Kobe PCRC Special Session – Antarctic Treaty System Resilience
12th Polar Law Symposium in Hobart, Tasmania (December 2-4, 2019)
Reported by Jason Thompson1 and Osamu Inagaki2
On December 3, 2019, many polar academics and participants of this year’s Polar Law Symposium held at
the Institute for Marine and Antarctic Studies (University of Tasmania) in Hobart attended the special
session on The Resilience of the Antarctic Treaty System to Future Challenges. This special session wasorganized by Kobe University’s Polar Cooperation Research Centre (PCRC) with the financial support fromJSPS KAKEN-HI and Kobe University Center for Social Systems Innovation (KUSSI). Prof. Akiho Shibata,
Director of PCRC, chaired this special session and explained that the final goal of this resilience study is toproduce a book. The presentations in this session examined different themes that will be featured in thisresearch project.
Dr. Patrizia Vigni, a senior lecturer of international law at theUniversity of Siena in Italy, presented first during the session
and asked if Article IV of the Antarctic Treaty is still suitable forthe governance of the Antarctic seas? She discussed thebifocal approach of the Antarctic Treaty regarding claims.
Article IV states that there should be no further claims inAntarctica, no enlargement of existing claims, and no prejudice
to recognition or non-recognition. In addition, Article VI states
nothing in the treaty shall prejudice rights in the Antarctic highseas. She recognized a number of threats to Article IV including
the declarations of EEZs, submitting extensions of thecontinental shelf, and exercising jurisdiction in state maritime
zones. Furthermore, several external threats also exist like new international actors coming to Antarctica
and the enforcement of other treaty regimes. Regardless of these threats, Article IV has been a successful
regime for the sixty years of the Antarctic Treaty. But with recent regimes like the SDGs and the rights ofnature, states will need to view Antarctica in a different way to ensure that their responsibilities in the region
are met. There is unlikely a better alternative to Article IV according to Dr. Vigni.
Ms. Jill Barrett, a visiting Reader in Law at Queen Mary
University of London, discussed the importance of effective
compliance and enforcement for the long-term resilience of theATS. Ms. Barrett’s main argument was that effective
compliance is vital to the credibility of the ATS. There areexisting provisions to jurisdiction in Antarctica including theprior notification requirement, flagships, and recognizing
nationality on expeditions. There is some variation ofjurisdiction practices in national laws which allows some gaps
and overlaps in implementation. The inadequate means ofenforcement of violations of these gaps is one major issue that1

MSc graduate from KU Leuven in Belgium and his participation was made possible by financial assistance from
Kobe University Center for Social Systems Innovation (KUSSI).
2Researcher, Polar Cooperation Research Centre (PCRC), Kobe University and his participation was made possible
by financial assistance from SCAR and JSPS KAKEN-HI.

1should be examined. There has been discussions of solutions, but not all parties are interested in pursuingthis issue. It is an unsatisfactory situation, and it shows that there is a lack of transparency to the publicregarding jurisdictional issues. One possible solution is the mutual cooperation of law enforcement toensure that issues are dealt with and respect Article IV. A shared framework for making jurisdictionalrequests would also benefit the states as well as the tourism industry. She concluded her argument bystating that the inspection regime proves that parties can cooperate so this cooperation could be extended
to new areas.
Dr. Kees Bastmeijer, a Professor in nature conservation
and water law at Tilburg University in The Netherlands andvisiting scholar at the University of Tasmania (November December 2019), presented next and addressed the topicof Antarctic tourism in the context of the ATS. He notedthat it is important to be positive about the system but alsobe critical. Key aspects of the system should besafeguarded like ensuring peace. He shared a number ofchallenges to the ATS that could affect the system
including activities by outside states, conflicts over large
projects, commercial use that conflicts with science,increase of tourism, increase of infrastructure, amongothers. Looking at tourism specifically, there has been alarge increase in passengers landing on the continent and ships being built over the past decade. In addition,
the length of the tourism season has increased as well as the number of tourism sites. The impacts of theseincreases included a noted lack of monitoring, the introduction of non-native species to the continent,increased emissions, disturbance of wildlife, and increased numbers of accidents. To look at finding
solutions, we must look at decision making within the ATS and the use of consensus within the system.
There is often no consensus which leads to gridlock or ‘non decision-making’. He concluded by listing somepossible explanations for the issues identified including lack of knowledge, no sense of urgency, or atendency to focus on science-based decision making.
Finally, Dr. Zia Madani from the Iranian National Institute for Oceanography And Atmospheric Science inTehran, presented on third states’ presence on the 7th continent. He noted several issues that will becaused due to the presence of third states on the continent that are related to international legitimacy,universal values, decision making, and accession procedures. He went on to detail Article XIII of the ATS
which deals with the designated depositary of the ATS, which should act impartially. He asked what if thedepository was the Secretary-General of the United Nations and what would the advantages & implications
be? Some advantages could include a possible
increase in participating states in the ATS, moving theregime out of ‘isolation’, and accommodating the UN
within the existing ATS legal regime. Also, new players
could be introduced into the system like NGOs andnon-state actors which would lead to new practices
within the regime as well as new interpretations ofnorms & terms. Finally, he posited that new politicalgroupings could form as new actors join the regime.

