The Legal Status Effossio of the Hydrocarbons of the Southern Ocean Area; Questions of Antarctic Environmental Protection and Possible Minerals Exploitation under International Law

Abstract

Antarctica is the only continent on Earth that does not have a history of commercial minerals development. To date, the non-economic nature of Antarctic minerals, combined with legal impediments, technological, climatic, and physical difficulties, and issues of remoteness, have foiled even the most-hardy and expeditious of State interests.

International interest in Antarctic mineral resources is predicted to only increase in coming decades. Of the mineral resources found within, it is near-universally agreed the greatest future interest likely lies with the hydrocarbons of the Southern Ocean. Simply put, these present as the most exploitable, politically and strategically valuable, and economically viable of those predicted to exist (in substantive quantities).

This thesis examines that which is known in Antarctic legal circles as the 'Southern Ocean minerals issue.' The right for States to initiate and conduct mineral activities in the Antarctic is inexorably tied to international law. In the Antarctic context, international law not only determines the parameters through which activities may be undertaken, but also whether or not they may transpire in the first place. Prompted by a range of factors, including environmental concerns, this thesis seeks to provide an answer to the question of the 'legal status effossio' of the hydrocarbons of the Southern Ocean Area. The term 'legal status effossio' refers to the juridical standing of a mineral resource and the question of whether it itself is subject to potential physical exploitation under international law.

This thesis provides what is believed to be the broadest-ranging examination of the legal status of Southern Ocean hydrocarbons ever undertaken. Entailing a comprehensive search and examination of primary sources and reports, along with extensive informal consultations with academics and experts, the thesis is framed around three sub-questions. The first, what are the spatial limits of the Southern Ocean Area? The second, what are the present individual treaty law rights and obligations of States persuant to the potential utilisation of the hydrocarbons of the Southern Ocean Area? And the third, does customary international law confer any rights, or impose any obligations or limitations on the conduct of States pursuant to their potential utilisation?

The thesis body focuses on the main discussion points while extensive footnotes are used to draw attention to additional arguments and supplementary issues. The analysis includes an in-depth examination of the relevant treaty law rights and obligations of all States in the international community vis-a-vis the 1959 Antarctic Treaty, 1991 Antarctic Environmental Protocol (Madrid Protocol), 1982 United Nations Convention on the Law of the Sea (LOSC). Questions concerning customary international law, in particular those relating to the Madrid Protocol mining prohibition and the LOSC's embodiment of the Common Heritage of Mankind, are also addressed. Functioning to outline the relevant complexities of international law, extensive efforts are made to clarify and resolve all legal issues that complicate the identification of the applicable lex lata. The thesis concludes with specific and general findings on the legal status effossio of the hydrocarbons for all States in the international community on an individual basis. Show more