and the flag under which they sail, in order to avoid the international law obligations imposed by their home State. Thus, a vessel from a CCAMLR Contracting Party may reflag as a non-CCAMLR vessel to circumvent the operation of CCAMLR when fishing illegally. Consequently, there is great difficulty in enforcing the CCAMLR solely using flag-states jurisdiction.
B. Ambiguity and Loopholes
Ambiguity of the language in the text of the Antarctic Treaty System instruments is not uncommon. Although the Protocol is claimed to be a "masterpiece of clarity" in comparison to the United Nations Convention on the Law of the Sea, some authors have found excessive vagueness in some of the Protocol's provisions. Examples of that vague language include the phrases "to the maximum extent practicable" and "as far as practicable" as used in Annex III. These expressions are soft, indicating their imprecise scope, and consequently they have weakened compliance with the obligation under the Protocol. Deliberate ambiguities are noticed in a number of provisions, particularly the crucial but undefined concept of a "minor or transitory impact."‘ This ambiguity is regarded as one of the reasons that the Protocol offers an unreliable approach to environmental protection. As to the Protocol itself, ambiguity is evident even in the key Article 3 where the environmental principles are addressed, such as contrasting references to the scope of the Protocol by the term "activities." Other examples include "suitable intervals" in Article IX,‘ and "jurisdiction" in Article VIII of the Antarctic Treaty. Watts also lists some examples of ambiguity with respect of the jurisdiction basis for enforcement in CRAMRA, and Deihl has picked dozens of ambiguous terms such as the non-defined "significant," "adequate," "reasonably," and "appropriate" in its Article 4. Although CRAMRA is legally dead, but these examples may still illustrate the ambiguity of the language in the instruments.
Besides the Antarctic Treaty System instruments, the language in some recommendations is vague as well. For example, in the Recommendation VIII-13, ambiguity is embodied in the actual content regarding the measures to protect the Antarctic environment. There the language is that the measures must be consistent with the interests of all mankind. Unless steps were taken to exercise appropriate controls, no activity with an inherent tendency to modify the environment over wide areas within the Antarctic Treaty region should be undertaken. In addition, phrases used in recommendations such as "become effective" are also ambiguous as the "obligatory depth attached to a recommendation's ‘effectiveness' remains unclear and subject to interpretation."
Another problem is loopholes. One of them is a "walkout clause" in Article 25(5)(b) of the Protocol. It provides that fifty years later, if a modification or amendment to prohibition of any mining activities in Antarctica has not entered into force within 3 years, any party may withdraw from the Protocol. This makes it easy for a State Party to unilaterally withdraw from the Protocol and conduct virtually unregulated mining operations in Antarctica. Welch refers to this clause as "the noose around the neck of the globe's last wilderness." Another example is Article X of the CCAMLR. There the only measure is to "draw to the attention of contracting parties or third States", with no specific enforcement procedures to allow the Commission to implement its measures. Similar problem exists in the Agreed Measures where there are "few guidelines as to who may issue permits, and what area those permits may cover." It is perceived that these defects will bring about difficulties in the course of enforcement. For instance, deliberate ambiguity in sovereignty issues may create circumstances where no one enforces the regime.
C. The Enforcement Procedures
1. Self-Policing Policy
The Antarctic Treaty System has established a self-policing enforcement mechanism. Under Article VII(1) of the Antarctic Treaty and its mirror Articles in other instruments, only those Contracting Parties who are entitled to participate in the Antarctic Treaty Consultative Meetings have the right to designate observers to carry out inspections. In CCAMLR, where observers and inspectors are designated by the Commission, arguably the system of observation and inspection is still self-policing. This is because both the Commission and the observation and inspection system are established by the Contracting Parties. Designated observers and inspectors "remain subject to the jurisdiction of the Contracting Party of which they are nationals." Another example is the Agreed Measures. There, implementation and enforcement are the responsibility of individual Treaty parties. Thus, the process of discharging this responsibility by enacting their own domestic legislation for monitoring, preventing and punishing unlawful activities largely depends on the willingness of governments of the Contracting States. Some States may be simply unwilling to do so for political or self-interest reasons. In such an event, the only form of enforcement is the "moral sanction," or psychological sanction constituted by the pressure from other States. The weakness of this self-policing policy is best evident by a frequently cited case, the construction of an airstrip by France in its claimed sector.
