International Law on Antarctic Mineral Resource Exploitation
Table Of Contents
- About the author
- About the book
- This eBook can be cited
- A. Antarctic Geography
- B. Mineral resource
- C. The climate
- D. Life in the Antarctic
- Part 1: The Antarctic Treaty
- A. Sovereignty Claims of Seven States
- I. The United Kingdom
- II. New Zealand
- III. France
- IV. Australia
- V. Norway
- VI. Argentina and Chile
- VII. Non-claimant States’ activities and attitudes
- B. Territorial Acquisition in International Law
- I. Categories of Territorial Acquisition
- II. Occupation theory in the Antarctic Territorial Issue
- C. Maritime Zones in the Antarctic
- I. Territorial Sea
- II. Exclusive Economic Zone (EEZ)
- III. High Seas and Article VI of the Antarctic Treaty
- IV. Antarctic Continental Shelf
- V. Conclusion
- D. Options for a Potential Minerals Regime
- I. National Regime
- II. Open Use Regime
- III. Condominium
- IV. Moratorium
- V. Common Heritage Model
- E. The Antarctic Treaty and Antarctic Treaty System
- I. The Antarctic Treaty
- II. Antarctic Treaty System
- Part 2: CRAMRA
- A. Background
- I. Preface to Mining Negotiations
- II. Negotiations of Antarctic Mineral Resource Regime
- B. General Provisions
- I. Objectives and Principles
- II. Area of Application
- III. International Participation
- IV. Compliance
- V. Liability
- VI. Inspection and Protected Areas
- C. Institutions
- I. The Antarctic Mineral Resources Commission
- II. The Scientific, Technical and Environmental Advisory Committee
- III. The Special Meeting of Parties
- IV. The Regulatory Committees
- V. The Secretariat
- VI. Financial provisions
- VII. Conclusion
- D. Operational Provisions
- I. Prospecting
- II. Exploration
- III. Development
- E. Dispute Settlement
- F. Interests Accommodated in the Negotiation Process
- I. Internal Interests
- II. External Interests
- III. Protection of Environment and Mineral Resource Activities
- G. Responses to CRAMRA
- I. The UK’s Antarctic Mineral Act
- II. Attitude of the International Community toward Antarctica
- III. Period Following Refusal of Australia and France to Sign CRAMRA
- Part 3: CRAMRA – A Dead Convention?
- A. Critiques of CRAMRA
- I. CRAMRA, a Disaster or a Protector of the Environment?
- II. Lack of Clear Terminology
- III. UN-International Participation
- IV. Inadequate Protection of Developing States
- V. Disposition of Surplus
- B. Merits of CRAMRA
- I. CRAMRA and the Reconciliation of Internal Tensions
- II. CRAMRA and Part XI of UNCLOS
- III. CRAMRA and the International Community
- C. Underlying Reasons
- I. Political reasons
- II. Economic and Technological Reasons
- D. CRAMRA and the Environmental Protocol
- I. Background
- II. Mining Issue
- III. Principles
- IV. Environmental Impact Assessment
- V. Responsibility & Liability
- VI. Institutions, Inspection & Dispute Settlement
- E. Influence of CRAMRA on the ISA
- I. Impacts on Environmental Protection
- II. Impacts on Institutions
- III. Impacts on the Phases of mining activities
- IV. Impacts on Confidential Nature of Date and Information
- Part 4: Protection of the Antarctic Environment and Ecosystem
- A. Management of Antarctic Living Resources before the Protocol
- I. Antarctic Treaty
- II. International Convention for the Regulation of Whaling
- III. Agreed Measures for the Conservation of Antarctic Fauna and Flora
- IV. Convention for the Conservation of Antarctic Seals (CCAS)
- V. Convention on the Conservation of Antarctic Marine Living Resources
- B. The Protocol on Environmental Protection to the Antarctic Treaty
- I. General Rules
- II. Prohibition of Mining Action
- III. Environmental Impact Assessment (EIA)
- IV. Implementation of the Protocol
- V. Evaluation of the Protocol
- C. Conclusion
- Part 5: Exploitation of Antarctic Ice
- A. Legal status of Antarctic Ice
- B. Relevant Regimes for the Exploitation of Antarctic Ice
- I. UNCLOS
- II. Antarctic Treaty System
- III. Common Heritage of Mankind
- C. Exploitation of Antarctic Ice
- I. Recommendation XV-21
- II. CCAMLR
- III. The Madrid Protocol
- IV. The Precautionary Approach
- D. Conclusion
- Summary of Study
- Table of Cases
- International Treaties
- UN Documents
- ATS Documents
Antarctica is a huge continent with an area of about 136,600,000 square kilometres1, and a coastal line of approximately 14,000 miles.2 The Antarctic consists of a polar continent surrounded by an ice-covered ring of ocean waters in which lie scattered islands group, some polar, others sub-polar in character.3 Except for a small part of the peninsula and the archipelagoes immediately around it beyond 65°S, almost the entire Antarctic continent lies within the Antarctic Circle (John S. Cumpston said 66°30’S, Roberto Bargagli said 66°33’S4).
