The 'Peaceful Purposes' Principle in Antarctica and the Stability of its Peaceful Status

• Author: Jinyuan SU
• Position: PhD student, the Silk Road Institute of International Law, School of Law, Xi'an Jiaotong University, China. The author is grateful to Elisabeth Jordan for her help with refining the article
• Pages: 152-165

(2010) 24 A&NZ Mar LJ

THE ‘PEACEFUL PURPOSES’ PRINCIPLE IN ANTARCTICA AND THE STABILITY OF

ITS PEACEFUL STATUS

Jinyua n SU

*

The Common Heritage of Mankind has been a prominent constituent when seeking to defin e the lega l status of the

global commons. However, the concept of Common Heritage of Mankind has never been clearly defined and its

elements, whilst agreed upon among States in principle, are often subject to different interpretation s in substance.

One of the exceptions to this may be the element of ‘peaceful purposes’ prima facie upon the stability of its peaceful

status. The most significant threat to this stability is the possible carrying out of mineral exploitation. Nevertheless,

significant disruption is unlikely, because CRAMRA, which is widely accepted by the States most concerned, and the

most powerful, is in abeyance with respect to the regulation of mineral exploitation. This in no way affects the

integrity of the treaty: due to its lack of a benefit-sharing mechanism between technology-ready States and

technology-lacking States. The most appropriate international reaction might be the revival of the question of

Antarctica in the UN General Assembly, bidding for a benefit-sharing mechanism modelled on that laid out for the

Area in UNCLOS.

1 Introduction

Transnational spatial areas, in particular the high seas, Antarctica and outer space, have been spotlighted arenas for

inter-State political wrangling over elements suc h as title, strategic significance, and resource potentiality.

Contention between States in these areas used to be dominated by unilateral acts, but was then brought within the

framework of cooperation by reserving them as global commons, ie areas that are beyond sovereign State

jurisdiction because of the physical impossibility of extending such control or as a consequence of an international

agreement.1 The legal status of global commons is still unclear, but the most prominent candidate so far is the

Common Heritage of Mankind, which comprises five main elements: non-appropriation, common managemen t,

benefits-sharing, peaceful purposes, and inter-generational eq ui ty. 2 Antarctica is one of the global commons to

which this concept applies indirectly, in the sense that although it is not explicitly designated the status of ‘common

heritage of mankind’, as the deep sea-bed and the Moon are,3 almost all its elements are in fact incorporated.4

Antarctica is the southernmost continent on Earth and the fifth largest, measuring approximately 14.2 million square

kilometres. Between 95 and 98 percent of the landmass is covered by a giant ice sheet that averages 2.5 kilometres

in thickness, elevating it to the highest average altitude of all continents. 5 The ice cap extends offshore, forming vast

ice shelves that constitute more than 10 percent of the continent’s area.6 Vast as it is, Antarctica does not have an

indigenous people and is extremely inhospitable to humans with a combination of harsh natural conditions: it is the

coldest, driest and windiest continent.7 The first sighting of the Antarctic continent is a matter of dispute; but John

Davis, an American sealing master, is recorded as the first man to set foot on it, on 7 February 1821.8

* PhD student, the Silk Road Institute of International Law, School of Law, Xi’an Jiaotong University, China. The author is grateful to Eli sabeth

Jordan for her help with refining the article.

The continent

was almost forgotten during the rest of the 19th cent ury, due to its isolation from inhabited counterparts:

approximately 700 miles from the closest part of South America. Today, three key industries are in operation in and

around Antarctica: (1) scientific research whose priority was occasioned in the 1957-1958 International Geophysical

Year (IGY); (2) commercial fishing, which became sizeable from the 1960s; and (3) tourism - with dramatically

1 John Vogler, The Global Commons: Environmental and Technological Governance (John Wile y & Sons, 2nd ed, 2000) 6.

2 Barbara Ellen Heim, ‘Exploring the Last Frontiers for Mineral Resources: A Comparison of International Law Regarding the Deep Seabed,

Outer Space, and Antarctica’ (1990) 23 Vanderbilt Journal of Transnational Law 819, 82 7.

3 United Nations Convention of the Law of the Sea (UNCLOS), 1982, 1833 UNTS 3, art 136; Agreement Governing the Activities of States on the

Moon and Other Celestial Bodies (Moon Treaty); GA Res 34/6 8, UN GAOR, 34th sess, 89th plen mtg, Agenda Items 48 and 49, UN Doc

A/RES/34/68 (5 December 1979 ) annex art 11.

4 The Antarctic Treaty, 1959, 402 UNTS 71, arts I-V.

5 Peter J Beck, The Internationa l Politics of Antarctica (Mackays of Chatham, 1986) 9.

6Question of Antarctica: Study requested under General Assembly resolution 38 /77: Report of the Secretary General, GA Res 39/583, UN GAOR,

39th sess, 1st pt, Agenda Item 66, UN Doc A/39/583 (31 October 1984), 10 [4] (‘Report of the Secretary-General on Question of Antarctica’).

7 F M Auburn, Antarctic Law and Politics (C Hurst and Co, 1982) 2.

8 Maria Pia Casarini, ‘Activities in Antarctica before the Conclusion of the Antarctic Treaty’ in Francesco Francioni and Tullio Scovazzi (eds),

International Law for Antarctica (Kluwer Law International, 1996) 627, 631-2.

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