If Antarctica had a voice, what would it say to oil boss and COP28 President Sultan Al Jaber, who told Mary Robinson, a climate advocate and Ireland’s former president, that there was “no science” to phasing out fossil fuels “to achieve 1.5C”? 

One’s imagination can run wild. Yet, the cold, hard truth is that Antarctica lacks a sovereign voice in decision-making that impacts its fate, say 25 polar and environmental experts who have launched a campaign at COP28 to act as the icy region’s legal eagle.

The prominent South African lawyer Cormac Cullinan of Cullinan & Associates and the Wild Law Institute is one of the campaign brains. Cullinan’s landmark action helped suspend Shell’s seismic surveys off the Eastern Cape Wild Coast last year. 

And one only needs to look at 2023, a polar annus horribilis, to understand why the initiative may be overdue:

• This year, we learnt from frontline scientists that sea-ice lows may have hit a new normal. With business-as-usual, Antarctic currents would likely weaken within 30 years, damaging marine ecosystems across the planet.
• The region — famously Earth’s coldest, highest, driest and windiest — faces intensifying geopolitical interests and commercial exploitation.
• And, as COP28 kicked off last week to fears of a Big Oil schmooze, the British Antarctic Survey’s Dr Peter Fretwell released satellite images that suggest early ice break-up could drown another 10,000 or so emperor penguin chicks — which is what happened during COP27.

The first emepror penguin colony to suffer early sea ice break-up this season looks like Smith Peninsula in the Weddell Sea. Ice broke up in late Sept, refroze then broke again. There was sign of penguins at the end of the month, but any sign of them was gone by early Oct. pic.twitter.com/5Ze9eHKniI

— Peter T Fretwell (@PeterTFretwell) October 13, 2023

Launching their draft declaration on 1 December, the traditional date for Antarctica Day, the group say they want to establish sweeping rights for the entire frozen continent, the Southern Ocean and its seabirds, seals, whales and other species.  

Violate a delicate wilderness hanging on by a thread, and the group say they will drag you to court. In other words, the draft version of the “Antarctica Declaration” seeks to treat the region as a human being with rights.

Although the campaign naturally poses significant practical hurdles, the declaration aims to effectively ensure legal representation for about 10% of the planet, which acts as a global refrigerator by reflecting sunlight. 

Read more in Daily Maverick: COP28 news hub

But what about the Antarctic Treaty?

Hailed as a benchmark diplomatic coup, the Antarctic Treaty System (ATS) already devotes the region to demilitarisation and scientific fieldwork through 29 states including the US, China and South Africa.

Thanks to the 1959 Antarctic Treaty, the bedrock of the ATS, we keep making magnificent discoveries about this extraordinary ecosystem of ice that has never been tainted by the blood of war.

Yet, the agreement was signed when its 12 founding states had little idea that most lethal risks like planetary heating would arise outside Antarctica. 

At closed meetings (an “ice curtain” as some call it), decision-maker powers such as China and Russia spoil key marine protections, while criticism by activists with exclusive access has been described as “timid”. 

Last year, a group of A-list scientists said a Southern Ocean fishing moratorium may be necessary because the region is under threat from only a few industrial actors. And Rosgeo, the Kremlin’s mineral explorer, keeps returning to a continent under a minerals ban, praising its oil and gas potential and arguing that it’s legal scientific research. There’s also that changeable boomer ban, gifting the 2048 generation with the opportunity to renegotiate it when they may already have a few other things on their plate. 

“One of the successes of the ATS has been its promotion of collaborative research and the protection of Antarctica as an area within which such research can take place,” says the draft declaration’s explanatory memorandum. “However some research being undertaken within the Antarctic Area (e.g. seismic surveys to locate oil and gas deposits) seem motivated by considerations that are contrary to the aims of the ATS and Antarctica’s best interests.”

Draft supports science, economic activity

The group say the proposed declaration would hold all states, corporations and individuals to political and legal account. 

For anyone perturbed by watching the undoing of the final frontier, the initiative will probably have a nice ring of poetic justice to it. But how does one even begin to represent the infinitely complex legal interests of a 35 million square kilometre-sized client on life support? 

Among others, the draft declaration requires each state to: 

• “Take legislative and other measures to transform relevant domestic, transnational and international law and practice;
• Recognise and respect the legal status of Antarctica;
• Enable Antarctica and Antarctic beings to be effectively represented in human decision-making that may affect Antarctica.”

The draft equally recognises the unfenced Antarctic’s ability to regulate itself while maintaining “the right to have people investigate, monitor and communicate impacts” that adversely affect its well-being. 

Therefore, science retains a key role. There is also a place for “harmonious” economic activity such as well-regulated tourism, and even “human predation”, such as fishing — as long as none of this has a “significant adverse impact on populations or ecosystems”. 

“The rights and freedoms of Antarctica and each Antarctic being are limited by the inherent and inalienable rights of other beings (including human beings),” the draft declaration acknowledges, “and any conflict between those rights must be resolved in a way that supports the integrity, functioning and health of Antarctica and the Earth Community”.

Complementing, not replacing, the ATS

Cullinan, the South African lawyer who played a pivotal role in finalising the draft, is based in Cape Town, one of five official Antarctic gateway cities together with Christchurch, Hobart, Punta Arenas and Ushuaia. Collectively, his fellow drafters hail from about 17 countries — most of which also happen to be Antarctic Treaty decision-making, or consultative, states. 

While the group have the goliath task of convincing states to adopt the declaration when it is formalised, one of their hopes is that Antarctica would also get a seat at climate negotiations like COP28. 

The SA Agulhas I, South Africa’s former polar research vessel, sails through sea ice off East Antarctica. (Photo: Tiara Walters) 

“Recognising that Antarctica has fundamental legal rights establishes a standard for holding states, corporations and individuals legally accountable if they act in ways that infringe those rights,” says Cullinan. 

“Once final, the declaration will define those rights and the corresponding human duties to ensure they are upheld. This will guide the development of laws, policies and institutions necessary to ensure that the declaration is given effect to, and help ensure that people worldwide do not act in ways that harm Antarctica.”   

Later today, the #Antarctic #IceCurtain will come down again. The 43rd @Antarctic_Treaty meeting will open, virtually, but the public will be shut out of deliberations. An entire continent, of rising importance to our common future, gets governed behind closed doors. In 2021. pic.twitter.com/J7Nh2I2jRf

— Andrew Darby (@looksouth) June 14, 2021

The ATS, the suite of agreements governing Antarctica, has been tightly guarded by some of the world’s most influential states over more than six decades. 

Its current execution leaves immense room for improvement, but it would be naïve to imagine that it could, or even should, be easily renegotiated or replaced, the group insist.

Dr Yelena Yermakova, a US-based governance researcher who forms part of the rights group, says they recognise the achievements of the ATS and have no desire to substitute a treaty system that would be largely impossible to renegotiate in today’s contested global geopolitical theatre.

“My work has never really focused on abolishing the ATS, but rather reforming it,” says Yermakova, a Fung Global Fellow at Princeton University studying the legitimacy of global institutions such as the UN Framework Convention on Climate Change. “Once we have institutions, especially the ones that have been successful in some aspects, it’s just more practical to try to work with existing structures.” DM