It was Nordenskjöld, in 1903, who first divided the Antarctic into West and East parts in order to facilitate research. According to his method, the Antarctic continent is divided by a line running along the western boundary of the Ross Ice Shelf, north of the Horlick Mountains and the Pensacola Range, and along the eastern edge of the Filchner Ice Shelf.5 Generally speaking, the part south of Australia, Africa, and the Indian Ocean is East Antarctica, and the part of the continent lying south of the Americas constitutes what is referred to as West Antarctica.6 East Antarctica is generally extended beyond the limits of the eastern hemisphere to include the geographic pole and a portion of land extending up to the great Antarctic Horst7, and comprises the Trans-Antarctic Mountains, a large mountain range stretching for 3,500 kilometers from Victoria Land to the Pensacola Mountains, an extremely ← 15 | 16 → compact land mass that contains the centre of gravity of the continent8. In general, East Antarctica is characterized by narrow coastal strips and steep slopes rising sharply to the high Antarctic plateau. This area has an average elevation of about 2,300 meters. Western Antarctica comprises Marie Byrd Land, Ellsworth Land and the Antarctic Peninsula. The western part is only half as large as East Antarctica, and although its average elevation is about 850 meters, lower than its neighbour part, it does contain the highest peak in Antarctica, the Vinson Massif (4,897 meters). The Antarctica Peninsula constitutes a narrow north-south mountain range with an average width of 70 kilometres and a mean height of 1,500 meters.
The heavy dome of snow and ice that covers more than 98% of the Antarctic is its chief characteristic. The ice sheet is up to 4,500 km wide, with an area of about 12.09 million square kilometres, making it the greatest land-locked water mass on Earth. The ice and snow over East Antarctica rises toward the centre to above 3,962.4 meters in elevation, by contrast, the ice dome of West Antarctica is estimated at less than 3,048 meters in height.9 The larger thicker East Antarctic Ice Sheet is resting on land which is mostly above sea level, giving it its terrestrial classification,10 and the mean elevation of bedrock in East Antarctica is 15 meters11. On the other hand, the smaller, lower elevation West Antarctic Ice Sheet is considered a marine ice sheet because the mean elevation of the bedrock on which it rests12 is 440 meters below sea level.13
Ice plays and has played an important role on our planet. It affects global climate and patterns of weather and ocean currents in the Southern Hemisphere, as well as contributing to the land and water masses as we currently know them. There are two huge bodies of water around the Antarctic continent, one is the Ross Sea, and the other is the lager Weddell Sea. The Ross Ice Shelf is the biggest flat-lying shelf ice about 500 miles wide east and west by 400 miles north and south. This sheet averages perhaps 600 and 1000 feet in thickness. It grows seaward at an average rate of about four feet per day and cyclically breaks back corresponding amounts once or twice a century.14 ← 16 | 17 →
Frank Wild was the first person to discover coal resources close to the upper Beardmore Glacier during Schackleton’s 1907–1909 expedition.15 However, considering the long distances and high cost of exploiting this resource, compared to the relative availability of world mineral reserves, it was not until the 1970s and 1980s that the potential mineral resources of Antarctica began receiving more and more attention. Several oil companies carried out exploration during the 1970s16 and claimed the mineral wealth of Antarctica. What and how many kinds of mineral resources does the Antarctic have? Unfortunately, this data is only speculative, based on superficial continental comparisons without adequate knowledge of geological environments and processes.17 According to the hypothesis of tectonic plate theory, which emphasizes the relationship to formerly juxtaposed continents, the location of zones of economic resources on the once adjacent continents can be used in attempting to predict where similar zones might occur in Antarctica.18