Due to the self-policing policy, the observation and inspection mechanism lacks independence. While it is true the Antarctic Treaty System provides wide powers of inspection and observation, the inspectors lack enforcement powers. Designated observers have "complete freedom of access at any time to any or all areas of Antarctica," and all areas of Antarctica should be open at all times to inspection by these observers. On the face of it, the inspections and observations are comprehensive. Nonetheless, these powers are "not in the context of enforcement." In the CCAMLR cases, inspectors may inspect catch, nets and other fishing gear, data, and records on catch and location. On the other hand, they are only empowered to report and alert the master of vessels in the event of a breach. Accordingly, the enforcement under CCAMLR is weak for want of an adequate on-the-spot enforcement procedure. Responsibility to enforce is on flag States. Thus if they are not interested in the system, they would not take further action. In this circumstance, if someone goes to Antarctica to fish illegally, he can only be removed by relying on the Exclusive Economic Zone. This raises a further issue of the need for armed inspections. Otherwise, the only weapon is "the embarrassment of being publicly seen as a State lacking an environmental conscience." If there is no clear change, CCAMLR could not be implemented successfully.
2. Hortatory Recommendations
There is a question of the lawful status of the Antarctic Treaty Consultative Meeting recommendations. In international practice, when interpreting a treaty, "any subsequent agreement between the parties regarding… the application of its provisions" should be taken into account. In the definition of the Antarctic Treaty System, measures are clearly included as a part of the regime. In spite of these, typical recommendations traditionally convey only hortatory meaning, and only advise as being an appropriate option. Even if a recommendation is legally binding, it could contain only weak and vague obligations. Hence, the Antarctic Treaty recommendations are generally assumed to be "soft law [that furnish] international policy coordination[s]." These laws may lack third party effects.
3. Consensus and Veto Power
Consensus and veto power are also partly responsible for weak enforcement in the Antarctic Treaty System. Under Article IX(1)(4), measures formulated and recommended at the Antarctic Treaty Consultative Meetings become effective by the approval of all the Consultative Parties. That is, a recommendation does not bind a Party except with its consent. This is labeled as the ‘cornerstone of the whole system', as it ensures that a majority can never override a minority. Consequently compromises may be honored. In spite of such advantages, this article argues that it is in this way that the effectiveness of enforcement is diminished.
It appears that the veto power enables a Consultative Party to prevent a measure or recommendation from becoming effective. If a party does not like a measure, no matter for what reason, it can always boycott a Consultative Meeting. The difficulties CCAMLR encountered in achieving its objectives demonstrate this. There, its measures are formulated by the Commission. At the Eighth Commission Meeting, the Soviets refused to approve the regulation of net mesh sizes, which sufficiently blocked the rest of members' initiative. "Similarly, fishing nations obstruct[ed] efforts to acquire more scientific data." Though some argue that the key issue does not lie with consensus but with a political process of integrating science and technical knowledge into the decision-making, the power of veto, which emphasizes the self-interest of the parties, is substantial.
D. Difficulty in Binding Third Parties
An inherent problem of the Antarctic Treaty System is that its application does not formally extend to third party States or their national and flagged-vessels in Antarctica. This is because, generally, treaties are binding only on the parties, and ‘does not create either obligations or rights for a third State without its consent'. To create legal regimes valid for the whole world, the parties to the treaty must have such an intention, and the third State must expressly consent.
Some commentators argue that some obligations under the Antarctic Treaty System are phrased in objective terms showing such an intention. For example, Article X of the Antarctic Treaty states: "[e]ach of the Contracting Parties undertakes to exert appropriate efforts…to the end that no one engages in any activity in Antarctica contrary to the principles or purposes of the…Treaty." In interpreting this provision, the majority of writers maintain that this Article itself is the vehicle which brings about third party obligation. On the other hand, it is noted that in the same treaty, Article XIII(5) indicates a different direction. It provides that "[u]pon the deposit of instruments of ratification by all the signatory States", the Treaty "shall enter into force for those States and for States which have deposited instruments of accession". Thereafter, the Treaty "shall enter into force for any acceding State upon the deposit of its instrument of accession." Accordingly, this author argues that the language itself shows no intention to bind the world. Coupled with the fact that the "Antarctic Club" has taken various steps to open up itself to newcomers and to relax conditions for being a Consultative Party, it may be well argued that the Parties intend to bind States only when they become members. Third States are merely persuaded not to do wrongful acts. The wording of the Protocol, Article 13(5), also supports this view.
