"[T]he world will derive no benefit [from Antarctica]."
—Captain James Cook 1777[1]
I. INTRODUCTION Almost four decades ago, a famous geologist declared that he "would not give a nickel for all the resources of Antarctica."[2] Antarctica was seen as a frozen and barren wasteland, devoid of any value to humanity. Times have changed that once common percep tion.[3] The last few decades have generated increasing interest in the Antarctic region due largely to the potential presence of vast quantities of oil and other mineral resources.[4] However, unrecognized sovereignty claims and inadequate implementation of environmental protection measures under current Antarctic agreements threaten pandemonium once significant oil deposits are discovered in the region. This Comment explores contemporary questions surrounding the Antarctic oil issue[5] with an eye towards the Antarctica of tomorrow.
Part II of this Comment provides an overview of the geography of Antarctica, while Part III describes the key treaty agreements governing the region. Part IV addresses the prospects of oil exploitation in Antarctica and the surrounding seas, and Part V explains the necessary conditions for feasible oil exploitation. Part VI predicts the effect a significant Antarctic oil discovery would have on the Antarctic Treaty System. Part VII points out problems with the current Antarctic minerals regime and suggests that the sovereignty issue must be resolved if future conflict is to be avoided in the region. Part VIII examines the alternative land use regimes proposed for resolving the sovereignty dilemma, while Part IX discusses environmental concerns surrounding the Antarctic oil issue as they relate to tourism and scientific research activities in the region. Part X discusses policy considerations impacting the future of Antarctic oil and suggests ways of remedying the Protocol on Environmental Protection to the Antarctic Treaty's (Protocol) current inadequacies. This Comment concludes by calling for recognition of sovereign rights in Antarctica, which in conjunction with environmentally sensitive regulations, will ensure sensible oil development when sizable oil fields are discovered in the region.
II. GEOGRAPHY AND GEOLOGY OF ANTARCTICA The continent of Antarctica is best described as a vast, white wilderness of ice.[6] With a mean annual temperature in the interior of minus forty to minus sixty degrees Celsius,[7] Antarctica is a frozen desert of primal solitude.[8] By comparison, the mean annual temperature of Mars, a planet devoid of life, is around minus eighty-five degrees Fahrenheit.[9] Antarctica is viewed as "the coldest, windiest, highest, driest, most lifeless place on earth."[10] The nearly 5.5 million-square-mile continent[11] is almost entirely covered by a blanket of ice averaging 6000 feet in thickness, with interior areas reaching ice depths of 14,700 feet.[12] This colossal ice sheet comprises over ninety percent of the world's ice.[13]
The sea surrounding Antarctica is called the Southern Ocean.[14] This forbidding sea spawns a sailor's nightmare of severe storms, relentless winds, and gargantuan waves sometimes measuring three-quarters of a mile long and fifty feet high.[15] Icebergs 300 to 1300 feet long and towering 40-130 feet above the water[16] drift ominously through the Southern Ocean like silent juggernauts. Ice in the Antarctic seas covers approximately four million-square kilometers during the summer and increases to twenty million-square kilometers in winter.[17] In contrast to the barren Antarctic continent,[18] the nutrient-rich Southern Ocean is teeming with life.[19]
Despite the treacherous and turbulent conditions of the Antarctic region, man has migrated to Antarctica and established numerous research outposts on its icy terrain.[20] The United States maintains the most visible presence on the continent with eight bases housing over 1200 people in the summer and about 250 in the winter.[21] The presence of research stations from at least twelve nations on such a remote and hostile land illustrates the immense global interest in Antarctica's future.[22] The number of agreements governing the Antarctic region, which have arisen by necessity as competing national interests infiltrate the region in increasing numbers, underscore the area's enormous potential, and illustrate increasing international environmental concerns about the world's last great frontier.[23]
III. ANTARCTIC GOVERNING AGREEMENTS Many international agreements govern Antarctica and regulate marine pollution in the Southern Ocean.[24] Three agreements of particular relevance to the Antarctic oil issue are the Antarctic Treaty,[25] the Protocol on Environmental Protection to the Antarctic Treaty (Protocol),[26] and the United Nations Convention on the Law of the Sea (UNCLOS).[27]
A. The Antarctic Treaty Seven countries have officially claimed parts of Antarctica as their sovereign territory,[28] leaving fifteen percent of the continent classified as open territory.[29] Moreover, several countries have neither recognized nor claimed sovereignty in Antarctica, but have reserved the right to do so in the future.[30] Together with the seven claimant states, these five countries drafted the Antarctic Treaty, which was signed in 1959 and entered into force in 1961.[31] The Antarctic Treaty is the fundamental governing agreement for the Antarctic region,[32] and Article IX of the treaty provides the basic legal framework governing environmental issues in Antarctica.[33] The Antarctic Treaty Consultative Parties,[34] consisting of the twenty-six nations possessing full voting rights on Antarctic issues, are fully bound by the terms of the Antarctic Treaty.[35]
Despite constituting the central Antarctic governing agreement, the scope of the Antarctic Treaty remains somewhat ambiguous because Article IV provides that the treaty applies to the Antarctic continent and its ice shelves, but does not affect rights over the high seas surrounding Antarctica.[36] The Antarctic Treaty was intended to ensure that Antarctica "shall not become the scene or object of international discord,"[37] and it has been relatively successful at doing so, but at a price. The Antarctic Treaty did nothing to resolve territorial claims to the continent, purposefully avoiding this politically dividing issue. Instead of addressing the problem directly, the treaty simply freezes territorial claims on Antarctica as they were in 1961 and prohibits any new claims or the expansion of existing claims.[38] Thus, the claimant nations may actively pursue their territorial claims should the Antarctic Treaty ever be permitted to expire.[39] Today, nearly four decades after the Antarctic Treaty first began governing the Antarctic region, the issue of sovereignty and territorial claims remains unsettled.[40]