It is therefore thought that petroleum occurs in thick sedimentary rock sequences, i.e. the Antarctic continental margins including the Ross Sea, Weddell Sea, and Prydz Bay adjacent shelves. There are 21 onshore and offshore sedimentary basins in Antarctica19, at least 7 of these are considerable in size20. St John estimated the total potential to be 203 billion barrels of oil equivalent21, however, these estimates are treated as meaningless22. Much additional research and drilling would be required to make reasonable assessment of potential petroleum resources. ← 17 | 18 →
Coal occurs throughout many locations of the Transantarctic Mountains as part of the Beacon Supergroup23, and in the Prince Charles Mountains. Because of a high content of ash and moisture, the coal is normally thin, lenticular, and discontinuous. It has not yet proven economical to explore the coal in Antarctic.
Iron is thought to exist mainly in the Prince Charles Mountains, particularly at Mount Ruker, although the low iron content and distance from the coast has made exploration of these reserves uneconomical.
Copper has been found in the Antarctic Peninsula. In inland Pensacola Mountains, the Dufek Intrusion has been revealed to contain a variety of minerals, mainly platinum and chromium. It extends over an enormous area, perhaps 50,000 square kilometers.24 Mineral nodules, also called manganese nodules, are scattered in the Pacific sector of the Southern Ocean and contain iron and manganese with some copper, nickel and cobalt25. These have also not yet been explored due to their low metal content.
Icebergs as a mineral are a source of fresh water for arid regions of the world. The estimate annual yield of icebergs in Antarctica is of the order of 1000 km³.26 The Scientific Committee on Antarctic Research (SCAR) report: Possible Environmental Effects of Mineral Exploitation in Antarctica points out: “…Theoretically, icebergs could be floated to any point accessible by water route with minimum depths of 200m. …“ However, there are still uncertainties and problems regarding the stability of towed icebergs, insulation and protection from melting and wave erosion, and processing at destination points.27 ← 18 | 19 →
Antarctica is the coldest continent in the world.28 The maximum surface air temperatures of the Antarctic is about -30°C on the plateau and -4°C at coastal locations, and the minimum happens in July or August -70°C on the plateau and -25°C at the coast.29 In July 1983, at Vostok on the polar plateau, the world’s coldest temperature was recorded with -89.5°C. Another feature of the climate is the short summer, only 6–8 weeks happening around the beginning of January. There are several reasons for the cold weather in the Antarctic. As the 23.3° inclination of the Earth’s axis of rotation in relation to the plane of its orbital axis round the sun, there is a long period of polar night in Antarctica. Even during the polar day, it receives much less radiation than other parts of the world because of the curvature of the earth. Moreover, most of the solar radiation (80–90%) in Antarctic continent is reflected out into space by the mass mirror-like ice sheet, which means a large amount of radiation in Antarctica is not absorbed at all.30 Finally, the high average altitude (2,300 meters) is another main contributing factor to Antarctica acting as one of the largest heat sinks on earth. The cold waters of Southern Ocean, the variable sea ice cover and the high continental ice sheet not only affect the climate of Antarctica, but also give Antarctica a very important role in the global climate system31.