As to the consent, Sir Humphrey Waldock suggested that acquiescence might be presumed if a third State did not protest within a given period of time. Taking into account the fact that the majority member States of the UN show no inclination to join the ‘Club' and to take Consultative Parties membership, this silence should not be simply regarded as acquiescence before knowing whether those States have to take cognizance of the Antarctic Treaty System. Brunner considers that the language in Article XIII(5) also decisively reduces the possibility that the world community has accepted tacitly the system as an objective regime. More importantly, the law of treaties requires that a third State expressly accept such an obligation in writing. Consequently the Antarctic Treaty System would not be an "objective regime" except for the environmental part.
For lack of third party effect, a threat may be from the activities of a third State which relies on other branches of international law. For instance, the Protocol prohibits mining on the Antarctic continent and in the Southern Ocean. At the same time, the Southern Ocean also falls within the deep-sea bed regime created by the United Nations Convention on the Law of the Sea. The deep-sea bed is reaffirmed as, with ocean floor and subsoil together, a part of the common heritage of mankind. Hence, it is potentially subject to resource exploitation, and consequently a conflict arises between these two regimes. At this stage, it appears difficult to solve the conflict by means of external accommodation, and difficult to secure compliance on the third State and their nationals, enterprises or ships. The Contracting Parties may only rely on general international law principles to enforce obligations against third States, or simply do nothing more than moral persuasion.
Another reason for weak enforcement is the cost. To keep the Antarctic and Southern Ocean area under surveillance is not practical simply because of an immense expense, and a financial benefit that is hardly seen. Consequently, combined with the factors already discussed, the ecosystem would be left without adequate protection.
III. Facing New Challenges – The Need for a World Government
A. New Challenges in the 21st Century
In spite of the triumph of the past decades, the Antarctic Treaty System is now facing new challenges. In particular: the increasing numbers of tourists in Antarctica; the continuing problem of illegal, unreported and unregulated (IUU) fishing; the potential problem of mining, and whether environmental protection can co-exist with scientific research. These are elaborated upon below.
Arguably, the most serious threat could be from tourism. Nowadays, tourist activities have grown into one of the world's largest industries. Its total turnover volume is approximately US $3.4 billion, representing 5.5% of the world's gross national product. Tourists in Antarctica in 1992 already outnumbered the scientific and logistical personnel. Within less than 10 years tourism has increased almost 800%, and is still increasing substantially each year. In 2001 there were around 10,000 tourists. The annual numbers have risen to 24,281 in the summer of 2003/04. Tourism has become a significant source of environmental degradation.
Despite the serious situation, effective control over tourist and non-governmental expeditions to the Antarctic has not been established. This may be traced back to the Antarctic Treaty Consultative Parties' hortatory approach, and the failure to incorporate particular provisions accounting for tourism. Thus when some tourism issues go beyond the limited scope of the Protocol, such as liability, insurance, jurisdiction, third party activities, and enforcement, it creates a vacuum of space in regulation. The failure to promulgate such provisions stems from several causes. Among them, no agreed approach between the Consultative Parties to the exercise of jurisdiction over tourism and other expeditions contributes significantly. Notable progress with regard to providing guidelines for tourists and tour operators has been made since Recommendation XVIII-1, adopted in 1994. However, because of the non-mandatory nature and the unique political and jurisdictional basis, there are substantial obstacles for achieving effective regulation. As a result, the administrative capacity of the Antarctic Treaty System will continue to be challenged.
2. Fishery, Scientific Research, and Potential Mining
The greatest challenge in respect of fishing is from large scale IUU fishing activities in the CCAMLR area. These activities are undertaken by vessels of both CCAMLR Contracting Parties and non-Parties. The estimated IUU catch of toothfish for the CCAMLR area in the 1996/97 fishing season was 32,673 tonnes. It dropped to 5,868 tonnes in 1998/99, and then gradually reached another peak record in 2001/02 at 11,857 tonnes. It dramatically dropped to 2,622 tonnes in 2003/04, several reasons have been considered. On the face of it, these statistics present two peaks and two troughs, and the second trough achieved a much lower level. As CCAMLR measures should not have periodical effects, this author submits that it is more likely that toothfish stocks have been depleted by illegal fishing activities. Therefore, these illegal fishing activities seriously undermined the objective of CCAMLR and the Antarctic Treaty System, and are not easy to be controlled with the current system.