B. The Protocol on Environmental Protection to the Antarctic Treaty In 1991, an agreement to protect the Antarctic environment was signed by the Contracting Parties, which includes Consultative and Non-consultative Parties, to the Antarctic Treaty System.[41] The Protocol imposes a complete ban on all mineral exploration or exploitation in Antarctica for at least a fifty year period.[42] However, a loophole in the agreement creates the potential that parties may walk-out of the Protocol after fifty-five years.[43] Despite the potential controversy surrounding this walk-out clause,[44] ten parties to the Antarctic Treaty had ratified the Protocol by January 1997,[45] and the international community is presently abiding by it.[46] The United States ratified the Protocol when President Clinton signed the Antarctic Environmental Protection Act on October 1, 1996.[47] However, the Protocol will not officially take effect until it is ratified by Japan, the sole remaining signatory to the Antarctic Treaty that has not yet done so.[48]
C. United Nations Convention on the Law of the Sea The United Nations Convention on the Law of the Sea (UNCLOS), which was signed in December 1982 and entered into force on November 16, 1994, greatly impacts the Antarctic region. Although not an Antarctic agreement per se, UNCLOS is widely accepted as the authoritative text on modern international ocean law.[49] UNCLOS establishes boundary limits for territorial seas,[50] the contiguous zone,[51] the continental shelf,[52] and Exclusive Economic Zones (EEZs).[53] The area outside national jurisdiction boundaries is designated the common heritage of mankind.[54] Resources in this area, comprised of the seabed, ocean floor, and subsoil,[55] would be jointly owned by the global community.[56]
Two important issues under UNCLOS relating directly to the sovereignty dilemma are whether coastal states exist in Antarctica and whether claimant states may legitimately assert maritime claims. The underlying problem of UNCLOS is that if no claim of sovereignty is recognized in Antarctica, there can be no basis for establishing territorial seas, EEZs, or continental shelves.[57] In the absence of valid territorial claims to Antarctica, the continental shelf would assume the status of the deep sea-bed, and thus be deemed common property.[58] This has far-reaching consequences because UNCLOS' broad definition of the continental shelf was intended to put most sea-bed resources, including oil, under coastal state jurisdiction.[59]
Both the Antarctic Treaty and UNCLOS lack sufficient attention to the issue of sovereignty and jurisdiction over Antarctica and the Southern Ocean.[60] However, the fundamental failing of the current regime more accurately resides in the Protocol's minerals prohibition, which fails to resolve the sovereignty dilemma and lacks adequate environmental protection measures. These significant shortcomings must be remedied if Antarctic oil exploration is to avoid becoming a blackened "gold rush" with the attendant dangers that conflicting territorial claims could produce amidst such chaos.[61]
IV. THERE'S GOLD IN THEM THERE HILLS&EMDASH ;PROSPECTS OF OIL IN THE ANTARCTIC REGION Due to severely restricted accessibility caused by Antarctica's harsh climate, arrant isolation, and mammoth ice shield, oil prospects in the region are inherently speculative. For instance, a report from the United States Office of Technology Assessment stated that "there are no known oil, gas, or mineral deposits in Antarctica of commercial value"[62] and predicted that no oil deposits would be developed until well into the next century.[63] However, since Ant arctica may once have been part of a vegetated ancient super-continent,[64] there is a possibility that significant oil deposits do in fact exist beneath its icy surface.[65]
Based on accessibility factors, the Antarctic area widely considered to hold the greatest potential for oil exploitation is the continental shelf.[66] One estimate postulates that fifty billion barrels of oil,[67] an amount roughly equivalent to Alaska's entire estimated reserves, lies under the Weddell and Ross Seas alone.[68] Other estimates by the former Union of Soviet Socialist Republics' hydrometeorological service[69] and the Japanese Plan Antarctic Survey[70] give similar projections. One estimate goes so far as to put potential deposits as high as 203 billion barrels.[71] This is staggering in light of the fact that the total historic domestic United States production to date is under 200 billion barrels.[72] Additional studies have found heavy hydrocarbon[73] residues in the Antarctic areas of McMurdo Sound[74] and Bransfield Strait.[75] The real question thus becomes not whether oil deposits exist, but whether they will be found, and if discovered, whether they can be economically extracted.[76]
A 1978 study by the Rand Corporation found that four to ten supergiant oil fields[77] remain undiscovered in the world.[78] Since Antarctica has been explored with much less sophistication than the rest of the earth's surface area,[79] and because its geologic characteristics suggest a strong possibility of hydrocarbon deposits,[80] there is a good chance that at least one supergiant oil field lies somewhere beneath the vast Antarctic terrain.[81]
Over the past few decades, due largely to the studies suggesting the presence of Antarctic hydrocarbons, several oil companies have expressed interest to the Antarctic Treaty Consultative Parties about obtaining permits for oil exploration.[82] Moreover, several non-United States companies may have already conducted oil exploration activities in the waters surrounding Antarctica.[83]
V. NECESSARY CONDITIONS FOR ECONOMIC OIL EXPLOITATION IN ANTARCTICA For oil to be feasibly extracted from Antarctica, certain conditions must exist. Oil prices must increase, technology to locate and exploit oil in harsh environments must improve, and world oil demand must continue to grow.[84] As discussed below, all of these conditions are likely to occur in the not-too-distant future.