The Southern Ocean is characterized by two wind-driven currents, which result in the circulation of cold water around the continent. The mixing of this cold water with warmer sub-Antarctic water at the Polar Frontal Zone produces a zone of great temperature and salinity gradients in the ocean. The winter advance of the sea ice effectively doubles the ice-covered area of the Antarctic region and further reduces temperatures by increased albedo effects.32
Sea ice which could reflect radiation into space is one of the main factors determining variations in the Antarctic climate. Besides increasing albedo, sea ice reduces heat fluxes between the atmosphere and sea, exchanges salt with the ocean, and water evaporation during the winter.33 Sea ice modifies the seasonal temperature circle, delaying cooling of the atmosphere in autumn by the release of “latent heat” as an increasing amount of water becomes ice, and having the reverse effect during ice-melt in spring.34 At the end of summer, the formation of sea ice involves the release of dense, brine-rich waters, determining the formation of cold deep waters. These cold waters influence global oceanic circulation, because the generally ← 19 | 20 → divergent flow around Antarctica modifies both the concentration of salt and heat in the ocean by the net flow of ice towards the equator.35
In short, changes to the extent, thickness, persistence and annual distributions of sea ice affects the climate of Antarctica and consequently global atmospheric circulation, the exchanges of energy, the transfer of momentum between atmosphere and ocean, and the vertical mixing and salt balance in the ocean.
As to the effect of these ice sheets on global sea level – the maintenance of the ice sheets relies on the balance between snowfall over the continent and the rate of ice discharge in the Southern Ocean. This balance strictly depends on temperature, the extent of sea ice, and water evaporation in the Southern Ocean, which affects the transport of heat, air masses and precipitation from mid-latitudes. Changes of a few percent in the total volume of ice would affect the volume of the world’s oceans. The West Antarctic ice sheet contains enough ice to raise global sea level by about 6 meters.36 If the whole Antarctic ice sheet melted, sea level would rise by about 73 meters.37
In the early twentieth century, scientists believed that the vast area of inland ice and the extreme cold climate brought about uniformity of life in the Antarctic. They wrote that in the Antarctic “everywhere there are the same birds, especially penguins, everywhere there are the same few species of seals and whales in the sea and on the ice, moreover, in the Southern Ocean, great seasonal fluctuations in the ratio of open to ice-covered sea, with minute algae, krill and other invertebrates, fish, birds, seals, and whales forming relatively short food chains.”38 However, with the rapid development of research in the Antarctic, more and more species have been found in this “cold desert”.
The Penguin family is widely distributed in the cooler waters of the southern oceans. Almost every Antarctic and sub-Antarctic island has more than one resident species. The largest concentrations and greatest numbers of species occur in the cold temperate, sub-Antarctic and Antarctic waters. There are seventeen different species of Penguins, four of these – the Emperor, Adelie, Chinstrap and Gentoo – breed on the Antarctic mainland. Most of the others live on rocky islands in the Antarctic Ocean. The principal species are the Emperor Penguin, the King Penguin, and the Adelie Penguin.39 The Emperor Penguin, which prefer the cold, are found in South Victoria Land and East Antarctica, but not in the northern part of West ← 20 | 21 → Antarctica. It broods in mid-winter, in the coldest part of the Antarctic, and not on the land but on the sea ice. The habitat of the King Penguin is located north of the Antarctic Circle, and the Adelie penguin is most frequent along the border of the Antarctic Continent.
Besides the well-known penguins, there are many other seabirds in the Antarctic. The largest group of seabirds in the Antarctic is the petrels. The smallest is the storm petrel, weighing one to two ounces; it feeds at sea, folding its wings vertically, giving it the appearance of walking on water. The largest is the albatross, which can weigh up to 21 pounds and have a wing span of 12 feet. It can remain at sea for months as it sleeps on the water and drinks sea water. It can fly at speeds of 60 mph and with a favorable wind may reach speeds as great as 100 mph. The Arctic tern travels from the edge of the Arctic Ocean to the pack ice of Antarctica, a distance of some 22,000 miles, in order to flee the northern Arctic winter to enjoy a brief Antarctic summer. Additionally, there are gulls, cormorants, fulmars, and shearwaters and skuas.