Scientific research, coupled with international co-operation, is honored as the hallmark of the Antarctic Treaty. However, "research will inevitably result in some harm to the Antarctic environment." The development of the Antarctic Treaty System has placed further emphasis on the freedom of scientific research, and there will be more research assignments. For example, in 2001 the budget of the United States Polar Programs increased by 17 percent over that of 2000. This seems to be a continuous growth: in 2002 it was funded 1.5 per cent more than that of 2001, in 2003, 2.0% more than in 2002, in 2004, 3.4% more than in 2003, and in 2005 it was 2.2 per cent more than in 2004. The flood of scientific activities brings new environmental concerns that increasing demands on the scientific agenda would not match corresponding resources. This causes tension between environmental protection and the freedom of science.
A further challenge is from potential mining. The possibility to exploit minerals still exists, although the Protocol prohibits mining in Antarctica. As discussed before, the ‘walkout clause' has created the possibility of unilateral withdrawal from the Protocol by any parties after fifty years. Additionally, if a review conference is held and the Protocol is modified in the manner and form that complies with Article 25, the prohibition may be lifted.
Having presented the new challenges in the 21st century, this author believes that the Antarctic Treaty System must continue to evolve to accommodate these challenges. For this purpose, there have been some proposed options such as remaining within the present treaty system but adopting agreed measures, recommendations or new protocols; increasing the frequency of meetings and broadening their functions with the introduction of a secretariat which has come to exist; increasing transparency in decision-making; and developing a new convention beyond the current one. Nonetheless, this article argues that these challenges would not be easily dealt with by these proposals under the current administrative structure based on co-operation and consensus. While the basic problem of sovereign conflict remains unresolved, serious defects of the regime, particularly jurisdiction difficulties, would not be able to be eliminated. Other congenital defects such as its hortatory nature and lack of third party effects are due to the inherent weakness of international law. Thus this author suggests that the Antarctic Treaty System be put under the administration of a vertical world government as a radical resolution.
B. World Government
1. Administrative Model
At first the system may take the form of a limited world government, as it would be more effective if conflict can be avoided. External sovereignty must be relinquished to prevent the problem from resurfacing. Under this model, there would be only a single authority, one law and one system of justice. The International Court of Justice (ICJ) and other tribunals should be vested with mandatory powers. Consensus would not be the prerequisite to invoke the Court's jurisdiction. States would appear compulsorily before the Courts. Private individuals should no longer be excluded on the ground of no standing. In this way, any offences, no matter whether it is abuse of the environment or illegal fishing, may be brought before these judicial bodies. It is perceived that this would convert political transactions into executive administration and legal enforcement. Thus, political pressure imposed on the Antarctic Treaty System and its recommendations may be resisted. Furthermore, the problems of lack of timely approval of recommendations, and inconsistent compliance with such recommendations should be able to be overcome. Consequently, global justice would be achieved.
2. World Government vs. UN: Evolution
The fundamental distinction between world government and the UN is, arguably, that the former is not based on consent. Rather, it is like a government in a federal country such as the United States and Australia: it has its own law-making and law-enforcement mechanisms. These mechanisms provide unilateral measures rather than hortatory recommendations. In contrast, the UN is a "horizontal" organization based on a "consensual system epitomized by the contract." In other words, it is a multilateral forum and does not have independent legislative authority.
However, it is not easy to create a polity. The strong resistance to the republican movement in Australia is an illustration. This is equally true for the UN and the Antarctic Treaty System, of which the successful past could become a hurdle for reform. As to the world government, there are some academics announcing the death of the nation-state. On the other side, the international society would strive to prevent major breakdowns of order without the guidance of a sovereign. States are reluctant to concede their place in international law to individuals, since such a shift would threaten their sovereignty. Hence, political reality suggests that an innovative world government would be difficult to bring into being.
This article submits that a realistic solution is to encourage the UN to evolve into a vertical governmental institution. At this stage the UN already possesses some "elements of global [governance]." Along these lines, it may first evolve to a structure like the European Union, and then further to a more centralized institution i.e. world government elected by world citizens. At that time, states are no longer the major players in the UN, and we would have a real global community. The process of economic globalization indicates this trend and likelihood, and is described as "an unstoppable force hurtling toward immovable object-state sovereignty." The Antarctic Treaty System, when it accommodates this trend, would become a part of this force.
Born in the age of the Cold War and shouldered with the task to promote peace, freedom of scientific research and international co-operation, the Antarctic Treaty System has successfully turned the potential militarization in the Antarctic continent into a peaceful reserve. During this process, the Antarctic Treaty System itself has also evolved to a comprehensive environmental protection regime. In achieving these triumphs, to freeze the different parties' legal position in relation to their territorial claims has been the key to success.