A. Increased Price and Improved Technology Whether Antarctic oil fields can be exploited in an economically feasible manner depends greatly on available technology and the price of oil.[85] While some required technologies for Antarctic development will likely be similar to those now used in other harsh environments, such as the Arctic and North Sea regions,[86] potential Antarctic oil producers face unique challenges.[87] Since proven reserves seem to be sufficient to satisfy world demand through 2020,[88] prices may not be high enough for economically feasible exploration until then.[89] However, some predict that within the next decade, oil production will no longer be able to keep up with demand.[90] Moreover, although Antarctic oil might not be actively pursued until well into the next century, interest in potential oil exploitation in Antarctica remains strong.[91]
The basic stages of oil exploitation consist of geological exploration, exploratory drilling, commercial exploitation, and extraction.[92] Most of the activity in Antarctica to date consists of the first stage, geological exploration, with the possibility that some countries have ventured forward into the second stage of exploratory drilling.[93] Technologies to exploit offshore oil resources have increased rapidly over the last two decades in the North Sea and the Arctic.[94] New structural designs and construction methods for oil rig platforms may soon enable drilling at significantly greater depths, while ad vanced computer technology makes possible the ability to locate oil resources where previously undetectable.[95] These technological advances indicate a strong likelihood that Antarctic drilling challenges may soon be overcome.[96] Indeed, many conservationists worry that these technological advances will soon allow oil companies to explore in areas such as Antarctica, once considered immune from development.[97] Rapidly improving technology, coupled with the knowledge that oil companies have entered increasingly challenging environments over the last decade,[98] leads to the conclusion that economically feasible oil exploitation will soon become a reality in Antarctica.[99]
B. Future Global Demand A rapidly expanding global population and the surging energy needs of an increasingly industrialized world will undoubtedly lead to a demand for more oil.[100] Since oil is a non-renewable resource and therefore exists in finite quantities at existing wells, the probability of pursuing Antarctic oil has led at least one geologist to state, "There's no question in my mind that Antarctica will be drilled."[101] Worldwide oil consumption is currently growing at a rate of 1.6 percent annually, with growth rates in some countries as high as 4.5 percent.[102] As demand for oil continues to increase, certain countries like Japan, which must import virtually all of its oil needs, may decide that establishing a secured energy supply is necessary to protect their national interests.[103] In economic terms, the security of an energy source such as oil would compensate for whatever expense was incurred by establishing it.[104] Moreover, if oil prices sustained a significant drop for any extended period of time, a shortage could result due to lowered investments and reduced incentives to produce.[105] Therefore, this threat could spur oil importing countries into taking quicker action to secure a reliable oil source.
Estimates indicate that the European Union will import oil in amounts equivalent to that of the United States' enormous consumption levels in coming years.[106] Projections also indicate that while growth in demand for oil may be comparatively low in North America and Europe, increased economic activity in Asia will produce correspondingly increased oil production worldwide.[107] Even if alternative fuel sources continue to be explored, and despite assertions that "oil's share of world energy consumption may have reached its peak,"[108] demand for oil will undoubtedly continue to grow well into the future.[109]
Industrialization will likely spread to most nations of the world during the first half of the twenty-first century. This worldwide industrialization movement, combined with a projected world population explosion, will likely push the Antarctic Treaty parties to begin Antarctic oil exploration in earnest.[110] If the necessary political, economic, and technological conditions arise,[111] oil exploration and exploitation in Antarctica will occur regardless of any agreements to the contrary.