In the following panel discussion, Mr. Andrew Serdy ofSouthampton University brought up Australia’s 1994

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continental shelf extension claim with respect to making a claim versus an existing entitlement. Dr. Vigni
responded by noting that a claimant state requesting an continental shelf extension may be within theirrights but their behavior should have good faith within the ATS. Following a comment by Dr. Alan Hemmingsof the University of Canterbury, Dr. Barrett commented on a 1992 case between Russia and Uruguay wherejurisdiction was not properly defined after a Russian was murdered. Another question was posed that asked
how can third parties be regulated in Antarctica? Dr. Bastmeijer responded that there should be a newattitude in domestic law and states should establish a stronger net of jurisdiction that tightens the gaps andoverlaps in the current system. Finally, Dr. Tony Press (UTAS) asked for further clarification on the role ofthe depositary in the ATS and why Dr. Mandani thought it should be transferred to the UN. He responded
by saying that according to Article 76 of the Vienna Convention on the Law of Treaties (1969) no conflicts
outside of the treaty should be reflected by the depositary. All conflicts and differences should be put aside
and with current relations between the US and Iran could put this neutrality in jeopardy. He asked for further
discussion on the topic. Finally, Dr. Vigni was asked to clarify the ‘responsibility to protect’. She responded
by saying that the key is ‘responsibility’ because many states do not exercise jurisdiction even though theyshould.

Policy–Law–Science Nexus in Antarctica
In the final session of the day, Dr. Luis Valentín Ferrada of the University of Chile chaired a group ofpresentations that are a part of the PoLSciNex project from the SCAR Standing Committee on theHumanities and Social Sciences (SC-HASS). The goals of this project are to examine the crossover
between law, policy, and science in the context of the Antarctic so that scientific-based decision making isbetter understood by relevant stakeholders.

Dr. Osamu Inagaki of Kobe University’s Polar Cooperation Research Centre (PCRC) and Prof. Gen
Hashida of the Japanese National Institute of Polar Research began the session by examining the legal
complexities of Dronning Maud Land Air Network (DROMLAN) in the context of the Antarctic Treaty System.

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DROMLAN is the air network established by 11 national
Antarctic programs in 2002 that provides inter-continental
flights between Cape Town and Antarctica and intracontinental flights within Antarctica. Dr. Inagaki and Prof.
Hashida identified some of the legal issues that DROMLAN
brings up, particularly in relation to the obligations ofadvanced notice under Article 7(5) of the Antarctic Treaty
and obligation of EIA under Article 8(3) of the Madrid Protocol.
After reviewing the operation of DROMLAN, they examined
two specific cases in which the issues concerning
DROMLAN were discussed by the parties to the AntarcticTreaty. They also examined the recent practice of advanced
notice by relevant parties. As a result of these examinations,Dr. Inagaki and Prof. Hashida pointed out that states had some difficulties in complying with obligations ofadvanced notice and EIA regarding DROMLAN operation. Finally, they concluded that the case ofDROMLAN suggests the necessity to reconsider how to enhance compliance with these obligations tocatch up with modern complex logistical systems.
In the Q & A session, there was a question as to what kind of clarifications Article 7(5) needed. Mr. Inagaki
answered that while existing ATCM decisions on Article 7(5) have elaborated what kind of information to
be noticed under the Article, it is also necessary to clarify which state parties need to give notice especiallyin case of the activities involving private companies.
Ms. Sakiko Hataya and Prof. Akiho Shibata, also from
Kobe University’s PCRC, presented about possible legal
concerns regarding China’s Kunlun Station located at
Dome A in eastern Antarctica. They examined the legal
implications of the proposal made by China in 2013 toestablish ASMA around Kunlun Station. The proposal wasopposed by some consultative parties arguing that theproposal was premature or was inconsistent with theobjectives of ASMA as defined by Annex V of the MadridProtocol. Given the fact that so far 7 ASMAs have been
established without any controversy, the Chinese proposal
is a unique case. On the other hand, Ms. Hataya andProfessor Shibata identified that the Chinese proposal
triggered the discussion on the substantive requirements and designation procedure of AMSA within CEPand ATCM which culminated in the adoption of guidelines for designation of ASMA in 2017. They concluded
that the procedural rules for ASMA designation were clarified with the guidelines and the Kunlun ASMA
proposal did not satisfy the substantive requirements under Article 4, Annex V of Madrid Protocol.
In the Q&A session, there was a question as to what criteria under Article 4 of the protocol Kunlun ASMA
proposal did not satisfy. Ms. Hataya replied that there are no overlapping research programs in Dome A
area in case of Kunlun proposal, unlike existing ASMAs that were intended to avoid conflict of different
research programs. Responding to the question of the difference between the Kunlun ASMA proposal andthe Amundsen-Scott Station ASMA, she answered that the difference lies in the fact that international
scientific programs are proceeding in Amundsen-Scott Station area.