Nevertheless, it is the strategy to freeze the sovereignty issue which has substantially led to the weak enforcement of the regime. Uncertainty about the territorial sovereignty over Antarctica results in jurisdiction difficulties in the exercise of control over the activities in that region. There are a combination of other factors, such as ambiguity and loopholes in the instruments and recommendations, the self-policing policy, hortatory approach, consensus and veto powers, which mean that enforcement is weak.
Now the Antarctic Treaty System is facing new challenges for the new century. Increases in tourist numbers, illegal fishing and increased scientific research, and potential mining activities are becoming serious threats to the Antarctic environment. The current administrative structure of the Antarctic Treaty System would not be able to deal with these threats due to the above weaknesses. These defects are, arguably, incurable unless the sovereignty claims are relinquished and the consensual basis of the regime can be eliminated. Thus, it is unavoidable to re-organize the administration of the Antarctic Treaty System.
This author advocates that the Antarctic Treaty System should become a regime under a world government administration. Under such an administration, states are required to relinquish sovereignty. Differing from the UN, this government has vertical powers and has a mandatory executive model. It is compulsory for parties to appear in front of the ICJ or other judicial bodies for legal proceedings and consensus will no longer be the prerequisite for their jurisdictions. Individuals should not be excluded on the grounds of lack of standing. Due to the political reality, it is practical to encourage the UN to evolve into a world government. The first stage may take the form of the European Union, and then move to be a more centralized institution. It is perceived that this administrative model would cure the inborn defects of sovereignty disputes and veto power, both of which hinder the effective administration and enforcement of the current Antarctic regime. In the light of the globalization process, this author believes that the Antarctic Treaty System, when it accommodates this trend and the new challenges, would add its own force to globalization, ringing the "funeral bells" for the "old notion of state sovereignty."
* B. Med (Sun Yat-sen U), LLB (Hons)(Tas). Barrister and solicitor of the Supreme Court of Tasmania, Australia. I would like to thank Dr. Gail Lugten for her encouragement in writing this article and comments on the drafts.
. The other two are high seas and outer space. See Kathleen T Mulville, United States v. Smithfield Foods, Inc., Note, How the Antarctic Science, Tourism, and Conservation Act of 1996 Fails Antarctica 23 Wm. & Mary Envtl. L. & Pol'y Rev., 649 (1999).
. Stuart B Kaye, Legal Approaches to Polar Fisheries Regimes: A Comparative Analysis of the Convention for the Conservation of Antarctic Marine Living Resources and the Bering Sea Doughnut Hole Convention, 26 Cal. W. Intl. J. 75, 79 (1995).
. The Antarctic Treaty, art. 1, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71; see also Donald R Rothwell and Ruth Davis, Antarctic Environmental Protection – A Collection of Australian and International Instruments, 42 (1997).
. Olav Schram Stokke and Willy Ostreng, The Effectiveness of ATS Regimes: Introduction, in, Governing the Antarctic – the Effectiveness and Legitimacy of the Antarctic Treaty System 113, 115 (Olav Schram Stokke and Davor Vidas eds., 1996).
. Protocol on Environmental Protection to the Antarctic Treaty, art 1(e), Oct. 4, 1991, Sen. Treaty Doc. 102-22; see also James Crawford and Donald R Rothwell, Legal Issues Confronting Australia's Antarctica 13 Aust. YBIL 53 (1992).
. In force: Antarctic Treaty 1959, Agreed Measures for the Conservation of Antarctic Fauna and Flora 1964 (hereinafter Agreed Measures), Convention for the Conservation of Antarctic Seals 1972, Convention for the Conservation of Antarctic Marine Living Resources 1980 (CCAMLR), Protocol on Environmental Protection to the Antarctic Treaty 1991 (Protocol). Legally dead (never in force because not signed by Australia and France): Convention on the Regulation of Antarctic Mineral Resource Activities 1988 (CRAMRA). According to the definition of the Antarctic Treaty System in the Protocol, arguably CRAMRA should not be included in the system as it has never been, and will never be in force.
. Christopher C. Joyner, Antarctica and the Law of the Sea, in 18 Publications on Ocean Development: A series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development 272 (Shigeru Oda ed., 1992).
. Black's Law Dictionary 569 (18th ed. 2004); see also Mary Ellen O'Connell, Enforcement and the Success of International Environmental Law, 3 Ind. j. Global Legal Stud. 47, 48 (1995) (providing a similar definition in the 1990 version of Black's Law Dictionary).