VI. NATIONAL APPETITES FOR OIL WILL SWALLOW ANTARCTIC AGREEMENTS The discovery of a significant oil deposit in Antarctica will undoubtedly bait the national appetites of energy hungry nations.[112] When a nation feels its best interests will ultimately be served by doing so, the Protocol's ban on Antarctic minerals activity will be broken.[113] The Antarctic Treaty System includes major naval powers and nations prominent on the world stage, including the United States, the United Kingdom, China, Japan, and Russia.[114] The actions of these states will define the contemporary law of the sea in the Antarctic region.[115] When the well begins to run dry, heavy oil importers such as the United States, which indulges in excessive dependence on nonrenewable resources to meet its energy needs, will barely slow down to cast aside the Protocol in their stampede to claim the oil fields of Antarctica.[116]
The United States' insistence on a walk-out clause in the Protocol[117] is testimony to its true intentions, namely to cultivate Antarctica's oil when the opportunity presents itself.[118] As one United States delegate stated: "[W]e have always been opposed to a permanent prohibition on Antarctic activities. It's a matter of principles. We should not foreclose the right of future generations to make decisions."[119] One need not look too closely at this statement to decipher its underlying message. Americans have always embraced fresh challenges and potential sources of wealth. Antarctic oil production appeals to both.
Americans have a strong attachment to their automobiles and those automobiles are dependent on oil.[120] Oil embargoes and fuel restrictions threaten not only economic hardship, but strike at the very heart of America's love affair with the automobile.[121] If energy needs grow serious enough, an outright minerals ban in Antarctica will be deliberately shoved aside by the United States and other like-minded countries.[122] Since future mining technologies will likely incorporate advanced methods of environmental protection,[123] and since world oil demand shows no sign of declining, while stability in oil-exporting areas like the Middle East remains tenuous at best,[124] a secured Antarctic oil supply becomes ever more attractive.[125]
The reality of the situation surrounding Antarctic energy resources mandates that the territorial claims issue cannot continue to be ignored by the Antarctic Treaty parties.[126] The Consultative Parties can no longer agree to disagree about who owns what part of Antarctica. As it currently stands, any nation undertaking oil exploitation in Antarctica would be exercising an act of sovereignty, an act wholly inconsistent with the Antarctic Treaty.[127]
The sovereignty situation in Antarctica is shrouded in accusations of illegitimate territorial claims due to non-compliance with international standards for the acquisition of territorial rights.[128] Since it is doubtful that declared Consultative Parties like Chile and Argentina will ever abandon their claims, and non-declared parties like the United States, Russia, and Japan, are also unlikely to forfeit their rights to Antarctica's future,[129] the time is nearing when the issue of sovereignty must be resolved to avoid the territorial conflicts that may otherwise erupt.[130] Exploration and conservation of Antarctica and the Southern Ocean depend upon these recognized claims of sovereignty.[131] Without sovereignty and the individual ownership that accompanies it, there will be less incentive to conserve oil resources and maintain sustainable development levels once the Antarctic oil rush begins.[132]
VII. THE CURRENT PROTOCOL IS A TEMPORARY SOLUTION TO A RIPENING PROBLEM For the last three decades Antarctica has been stuck in a "legal 'twilight zone' between an international commons and state sovereignty."[133] The Protocol does nothing to reconcile the region's sovereignty dilemma.[134] It is comparable to applying a blindfold over the eyes of someone needing glasses in order to remedy blurred vision: the immediate problem has been disguised only to increase the potential for a disaster in the future.[135] Prudent solutions entail discarding the Protocol and replacing it with a more realistic agreement that remedies the sovereignty issue, or modifying the Protocol to achieve the same results.[136] Japan has stated that it is "convinced that the co-operative efforts of all the Consultative Parties are in the interests of the entire international community."[137] Yet, when a supergiant oil field is found off the Antarctic coast, whatever Antarctic solidarity exists will quickly melt away unless an adequate governing regime is implemented.[138]
The walk-out clause incorporated into Article 25 of the Protocol is a prime example of the Protocol's deficiency for governing future Antarctic activity. Under the walk-out clause, if a proposed amendment to the Article 7 minerals ban has not entered into force within three years of its adoption by a majority of the Consultative Parties, any signatory can withdraw from the mining prohibition altogether and begin mining two years later.[139] Since Antarctic Treaty nations have historically been slow in ratifying amendments,[140] the likelihood of a walk-out seems all but certain. Political damage from the inclusion of the clause may have already undermined any chance of the Protocol's survival since "[t]he whole basis of the Antarctic Treaty is consensus,"[141] and the walk-out clause "strike[s] at the heart of the treaty."[142] If an agreement on Antarctic resource activity is to adequately govern the region, it cannot allow any party to the agreement to ignore its requirements whenever that party desires to do so.