4Dr. Arron Honniball from the National
University of Singapore continued the session
by focusing on the expanding role of nationality
jurisdiction in international fisheries regulation.
In the presentation, he detailed current array of
global instruments and finds that there is nointernationally binding treaty that specificallyimposes an obligation on the state of nationality
to regulate IUU fishing, though the preamble ofPort State Measures Agreement (PSMA)
recognizes the duty of state’s nationality.
However, UNCLOS Article 117 allows forbroader interpretation that the article obliges not
only flag states but also states of nationality totake measures. Article 7 of the Fish StockAgreement also refers to states of nationality,
though some parties attached restrictive interpretive declarations on it. Moving to the examination ofinternational adjudications, Dr. Honniball introduced ITLOS SRCF advisory opinion in 2015 and South
China Sea Arbitration in 2017. In the ITLOS advisory opinion, there were numerous statements submitted
that support the exercise of state nationality jurisdiction and tribunals found that states should takenecessary measures for its nationals. In the South China Sea Arbitration, the award found China’s noncompliance of the obligation to regulate its citizens referring to SRCF advisory opinion. Finally, Dr. Honniball
touched upon the regional efforts to regulate its nationals including CCAMLR.
In the Q&A session, in response to a question about the relevance of the Judgement of ITLOS Norstar
Case, Dr. Honniball answered that the judgement is unfortunate since it does not provide evidence why theprinciple of exclusive flag state jurisdiction extends to prescriptive jurisdiction.
Mr. Jason Thompson, a recent MSc graduate from KU
Leuven in Belgium, finished the session with a presentation
about border changes in the Norwegian Antarctic claim ofDronning Maud Land. He showed that the southern borderof the claim has shifted over time from the inception of theAntarctic Treaty to the present day using published maps
from the Norwegian Polar Institute, a governmentorganization, as well as those used by the national publicbroadcaster NRK. While, from a legal standpoint, thesedocuments are not admissible as evidence for an enlarged
claim, it shows that the spirit of Article IV may have been
violated by the inconsistency of these maps. Mr. Thompson ended by questioning the methods ofenforcement should a more legitimate territorial violation occur and asked the audience to consider thequestion for future discussion.
In the final Q&A session, in reply to the question of whether there are the official documents demonstratingthat these maps are indeed Norwegian government policy, Mr. Thompson replied that these maps have acertain amount of legitimacy even though they are 100% Norwegian policy. There was also a suggestion
to have a look at Norwegian domestic law since domestic law might have a more concrete definition ofDronning Maud Land.

5Conclusion
These two sessions occurred as the Antarctic Treaty System was celebrating sixty years of peace on theseventh continent. The world has significantly changed in these sixty years, and the ATS has evolved alongwith it. The purpose of these presentations and discussions was to look to the past to see where the ATS
has both succeeded and failed in order to better prepare for the future of the regime. A diverse researchgroup has formed in order to prepare a comprehensive look into the continued resilience of the ATS fromthe perspective of international law and is planning to publish their work in 2021.

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