Seals40 normally live in pack ice. There are six species of seals in the Antarctic. Five of these species are true, or earless seals, without external pinnae. These are Elephant, Crabeater, Weddell, Ross, and the Leopard Seal. The sixth species is the Southern Fur Seal, which belongs to the sea lion family – the group of seals with external ears. The Elephant Seal seldom visits the Antarctic coasts and has already been almost exterminated by ruthless slaughter on the sub-Antarctic islands. The Crabeater Seal lives in the pack ice during winter and summer and occasionally reaches sub-Antarctic latitudes. It appears to be semi-migratory in relatively great numbers, living almost exclusively on pelagic shrimp. The Weddell Seal is more southern in distribution than the Crab-eater Seal, and its range is confined predominantly to the fast-ice along the coasts throughout the year. It feeds on fish and cephalopods. The circumpolar Ross Seal is the rarest species. It inhabits the pack-ice belt, is solitary in its habits, and appears to confine itself to the southerly parts of the area, being unknown in the northward of the pack ice. Its diet is probably fish and cephalopods. The Leopard Seal has a rather broad latitudinal range, and is found from the shores of the Antarctic Continent northward to parts of the temperate zone. It is semi-migratory, solitary in its habits, and is relatively widespread, but scarce. This aggressive seal preys on other seals and penguins, as well as on fish and cephalopods.
Whales are mammals who swim thousands of miles from other oceans to visit the Antarctic seas, for the abundance of krill and fish. There are two types of whales: baleen whales and toothed whales. Baleen whales live on krill which they “filter” through baleen plates in their mouths. The most common baleen whales found in the Antarctic are the Blue, Fin, Humpback, Minke, Sei, and Southern Right Whale. The toothed whales have small peg-like teeth and eat mainly fish. The Killer whale ← 21 | 22 → and the Sperm whale are the only toothed whales found in the Antarctic region. The Killer whale eats small penguins which it hunts by tipping them off ice floes.
Approximately 100 species of fish live in the Southern Ocean south of the Antarctic Convergence, where the colder water meets the warmer water.
Besides varied animals, there are also different plants in the Antarctic.41 Two species of flowering plants occur on the Antarctic Peninsula.42 Not a single flowering plant has been found within the Antarctic continent. Grasses do not occur south of latitude 62°S43. The flora of continental Antarctica comprises 15 species of mosses44, one species of liverwort45 and at least 88 taxa of lichens46. Eight species of moss have been recorded from southern Victoria Land and Ross Island.47 Algae color the snow; they also occur on damp ground and in water, especially in the sea. These number about four hundred species in the Antarctic and sub-Antarctic.
This list of data serves to provide an initial impression of the Antarctic. The huge ice layer and severely low temperatures have not impaired humankind’s enthusiasm for exploring the Antarctic. The predicted resources to be found in the Antarctic is drawing international society’s attention and interest particularly as current supplies of food, water and energy are limited, and there has been a great improvement in technology for exploitation in cold weather. Even though there are still some scientific and legal obstacles, it seems likely that Antarctic mineral resources will be exploited at some point in the future.
1 At different times, there are different results for Antarctic data.5,058,356 sq. miles, or 13,101,154 sq. km., according to Kosack, H.P.: “Wie gross ist das Südpolargebiet?”, 94 Petermanns Geographische Mitteilungen 202 (1950), citing Fairbridge, Rhodes W., “The Geology of the Antarctic”, in Simpson, Frank A. (ed.), The Antarctic Today: A Mid-Century Survey by the New Zealand Antarctic Society, (Wellington: A. H. & A.W. Reed and New Zealand Antarctic Society, 1952) at 56.
2 Cumpston, John S. “Introduction the Antarctic”, in Simpson (note 1), at 17.
3 Nordenskjöld, Otto and Mecking, Ludwig, The Geography of the Polar Regions, (New York: The Commonwealth Press, 1928) at 285.
- ISBN (PDF)
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- ISBN (MOBI)
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- Publication date
- 2017 (May)
- Antarctic Treaty System Antarctic mineral exploration CRAMRA Antarctic environmental protection The Protocol on Environmental Protection to the Antarctic Treaty
- Frankfurt am Main, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2017. 274 S.