Another Protocol deficiency which may lead to the agreement's downfall is that the Protocol does nothing to prevent non-Antarctic Treaty System nations from conducting oil exploration activities.[143] Under the Protocol, third-party nations appear unrestrained from drilling anywhere in Antarctica.[144] The Protocol thus fails to address the very real possibility that third party nations will seek out Antarctic oil for themselves.[145] Although member nations are obligated by Article X of the Antarctic Treaty to resist any efforts of non-party nations to assert new claims over any area of Antarctica,[146] when a sizable oil field is discovered, member states will not have the political will to prevent exploitation, particularly since they will likely be scrambling to set up drilling facilities of their own.[147] For a minerals agreement to effectively govern Antarctica it must explicitly provide who may conduct what activities where, while establishing enforcement mechanisms sufficient to regulate activity throughout the region.
Recent history of the Antarctic Treaty System illustrates the unlikelihood of serious compliance or enforcement of the Protocol by the Consultative Parties.[148] In 1983, France built an airstrip on Antarctica, during the construction of which it dynamited Emperor Penguin colonies and destroyed a group of small islands.[149] France admitted that it violated the Antarctic Treaty System's environmental protection mandate,[150] but no other nation ever made a formal complaint for fear of antagonizing the French.[151] If no action is taken against an admitted wrongdoer, there can be little hope of enforcement under the current agreements. Action is even more unlikely when oil prospects present opportunities for substantial economic gain. The failure of parties to adhere to the terms of other Antarctic agreements increases the likelihood that the requirements of the minerals ban will be similarly ignored.[152]
The Protocol's deficiencies may stem from a lack of foresight caused by the hastened scramble to enact an Antarctic environmental agreement.[153] If the Protocol is to have any real permanence, sovereign claims must be established in Antarctica and effective regulations must be implemented to govern oil and other resource exploitation in the region.[154] Unregulated exploration of Antarctic oil would not only pose a substantial threat to the environment, it would also represent a serious threat to the Antarctic Treaty System itself.[155] Many nations have been hesitant to ratify the Protocol so that they may keep their options open on the minerals issue.[156] Since a very real possibility exists that the Protocol will fail, a replacement governing agreement must be developed to ensure stability in the region.[157] In establishing a new Antarctic agreement, the Consultative Parties could negotiate whatever terms best served their various interests as long as they do not violate the principles of jus cogens.[158] A crucial component of any agreement ultimately forged will be its method of addressing the sovereignty dilemma so that peaceful resolution of Antarctic territorial claims can be achieved.
In furtherance of a new Antarctic regime capable of sustaining adherence by member nations, the Antarctic Treaty will have to be amended to accommodate sovereignty claims. Otherwise, any state exercising territorial rights would be in violation of the treaty.[159] Once sovereignty on the continent has been established, jurisdiction over the continental shelf will come automatically under UNCLOS without any necessary formal declaration by the sovereign state.[160] Although Antarctica was deliberately excluded from UNCLOS negotiations, and areas other than the deep sea-bed are inherently excluded from regulation by UNCLOS authority,[161] UNCLOS fully applies to Antarctic waters since it specifically refers to all the world's seas and oceans.[162] Thus, under the new regime, Antarctic sovereigns would have an inherent right to declare 200-mile EEZs under customary international law.[163] However, until sovereignty is established, the Antarctic waters and any oil beneath them may be subject to the legal status of high seas.[164] The high seas status of Antarctica's continental shelf areas weakens the Antarctic Treaty System because claimant states may resent the exercise of traditional freedoms of the high seas, such as laying of pipeline and cables, over areas they consider within their continental shelf jurisdiction.
VIII. RESOLVING THE SOVEREIGNTY ISSUE - POSSIBLE LAND USE REGIMES
A. A Condominium Regime There are several possible regimes which could be established to end sovereignty uncertainties in the Antarctic region. A condominium regime[165] could be formed on the theory that the Consultative Parties have a collective right to Antarctica which is superior to that of the rest of the world.[166] Under this land use regime, the parties would be permitted to establish regulations governing all phases of oil exploration and exploitation.[167] A condominium regime could be a viable system in the Antarctic region, particularly when the migratory nature of oil is considered. Oil pools often straddle both sides of a territorial boundary, enabling one party to extract oil from outside its delineated area.[168] Joint exploration agreements under a condominium regime would prevent such problems since all parties to the agreement would be funneling efforts toward a common purpose.[169]
An added benefit of a condominium regime would be that it could greatly reduce the incentives normally responsible for causing a tragedy of the commons. If all parties drilling for oil feel no need to pump more than the others in order to get their fair share, oil extraction would likely occur at a more sustainable rate with a view towards maximizing long-term operation. A condominium regime could be particularly beneficial under these circumstances since some Antarctic claims overlap. However, a condominium regime may not be realistic since it was previously rejected by the claimant states.[170] The related regime of consortium[171] might be a valid alternative. However, the ultimate issue of sovereignty would not be laid to rest under such an approach since all territorial claims would merge.[172]
B. A World-Park or Common Heritage Regime Other potential Antarctic land use regimes call for establishing Antarctica as a world park that should be preserved forever or declaring it the common heritage of humankind.[173] These concepts would doubtless be supported by non-industrialized countries and the Organization of Petroleum Exporting Countries (OPEC).[174] However, the likelihood of either of these approaches becoming the basis for an Antarctic land use regime is minute.[175] In fact, one claimant state, New Zealand, has called the concept of Antarctica as a world park an "unachievable utopia."[176] If there were no resource potential in Antarctica, the world park theory might have a better chance of endorsement by the Consultative Parties. As it now stands, those nations have too much invested in Antarctica to relinquish their interests in the region.[177] Likewise, the Antarctic has too long a history of exploration and attempts to establish legitimate claims of sovereignty[178] for the concept of common heritage of humankind to be a realistic notion.[179] This becomes readily apparent when one considers that the Antarctic Treaty parties include all of the permanent members of the United Nations Security Council and all of the declared nuclear weapons states.[180] Such seasoned actors on the world stage are accustomed to flexing their military and political muscle in order to get their way. Should these nations choose to do so, they certainly have the strength to bully lesser nations into accepting their claims.