. See CCAMLR, supra note 12, art. XXIV(1), 33 U.S.T. at 3492, 1329 U.N.T.S. at 56 ("[i]n order to promote the objective and ensure observance of the provisions of the Convention, the Contracting Parties agree that a system of observation and inspection shall be established."); see also Matthew Howard, The Convention on the Conservation of Antarctic Marine Living Resources: A Five Year Review, Int'l & Comp. L.Q. 104, 140-41 (1989).
. See Protocol, supra note 11, art. 14, 30 I.L.M. at 1466-67, 4 Geo. Int'l Envtl. L. Rev. at 119 ("In order to . . . ensure compliance with this Protocol, the Antarctic Treaty Consultative Parties shall arrange . . . for inspections by observers to be made."); see also Christopher C. Joyner, CRAMRA's Legacy of Legitimacy: Progenitor to the Madrid Environmental Protocol, 7 Antarctic & S. Ocean L. & Pol'y Occasional Paper 1, 31 (1995).
. See Protocol, supra note 11, art. 16, 30 I.L.M. at 1467, 4 Geo. Int'l Envtl. L. Rev. at 120 (providing that "the Parties undertake to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area.").
. The other basis for this view are, inter alia, that Article VI of the Antarctic Treaty does not prejudice high seas rights; ice is the extension of high seas; freedom of science is included in freedom of high seas; freedom of navigation; and the Antarctic Treaty establishes a broad principle; see Van Der Essen, supra note 29, at 232-35.
. For an analysis on the relation between customary international law and the Antarctic Treaty System. see Douglas M. Zang, Frozen in Time: The Antarctic Mineral Resource Convention, 76 Cornell L. Rev. 722, 747-50 (1991).
. Stefan Brunner, Article 10 of the Antarctic Treaty Revisited, in International Law for Antarctica 103, 121 (Francesco Francioni & Tullio Scovazzi eds., 2d ed. 1996). Brunner also argues that States active in the area may lawfully exercise jurisdiction against third parties before title.
. Donald R Rothwell, A World Park for Antarctica? – Foundations, Developments and the Future, in 3 Antarctic and Southern Ocean Law and Policy 15 (S. K. N. Blay, R. Piotrowicz, and M. Tsamenyi, eds., 1990).
. Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), Text of the CCAMLR System of Inspection §XI, available at http://www.ccamlr.org/pu/e/e_pubs/bd/pt9.pdf; see also Stuart Kaye, International Fisheries Management 394-95 (2001).
. See Convention for the Conservation of Antarctic Seals, June 1, 1972, art. 2(2), 5(5), 29 U.S.T. 441; see F.M. Auburn, Antarctic Law and Politics, 210 (1981) (asserting that to enforce the Convention is "solely a matter of the flag State"). However, the wording in Article 2(2) is "for its nationals and for vessels under its flag," and in art. 5(5) it is "to prevent its nationals and vessels under its flag." Therefore, this author argues that flag-state jurisdiction is one of the grounds of enforcement, but not the sole matter. This is because under international law, nationality is another ground for the assertion of jurisdiction; see also Joyce v. Director of Public Prosecutions, A.C. 347 (1946); Martin Dixon and Robert Mccorquodale, Cases and Materials on International Law, 3rd ed., 290 (2000).
. See Commission for CCAMLR, Report of the Twentieth Meeting of the Commission, art. 5.25 (2001); see Commission for CCAMLR, Membership (Apr. 11, 2005), available at http://www.ccamlr.org.default.htm (showing that when this article was written, there were 24 members of the Commission for CCAMLR: Argentina, Australia, Belgium, Brazil, Chile, European Community, France, Germany, India, Italy, Japan, Republic of Korea, Namibia, New Zealand, Norway, Roland, Russia, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States of America, and Uruguay. There were 7 States party to the Convention, but that are not Members of the Commission: Bulgaria, Canada, Finland, Greece, Netherlands, Peru, and Vanuatu).
. Gail L Lutgen, Cooperation and Regional Fisheries Management, 30 Environmental Policy and Law 251, 251 (2000); Gail L Lutgen, The Rise and Fall of the Patagonian Toothfish – Food for Thought, 27 Environmental Policy and Law 401, 402 (1997); see also Commission for CCAMLR, supra note 48, para. 8.2, and Annex V, art. 2.2(iv).
. See id.; see Francisco Orrego Vicuna, The Protocol on Environmental Protection to the Antarctic Treaty: Questions of Effectiveness, 7 Geo. Int'l Envtl. L. Rev. 1, 7 (1994); see also Protocol, supra note 11, Annex III, art. 2(2); 3(1); 4(2); (3); 8(3).
