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Antarctic Treaty System skating on thin ice — now is the seventh continent’s eleventh hour


Lesai Seema is an associate at environmental law firm Cullinan & Associates for the Wild Law Institute, which advances and defends the Rights of Nature.

Antarctica is fast deteriorating as a result of increased activity. A Rights of Nature approach applied to the continent proposes a next-level governance framework to help preserve the delicate balance between progress and preservation. 

Throughout history, few places have captivated the imagination of scientists, adventurers, and heads of state like Antarctica. Covered with approximately 98% ice, it is one of the most pristine and least modified environments left on Earth. With an average temperature of -49°C, it is the coldest place on Earth, and its impact on the world is significant.

Antarctica’s environment helps to, among other things, regulate the planet’s climate and ocean currents, making it a crucial part of the Earth’s ecological system. The continent hosts a wide range of diverse flora and fauna, many of which are found nowhere else on the planet. It is a geological wonder and its importance to the planet cannot be overstated. 

Australian geologist Sir Douglas Mawson, who led the first Australian research expedition to Antarctica described it thus: 

“The tranquillity of the water heightened the superb effects of this glacial world. Majestic tabular bergs whose crevices exhaled a vaporous azure; lofty spires, radiant turrets and splendid castles; honeycombed masses illumined by pale green light within whose fairy labyrinths the water washed and gurgled. Seals and penguins on magic gondolas were the silent denizens of this dreamy Venice. In the soft glamour of the midsummer midnight sun, we were possessed by a rapturous wonder — the rare thrill of unreality.” 

Although categorised as pristine and undisturbed, the “glacial world” has faced the detrimental effects of human activities. Climate change has caused the rapid melting of the ice sheets while overfishing, tourism, pollution, resource extraction, the threat of mining, conflict between claimant states and other human activities continue to threaten the ecosystems and wildlife.

These changes in conditions have catastrophic repercussions, including inundation and coastal erosion among many others. 

The Antarctic Treaty System 

Fortunately, governments around the world recognised the urgency and severity of these challenges and in turn, took early action to protect and preserve Antarctica’s ecosystems.

Through international cooperation, they were able to introduce a then-unique governance regime made up of a sui generis suite of agreements and measures housed under the Antarctic Treaty System (ATS). The ATS has the Antarctic Treaty (which remains in force indefinitely) as its cornerstone and is reinforced by the Protocol on Environmental Protection to the Antarctic Treaty (also known as the Madrid Protocol).

The rest of the ATS is made up of the Convention For The Conservation of Antarctic Seals, Convention on the Conservation of Antarctic Marine Living Resources and the resolutions taken under these treaties. The main triumphs of the ATS are that it was able to: 

  • Preserve the Antarctic Peninsula, East Antarctica, South Pole, West Antarctica, and the Ross Sea, while simultaneously advancing scientific research (catapulted by the International Geophysical Year);
  • Neutralise all territorial claims;
  • Enrich international law; and
  • Ensure Antarctica would be used exclusively for peaceful purposes, during the Cold War. 

Further initiatives addressing climate change, sustainable fishing practices, and pollution reduction would go on to make key contributions to geoscience and Antarctic interests. 

Antarctic Treaty System on thin ice 

Despite its valiant efforts, the ATS — or at least its rules of engagement — are up for revaluation. The ATS currently is facing genuine institutional integrity challenges and legitimacy concerns. Its critical institutional failures are: 

  • The adverse interests of the global powers and actions by signatories of the conventions are undermining the core of the ATS: peace and science;
  • Territorial claims that still loom over Antarctica are unresolved, and it appears will remain unresolved under the current system for political reasons;
  • Increasing commercial exploitation;
  • Failure to fully incorporate climate change into Antarctic policies. This is due to the fact that the ATS only covers the area south of 60° south Latitude and does not have jurisdiction over activities outside of the treaty area such as the causes of climate change; and
  • Lack of enforcement: a reliance on soft-international law. 

The lack of a genuine international mechanism or vehicle to resolve has many questioning if the ATS is still fit for purpose, the general sentiment is that it is not. A novel solution may be required and simply adding more green laws will not cut it. 

Applying the Rights of Nature to Antarctica 

In this regard, Earth Jurisprudence and Rights of Nature have immense potential in significantly enhancing the preservation of Antarctica’s future and its wildlife. 

These principles propose that the international legal system should not only recognise the inherent value of Nature and safeguard it for its intrinsic worth, but also acknowledge Nature as a legal entity with the ability to safeguard its own wellbeing, including its “right to be cold”.

Embracing these concepts could lead to a substantial improvement in Antarctica’s protection and the conservation of its precious wildlife. 

A Rights of Nature approach applied to Antarctica proposes a significant revaluation of existing policies and practices to align them with a more harmonious relationship between humanity and Antarctica — perhaps by merging these principles alongside truly greening the existing framework of the ATS.

Correctly applied, it would drive a real and ethically binding sense of shared responsibility for the protection and preservation of Antarctica, transcending political and commercial interests.

Simply put, Antarctica should not be a political pawn that can be used, but its own “person” capable of participating in the United Nations, international courts and maybe one day at the “International Environmental Court”.

Unironically, the more rights for Nature we advance, the more we advance human rights — in this particular instance, the right to a healthy environment. Outside of the reasonable argument that this approach is difficult to achieve, it is completely illogical to oppose the principle behind a Rights of Nature approach. 

Emergence of Antarctica Rights 

A working group called “Antarctica Rights” has emerged and aims to create a watershed moment, and by applying Rights of Nature to Antarctica, establish a means for the voice of Antarctica to be heard in human decision-making.

The group draws on existing Rights of Nature governance strategies and is legitimately establishing a rights-based governance system that recognises Antarctica and its surrounding Southern Ocean as a sovereign legal entity with rights that create corresponding duties for humans. The group consists of various legal experts, Antarctic scholars and scientists, and representatives of first nation groups.  

The group is currently developing an Antarctica Declaration that recognises Antarctica’s right to self-determination and representation in decision-making processes, along with the establishment of a global alliance to uphold Antarctica’s rights.

The initiative aims to advance Antarctica’s best interests in international forums and courts. This will largely require a serious re-thinking of the Westphalian state model and enable Antarctica to be recognised as an autonomous, self-regulating entity with inalienable rights. 

Antarctica Rights will hold its first in-person meeting from 5 to 7 August 2023 in the United Kingdom. 

Antarctica is fast deteriorating as a result of increased activity. A Rights of Nature approach applied to Antarctica proposes a next-level governance advancement.

Simply put, Antarctica should not be a political pawn that can be used, but its own “person” capable of preserving the delicate balance between progress and preservation.

As the late Christopher Stone put it: “throughout legal history, each successive extension of rights to some new entity has been, therefore, a bit unthinkable.”

Just as we have put a man on the Moon, let us now entertain the possibility that recognising Rights of Nature to Antarctica is humanity’s next giant leap. DM 

To read all about Daily Maverick’s recent The Gathering: Earth Edition, click here.


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