C. A Division Regime Considering the pros and cons of the land use regimes that could potentially govern the Antarctic area in conjunction with political and economic reality, the most appropriate regime for Antarctica is division.[181] Under division, claimant states would be able to utilize whatever oil lay beneath their territory however they saw fit.[182] The principle benefits of division would be that since definite property claims would exist, investment in mineral prospecting would be encouraged[183] and problems of free riders, normally associated with common ownership regimes, would be avoided.[184] Of course, the migratory nature of oil requires special considerations, but these could be remedied by establishing prior agreements for extraction limits on oil fields which straddle territorial boundary lines.
Because the internationally recognized prerequisite for establishing territorial sovereignty is effective occupation,[185] opponents of division may argue that no state has effectively occupied Antarctica since the only occupied structures are scientific research stations. However, this argument does not present a significant obstacle since remote areas with harsh environments like that of Antarctica have been considered effectively occupied with less intensive and less consistent demonstrations of authority than that which is usually required for establishing legitimate sovereignty.[186] Thus, claimant states could point to the fierce Antarctic climate as reason for not occupying the continent sooner or more assertively.[187]
The obvious problem that arises under division is just how Antarctica should be divided. This question could be decided by some mutually agreed-upon, politically neutral arbitrator with a guarantee of some pre-established minimum territory for the seven claimant states. One possibility could be to have all Antarctic Treaty parties nominate who they consider to be the top authorities on international territorial disputes and then form a decision-making body out of the most frequently nominated officials.[188] Enforcement of the body's decisions might derive from a specially-created United Nations Polar Regions "Peacekeeping" Force. Another possibility could be to allow states to present their territorial claims to the International Court of Justice.[189] In any event, division would ultimately produce internationally accepted territorial claims in Antarctica, which would impart jurisdictional authority under UNCLOS to the continental shelf surrounding those territories where Antarctic oil prospects appear best.[190] The bottom line is that, under a territorial division regime, world consumers will benefit from an increase as well as a corresponding stability in world oil supply.[191]
IX. THE ENVIRONMENTAL CONTROVERSY OF ANTARCTIC OIL PRODUCTION To some, the suggestion of oil exploration in Antarctica is profane and deeply disturbing. Preservationists decry such a proposal as brazenly uncaring of environmental concerns and evincing a foolish devotion to the almighty dollar. This section explores the potential harm oil exploitation could have on Antarctica's environment.
A. The Oil Spill as Environmental Nemesis The catalyst for the creation of the Protocol was a growing worldwide emphasis on environmental protection.[192] Oil contamination of Antarctic waters currently occurs infrequently.[193] However, once exploitation of Antarctic oil commences, pollution can be expected to increase.[194] Yet it should be noted that although major oil spills are widely publicized, they often cause less overall harm to the environment than other sources of pollution.[195] Moreover, the likelihood of spills can be greatly reduced by improving environmental protective technologies.[196] Implementing stricter transport requirements also minimizes environmental harm by oil exploitation activity in the Antarctic region.[197] One additional step that can be taken to minimize damage when and if an oil spill occurs, is requiring drilling companies to post an environmental clean-up bond.[198] It has also been suggested that since marine fauna are numerous and widely dispersed around Antarctica, small spills are unlikely to permanently impact overall populations.[199] Some argue that since Antarctica's low temperatures slow degradation and evaporation of oil,[200] impacted areas could take up to several decades to recover.[201] However, scientists also report that cold-water oil spills are not nearly as damaging to the environment as those which occur in warmer waters.[202]
When oil exploration begins in earnest in Antarctica, possible sources of oil spills in Antarctic waters will include discharges of sludge from oil tankers, dumping of waste oil, natural oil seeps, and improper discharge of wastes.[203] However, the single greatest danger posed to the Antarctic environment by oil exploration may be well blowouts.[204] A blowout occurs when oil suddenly escapes from a well site in an uncontrolled, continuous eruption.[205] Due to Antarctica's ice covering, if a blowout were to occur during the winter, it would be extremely difficult to cap or to drill relief wells for as long as six months.[206]
Despite the potential danger,[207] oil production does not monopolize the role of polluter in Antarctica. Tourism and ongoing scientific research activities arguably pose an equivalent risk of environmental harm to the Antarctic region.