. Annex I to the Protocol on Environmental Protection to the Antarctic Treaty Environmental Impact Assessment, Oct. 4, 1991, art. 2(1), 30 I.L.M. 1455, 1474, [hereinafter Annex I] states, "[u]nless it has been determined that an activity will have less than a minor or transitory impact, or unless a Comprehensive Environmental Evaluation is being prepared in accordance with Article 3, an Initial Environmental Evaluation shall be prepared".
. Protocol, supra note 11, art. 3(1), however art. 3(4) precisely provides "[a]ctivities undertaken in the Antarctic Treaty Area pursuant to scientific research programmes, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required in accordance with Article VII(5) of the Antarctic Treaty, including associated logistic support activities." See also Richardson, supra note 43, at 5.
. "Article IX provides that the Contracting Parties are to meet at suitable intervals to formulate and consider measures regarding the peaceful use of Antarctica, continued scientific cooperation, the rights of inspection set forth in Article VII, questions regarding jurisdiction, and the preservation and conservation of living resources." Wolfrum, supra note 51, at 89.
. Article VIII of the Antarctic Treaty of 1959 states: "without prejudice to the respective positions of the Contracting parties relating to jurisdiction over all other persons in Antarctica . . . members of the staffs …shall be subject only to the jurisdiction of the Contracting Party of which they are nationals," and "in any case of dispute with regard to the exercise of jurisdiction in Antarctica." See also Carl, supra note 34, at 70.
. In 1983, French began constructing an airfield at Point Geologie, which is along the coast in the French sector. Although it is one of Antarctica's richest areas in birds and seals, "no environmental impact study was done prior to beginning construction, and no alternatives to the airstrip were seriously considered." Joyner, supra note 24, at 417; see also Zang, supra note 32, at 755-56.
. The Protocol states: "Consultative Parties shall arrange, individually or collectively, for inspections by observers to be made in accordance with Article VII of the Antarctic Treaty." Protocol, supra note 12, art. 14(1), see also S.K.N. Blay, New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol, 86 AM. J. INT'L L. 377, 390 (1992).
. Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), Text of the CCAMLR System of Inspection §VI, available at http://www.ccamlr.org/pu/e/e_pubs/bd/pt9.pdf; see Kaye, supra note 41, at 394.
. CCAMLR, supra note 12, art. IX(1)(f). By its membership requirement, arguably the Commission's constitution is similar to the Antarctic Treaty Consultative Meetings. See CCAMLR, supra note 12, art. VII(2)(b) (requiring that "each State Party . is engaged in research or harvesting activities in relation to the marine living resources."); cf. The Antarctic Treaty, supra note 8, art. IX(2) (requiring "each Contracting Party . demonstrate[ ] its interest in Antarctica by conducting substantial scientific research activity."). However, the Commission's constitution in CCAMLR is wider by extending the membership to regional economic integration organizations with similar conditions. CCAMLR, supra note 12, art. VII(2)(c), XXIX(1).
. Vienna Convention on the Law of Treaties, Jan. 27, 1980, art. 34, 1155 U.N.T.S. 331, 341; see also Jan Linehan, Public International Law: An Australian Perspective 105 (Sam Blay, Ryszard Piotrowics, & B. Martin Tsamenyi eds., 1997).
. See Vienna Convention on the Law of Treaties, Jan. 27, 1980, art. 35, 1155 U.N.T.S. 331, 341 (stating that "[a]n obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing."¨); see also Linehan, supra note 109.
. Including those expressed in Art. I, Art. IV(2), and Art. V of the Treaty, and Art. IV of the Agreed Measure. Bruno Simma, The Antarctic Treaty as a Treaty Providing for an "Objective Regime", 19 Cornell Int'l L.J. 189, 196 (1986).
. "Upon the deposit of instruments of ratification by all the signatory States, the present Treaty shall enter into force for those States and for States which have deposited instruments of accession. Thereafter the Treaty shall enter into force for any acceding State upon the deposit of its instruments of accession." The Antarctic Treaty of 1959, art. XIII(5), available at http://www.antarctica.ac.uk/About_Antarctica/Treaty/treaty.html#Article13.
. Id. (stating that "[t]here is a need to know whether, and eventually in which respects, those states, legally speaking, have to take cognizance of the present and the future Antarctic Treaty regime.").
. Vienna Convention on the Law of Treaties, Jan. 27, 1980, art. 35, 1155 U.N.T.S. 331, 341; see also Simma, supra note 111, at 196 (stating that "Article 35 [of the Vienna Convention] requires that a third state expressly accept such an obligation in writing.").
