Long-time environmental campaigner Geoff Mosley and former leader of the Greens Bob Brown will host a forum in Hobart on 17 June to discuss their proposal to seek World Heritage listing for Antarctica. The timing of the meeting neatly and intentionally coincides with Australia hosting the 35th Antarctic Treaty meeting in Hobart.
The motives behind this political push are noble – a desire to see the last great wilderness on Earth symbolically graced with the title “World Heritage” and, by extension, further protected. But there are many reasons to be cautious about taking the comprehensive protection already given to Antarctica out of the Antarctic Treaty System and reopening debate on this question in the United Nations.
In 1989 Australia abandoned the negotiations over the Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), which would have allowed mining on the continent. With France and Spain, Australia embarked on a successful campaign to have the Antarctic continent comprehensively protected. The Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) commits Parties to the Antarctic Treaty “… to the comprehensive protection of the Antarctic environment and dependent and associated ecosystems”.
Bob Hawke, when Australia’s Prime Minister, went against the majority of his Cabinet ministers to overturn Australia’s support for the minerals convention. He used his friendship with French Prime Minister Michel Rocard to build the international momentum needed to negotiate the Protocol. The hard-fought battle to adopt the Madrid Protocol had wide public and political support, and the comprehensive nature of the protection it gives to Antarctica, including the ban on mining, is testament to this support and the commitment of Antarctic Treaty parties to preserve this continent.
In that intense international debate, many models for protecting Antarctica were canvassed. Equally as many labels were used to give proper recognition to Antarctica’s environmental values - labels like “world wilderness park”, “natural heritage preserve” and “global ecological preserve”. But throughout the debate there was no prospect of consensus around “world heritage”. The debate was had, the matter settled: Antarctica was designated “a natural reserve, devoted to peace and science”. A unique solution for a unique place. Antarctica was protected. Mining was banned.
It seems curious to me, then, given the current status of Antarctica, why a political campaign would seek to reopen the question of Antarctica’s protection - a move which could quite easily renew debate on mining in the Antarctic. Bringing the question of Antarctica back into the United Nations framework is fraught with many dangers. Here are the political and legal reasons why.
Common heritage of mankind
Debates in the UN on the “question of Antarctica” began in the early 1980s, during the Antarctic Treaty negotiations over CRAMRA. They continued long after CRAMRA had been abandoned and replaced with the prohibition on mining in the Madrid Protocol. These debates promoted the view that the Antarctic Treaty was an “exclusive club” and that the United Nations was better placed to deal with Antarctic matters.
The language of the debates in the UN centred around the phrase “common heritage of mankind”. To paraphrase this view, Antarctica should not be governed by a club because it is the common heritage of humanity.
But the Antarctic Treaty System is not exclusive: any member of the United Nations can become a party to the Antarctic Treaty (and to the Madrid Protocol), commit to the comprehensive protection of the Antarctic continent, and be bound by the decisions of its bodies. Malaysia recently became a Party to the Antarctic Treaty and is moving to become party to the Madrid Protocol. In March this year Pakistan, once a hardened objector to the Treaty system, also acceded to the Treaty and to the Madrid Protocol. Thus support for the Treaty continues to grow, even from its previous critics.
The “common heritage of mankind” label was the vehicle for the political debate in the UN, but related to this concept is the notion of “areas beyond national jurisdiction”. These are areas outside the control of a nation, such as the high seas. The Antarctic Treaty set aside conflicts over territorial claims in Antarctica and established the political and legal framework to deal with the continent as a whole. The United Nations has no mechanism to deal with these issues, and what the United States and the then Soviet Union were able to agree in the Antarctic Treaty could never have been agreed in the UN.
World Heritage listing does not prevent exploitation
The World Heritage Convention makes no specific provisions prohibiting certain activities. The Convention provides for the listing of World Heritage properties. It is up to the nation state that owns the property to regulate activities and make laws to allow or prohibit activities in the property.
In Australia, for example, there have been long standing controversies about uranium mining and the World Heritage listed Kakadu National Park. The Ranger and Jabiluka uranium mining leases are not part of Kakadu National Park, but lie within its greater boundaries, surrounded by, but not included in, the World Heritage area. The laws that protect Kakadu and regulate mining are domestic.
It is not possible to nominate Antarctica for World Heritage listing.
The World Heritage Convention allows only that a Party to the Convention nominate its own property (that is a property on its own territory, belonging “primarily to that state”). There are seven nations which claim territory in Antarctica – Australia, Argentina, Chile, France, New Zealand, Norway and the UK. Three of these claims overlap (UK, Chile and Argentina) and there is a large section of Antarctica which is unclaimed.
Many nations do not recognise any Antarctic territorial claims and they would object to any of the claimants, or the claimants collectively, putting forward a nomination for World Heritage listing for claimed areas of Antarctica. No Party or Parties could nominate the unclaimed part of Antarctica because it is not “situated on its territory”. A successful world heritage nomination would be tantamount to recognition of the claims – something that many non-claimants are very unlikely to accept, even though they fully support the environmental protection objective.
What would the political end game look like
The current situation is that it is not possible to list Antarctica on the World Heritage list without amending either the World Heritage Convention or the Antarctic Treaty or both. There will be no political appetite to open the Antarctic Treaty for renegotiation. Why reopen the questions of sovereignty and territorial claims, the demilitarised nature of the continent, and its nuclear-arms-free status? It is highly unlikely that all of the provisions of the Antarctic Treaty, including those that protect territorial claims, could have been negotiated in this century.
There would also be strong opposition from many Antarctic Treaty parties to reopening debate on the “question of Antarctica” in the United Nations, even through the guise of the World Heritage Convention. A symbolic World Heritage title will not provide any additional protection to the continent over that already provided by the Madrid Protocol.
Most importantly, any opening of debate on the status of Antarctica in the United Nations will provide a vehicle for debate on whether Antarctica is “an area beyond national jurisdiction”. With this could come discussion of “access to resources” and “benefit sharing” - including mining. Reopening this debate is not the way to ensure the continued comprehensive protection of our planet’s last great wilderness.
Are we really saying after all these years that Hawke and Rocard got it wrong?