B. Hidden Dangers—Tourism and Scientific Pursuits Antarctic pollution dates back to the early explorers of the heroic age.[208] The trend continues today in the form of shattered glass, broken wires, used swabs and syringes, and raw sewage that is pumped directly into the Southern Ocean or left in piles on the ice to melt into the sea during the spring thaw.[209] The United States' research station at McMurdo Sound, a purely scientific base, had an oil spill in 1990 of more than 10,000 gallons when rubber bladders at the base's airfield ruptured.[210] In 1994, an Argentine gas leak spilled 20,000 gallons of fuel and spread to a 5000 square yard area.[211] An example of how extensive pollution from research activities has become can be gleaned from a stream near a Russian research station, which has been so badly polluted over the years that it still runs rust red into the sea.[212] Despite constituting a supposedly benign presence, science has unquestionably affected the Antarctic environment to some degree.
The more recent institution of Antarctic tourism is also taking its toll on the region. Each year, more than 3000 cruise ships visit the world's "last unspoiled wilderness" with tourists from these voyages disturbing penguin and seal breeding colonies,[213] and leaving behind garbage and graffiti as tokens of their visits.[214] Interestingly, the most infamous Antarctic oil spill was not the result of oil exploration activities.[215] The spill occurred in 1989 when the Bahia Paraiso, an Argentine navy transport ship carrying tourists and supplies, ran aground, sustaining a thirty foot gash in its double-walled hull and spilling much of its 250,000 gallons of diesel fuel into the waters near Palmer Station.[216] Tourists visiting Antarctica number between 10,000 to 12,000 each year and these numbers are expected to dramatically increase in the near future.[217] In light of this prediction, pollution from tourism will only get worse before it gets any better, particularly since self-regulatory "guidelines of conduct" for tour operators have been unsuccessful in ending tourist damage to Antarctica.[218]
X. THE OUTLOOK ON ANTARCTIC OIL Abraham Lincoln once began a speech by stating that "[I]f we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it."[219] These words aptly capture the state of the mineral resources issue in Antarctica. Oil has been one of the most important energy sources in the world in the recent past and continues to occupy that role today.[220] It is almost certain to remain an important source in the foreseeable future and world energy needs cannot be ignored.[221] At the same time, it is important for all the nations of the world to strive to keep Antarctica as environmentally protected as possible.
Some suggest that oil pollution is a necessary price for cultural modernization and state industrialization.[222] The full implications of this assertion are beyond the scope of this Comment, but whether environmentalism and economic growth must always clash remains to be seen.[223] Perhaps the two may be able to co-exist and even compliment one another.[224] In some respects, they are dependent on each other. For example, without the prospect of being able to exploit Antarctic oil, many nations may decide to pull the plug on Antarctic research because it is expensive to maintain.[225] The underlying reason for the doubling of Antarctic research bases over the past two decades was not one of scientific curiosity, but of economic self-interest. Countries "want[] a seat around the table," carving knives in hand, if profitable resources are found.[226] In this sense, it seems that the American Association of Petroleum Geologists may be correct when they say that prohibiting all mineral resource activity in Antarctica was "one of the most wrongheaded and narrow-vision decisions that could possibly be made."[227] Perhaps by placing an entire continent off limits, we are robbing our children of a more prosperous future. Perhaps black gold is better than no gold at all.[228]
At some point in the not-too-distant future, a decision will have to be made about the Antarctic oil issue, one that will produce far-reaching consequences.[229] Obviously, a cavalier attitude should not shape Antarctic policy, but the goals of Antarctic preservation and conservation do not have to be achieved at the expense of economic restriction and scientific recision. A properly regulated Antarctica may ultimately serve as a laboratory for international environmental law.[230] However, careful consideration must be given to all relevant issues, including preservation of habitat, minerals exploitation, species protection, scientific advancement, and tourism.[231]
The Protocol's provision to preserve Antarctica's environment in its relatively pristine state is admirable, but not realistic.[232] When push comes to shove, environmental concerns rarely prevail over human needs.[233] A day will come when current oil and gas sources are depleted. When the global well runs dry, unless alternate fuel sources have been drastically improved and are widely available, an energy hungry world will turn its ravenous eyes toward Antarctica.[234]
In this vision of the future, nations will aggressively reassert territorial claims, regardless of any prohibitions or agreements to the contrary, and a land rush will occur the likes of which has never been seen before.[235] In the midst of overlapping claims and terri torial disputes, armed conflict could easily erupt in the region.[236] To avoid such a dangerous scenario, international interests must be reconciled with individual state needs,[237] while environmental concerns are likewise balanced against economic demands.