. Under the two general duties of international law of environment, the preservation of Antarctica from substantial contamination shall bind third states. These two duties are: to prohibit trans-boundary environmental interference and to cooperate by the States in the duty of preventing and abating trans-boundary environmental interference. See L. Pineschi, The Antarctic Treaty System and General Rules, in, International Law for Antarctica 187, 188 (F Francioni and T Scovazzi eds., 1987).
. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982; see also Francisco Orrego Vicuna, The Law of the Sea and the Antarctic Treaty System: New Approaches to Offshore Jurisdiction, in The Antarctic Legal Regime 97, 102 (Christopher C. Joyner & Sudhir K. Chopra eds., 1988).
. Donald R. Rothwell, Antarctica and International Law, in Public International Law: An Australian Perspective 382, 402 (Sam Blay, Ryszard Piotrowicz & B. Martin Tsamenyi eds., Oxford University Press 1997).
. Lugten, supra note 49, at 405. The 2001 South Tonne seizure of the illegally caught Patagonian Toothfish resulted in $1.6 million being paid into the Australian consolidated Revenue. However, the cost of the Southern Supporter Patrol vessel, and Navy's operations to intercept and seize the South Tonne must have balanced this gain. See Human Society of Canada, Protecting Animals and the Earth 2004: A Special Report by the Human Society of Canada (HSC) available at http://www.humanesociety.com/pdfs/YER2004.pdf; J. Topsfield, $88M to Bait Hook for Illegal Fishermen, in The Age, available at http://www.theage.com.au/news/national/88m-to-bait-hook-for-illegal-fishermen/2005/10/11/ 1128796526608.html; Call for Early Result on New Patrol Boats, in Navy News, available at http://www.defence.gov.au/news/navynews/editions/2001/08_06_01/story09.htm.
. Ian E. Nicholson, Antarctic Tourism – The Need for a Legal Regime?, in The Antarctic Treaty System in World Politics 415, 423 (Arnfinn Jorgensen-Dahl & Willy Ostreng eds., St. Martin's Press 1991).
. They are, inadequate monitoring, control and surveillance, shifting IUU fishing activity outside where licensed vessels operate, toothfish stocks have become depleted; reflagging fishing vessels to flags which are not parties to the CDS, impact of CCAMLR conservation measures and monitoring of the world trade in toothfish. See supra note 48, at Annex 5, para 2.2.
. George L. Levanthall, National Science Foundation in the FY 2005 Budget, in AAAS Report XXVII: Research and Development FY 2003 Pt. II, Ch.7 tbl.II-7, available at http://www.aaas.org/spp/rd/rd03main.htm.
. Olav Schram Stokke & Davor Vidas, Conclusions, in Governing the Antarctic – The Effectiveness and Legitimacy of the Antarctic Treaty System 432, 435 (Olav Schram Stokke & Davor Vidas eds., 1996).
. Antarctic Treaty Secretariat Newsletter, vol. 1, No. 1 (Scie. Committee on Antarctic Res., Cambridge, U.K.), available at http://www.scar.org/treaty/atnewsletters/2005/Newsletter_1-English.pdf.
. Sally Lentz, Effective Legal Mechanisms for Protection of the Antarctic Environment, in Greenpeace International, A Realistic Dream for Antarctica – Background for an Eighth U.N. Debate at 3 (1990); cited by Welch supra note 66, at 629.
. Nigel David White, The United Nations System: Conference, Contract or Constitutional Order?, 4 Sing. J. Int'l & Comp. L. 281, 291 (2000); see also Jose E. Alvarez, Legal Remedies and the United Nations A La Carte Problem, 12 Mich. J. Int'l L. 229, 261-62 (1991) (discussing U.N. financing in light of legalistic and realistic treatment by its members).
. Ali Khan, The Extinction of Nation-States, 7 Am. U.J. L. & Pol'y 197 (1992); John O. McGinnis, The Decline of the Western Nation State and the Rise of the Regime of International Federalism, 18 Cardozo L. Rev. 903 (1996); John W. Head, Throwing Eggs at Windows: Legal and Institutional Globalization in the 21st-Century Economy, 50 U. Kan. L. Rev. 731 (2002).
. Such as the International Monetary Fund, the World Bank, and the World Trade Organization. See Lee A. Travis, Corporate Government and the Global Social Void, 35 Vand. J. Transnat'l L. 487, 503 (2002).