In light of the pollution caused by scientific pursuits and tourism, both permitted under the current Antarctic regime, arguments for the absolute prohibition of any oil-related activities in Antarctica, such as currently exists under the Protocol, lose some of their force. A more logical alternative is to allow limited oil exploitation, with close regulation to ensure the utmost safety precautions, while setting aside certain "critical habitat" areas as off-limits to any oil exploitation.[238] New Zealand proposed this very idea nearly two decades ago when it suggested that certain geographical areas be designated prohibited zones for the purpose of all resource exploration and exploitation.[239]
When a company determines a location where it wants to drill, an additional protective step would be to require Environmental Impact Statements (EIS) analyzing possible environmental harms to the area, including the impact of drilling activities as planned and of alternative drilling plans. The EIS could be prepared by an independent international agency regulating Antarctic resources activity or by a branch of the United Nations. Although the Protocol contains environmental assessment provisions, critics complain the provisions fall short of the strongly protective measures needed for the Antarctic environment.[240] In conjunction with a well planned regulatory scheme and a solid enforcement program,[241] these proposals could serve the interests of both environmental protection and economic expansion.
Environmentally sustainable development of oil resources in Antarctica can be achieved if the Antarctic Treaty System parties implement procedures for minimizing environmental degradation in addition to holding polluters strictly liable for damages caused by their activity.[242] However, any change to the Protocol's minerals ban requires a binding legal regime on Antarctic mineral resources to be in place, "including an agreed means for determining whether, and under what conditions, any such activities would be acceptable."[243] If the existing Protocol constitutes the only agreement governing minerals activity in Antarctica when extractable oil is located, a legal vacuum will be formed when the Protocol's prohibition on minerals activity collapses.[244] In order to remedy the situation and prevent a legal vacuum from forming, the "binding legal regime on Antarctic mineral resource activities," required by Article 25, must be introduced before Antarctic oil exploitation becomes feasible.[245] If the Consultative Parties wait until extractable oil is found, any negotiations for constructing such a binding minerals agreement will be hurried and shallow, preventing proper consideration of environmentally protective measures.[246] Worse still, nations may not even bother taking part in the negotiations, choosing instead to take matters into their own hands and securing their claims by force.[247]
Any ban or limitation on mineral exploitation must be enforceable against those who violate its provisions if it is to be effective. Thus, individual nations should implement statutory provisions regulating Antarctic resource activity that can and will be enforced against their citizens.[248] Such self-policing would compliment the international agreements already in place by providing an additional enforcement mechanism for environmental protection in the region. At the same time, it is axiomatic that protection of the Antarctic environment depends on consensus among the Antarctic Treaty parties and all nations engaging in mineral activities on the continent subscribing to agreed-upon safeguards if adverse environmental impacts are to be minimized.[249]
This author does not claim that oil companies should be given free reign to pursue exploitation activities in Antarctica, but the suggestion that a minerals ban has somehow put to rest the Antarctic oil controversy is equally misplaced.[250] Ignoring the problem will not make it go away. The Protocol's ban on oil and other mineral activity in the Antarctic region has not addressed the essential issues of sovereignty and territorial claims, nor established parameters for effective enforcement measures to protect the Antarctic environment once oil exploitation becomes economically feasible.[251] To avert an otherwise certain future crisis,[252] the Protocol must be amended or replaced by a governing agreement that squarely addresses the sovereignty and environmental enforcement concerns raised in this Comment.[253]
XI. CONCLUSION The current Antarctic Treaty System is unsuitable for the Antarctica of tomorrow. The Antarctic Treaty's failure to address the sovereignty issue promises future instability in the region. The Protocol's minerals ban does not adequately protect Antarctica's environment because it provides no enforcement mechanism capable of dissuading member nations from pursuing independent energy agendas once significant oil reserves are discovered in the region. Although every effort should be made to maximize preservation of Antarctica, the demands of a twenty-first century world cannot be ignored.
This author is essentially a conservationist at heart. Regrettably, the decision to drill for oil more often centers on economic demands rather than preservationist concerns. Antarctica will ultimately open for oil exploitation and other minerals development, but such activities must be strictly regulated. A new Antarctic governing agreement implemented well before an energy crisis erupts could satisfy future world oil needs, while providing for effective enforcement of needed environmental protections. Oil prospects abound in the frozen continent. All that is needed is an Antarctic Treaty System suited for the unique problems and opportunities certain to arise once the oil begins to flow and capable of peacefully carrying the Consultative Parties and the rest of the world into the Antarctica of tomorrow.
F. Scott Fitzgerald wrote that the early American explorers must have held their breath when they first viewed the majestic continent stretching endlessly before them. They had "come face-to-face for the last time in history with something commensurate to [humanity's] capacity for wonder."[254] Fitzgerald's words from seven decades ago no doubt describe the thoughts of Antarctic visitors today when they first gaze out across a vast, seemingly infinite continent of ice. With suitable governing agreements in place, the gaze of the world can be fixed in similar fashion on an Antarctic future immense with prospects and potential as big as the sky.