BLACK GOLD IN A WHITE WILDERNESS&EMDASH;ANTARCTIC OIL: THE PAST, PRESENT, AND POTENTIAL OF A REGION IN NEED OF SOVEREIGN ENVIRONMENTAL STEWARDSHIP

JOSEPH J. WARD[*]

Copyright © 1998 Florida State University Journal of Land Use & Environmental Law

"[T]he world will derive no benefit [from Antarctica]."

—Captain James Cook 1777[1]

BLOCKQUOTE>

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.

_______________________________

[*] J.D. MAY 1998, FLORIDA STATE UNIVERSITY COLLEGE OF LAW; B.A. ENGLISH, MAY 1994, UNIVERSITY OF SOUTH FLORIDA. THE AUTHOR THANKS RON CHRISTALDI FOR HIS HELPFUL COMMENTS ON AN EARLY VERSION OF THIS PIECE AND PROFESSOR DONNA CHRISTIE FOR POSITIVE FEEDBACK ABOUT THE COMMENT'S CONTENTS. Return to text.

[1] DEBORAH SHAPLEY, THE SEVENTH CONTINENT: ANTARCTICA IN A RESOURCE AGE 7 (1985). This quote, attributed to early Antarctic explorer Captain James Cook, illustrates the generally pessimistic view of Antarctic's resource potential two centuries ago. Return to text.

[2] The Antarctic Treaty: Hearings Before the Senate Committee on Foreign Relations, 86th Cong., 2d Sess. 75 (1960) (statement of Dr. Lawrence M. Gould, Chairman, Committee on Polar Research, National Academy of Sciences). Return to text.

[3] See, e.g., D. Michael Hinkley, Protecting American Interests in Antarctica: The Territorial Claims Dilemma, 39 NAVAL L. REV. 43, 43 (1990) ("The exploitation of the natural resources of Antarctica will soon become a reality."). Return to text.

[4] See Patrick T. Bergin, Antarctica, the Antarctic Treaty Regime, and Legal and Geopolitical Implications of Natural Resource Exploration and Exploitation, 4 FLA. INT'L L.J. 1, 3 (1988) (noting that many now believe the extraction of Antarctica's mineral resources will soon become economically feasible); Gregory J. Lohmeier, Comment, Keeping Cool Amidst the Ice: Addressing the Challenge of Antarctic Mineral Resources, 2 EMORY J. INT'L DISP. RESOL. 141, 141 (1987). Return to text.

[5] Most of the burgeoning Antarctic resource interest centers on oil and natural gas. See Lohmeier, supra note 4, at 148. Return to text.

[6] See Robert M. Andersen, Leading International Efforts to Improve Environmental Controls in Antarctica While Navigating National Politics, 6 GEO. INT'L ENVTL. L. REV. 303, 303 (1994) ("An ice sheet dominates all but approximately two percent of Antarctica's majestic, yet forbidding, five and a half million square miles."). Return to text.

[7] See STEPHEN J. PYNE, THE ICE: A JOURNEY TO ANTARCTICA 51 (1986).

In this sort of cold . . . if you drop a steel bar it is likely to shatter like glass, tin disintegrates into loose granules, mercury freezes into a solid metal, and if you haul up a fish through a hole in the ice within five seconds it is frozen so solid it has to be cut with a saw.

Bergin, supra note 4, at 6 n.18 (quoting I. CAMERON, ANTARCTICA: THE LAST CONTINENT 14 (1974)). Return to text.

[8] Antarctica is the world's coldest continent and no daylight whatsoever penetrates the icy darkness during the austral winter. See Andersen, supra note 6, at 303 & n.3. Return to text.

[9] See PYNE, supra note 7, at 51. Interestingly, even a remote and hostile environment like Mars has seen a considerable increase in exploration efforts of late with NASA's on-going Pathfinder mission. Return to text.

[10] Christopher C. Joyner, Ice-Covered Regions in International Law, 31 NAT. RESOURCES J. 213, 222 (1991). Antarctic blizzards sometimes produce winds in excess of 200 miles per hour and temperatures in Antarctica can reach 127 degrees Fahrenheit below zero. See Allan Young, Note, Antarctic Resource Jurisdiction and the Law of the Sea: A Question of Compromise, 11 BROOK. J. INT'L L. 45 n.1 (1985). Return to text.

[11] See Bergin, supra note 4, at 6 & n.19. This landmass is comparable in size to that of the U.S. and Europe combined. See id. Return to text.

[12] See Joyner, supra note 10, at 220. Return to text.

[13] See Ice and Ice Formations, in 20 THE NEW ENCYCLOPEDIA BRITANNICA MACROPAEDIA 793, 797 (15th ed. 1985) [hereinafter BRITANNICA]. Return to text.

[14] The Southern Ocean makes up about 10% of the world's oceans and denotes the southern portions of the Atlantic, Pacific, and Indian Oceans. See Jennifer Angelini & Andrew Mansfield, A Call For U.S. Ratification of the Protocol on Antarctic Environmental Protection, 21 ECOLOGY L.Q. 163, 168 n.20 (1994). Return to text.

[15] See Christopher C. Joyner & Ethel R. Theis, The United States and Antarctica: Rethinking the Interplay of Law and Interests, 20 CORNELL INT'L L.J. 65, 70 n.24 (1987). Return to text.

[16] See PYNE, supra note 7, at 11. The largest documented iceberg sighting was estimated to rise 460 feet above the water. See id. In 1965, an 87-mile-long iceberg was reported off Enderby Land, Antarctica, and in 1926, Norwegian whalers observed an iceberg 100 miles long. See Young, supra note 10, at 45 n.2. Return to text.

[17] See Stuart B. Kaye, Legal Approaches to Polar Fisheries Regimes: A Comparative Analysis of the Convention for the Conservation of Antarctic Marine Living Resources and the Bering Sea Doughnut Hole Convention, 26 CAL. W. INT'L L.J. 75, 76 (1995). Return to text.

[18] Antarctica has no native trees, reptiles, land birds, or mammals. See Christopher C. Joyner, The Southern Ocean and Marine Pollution: Problems and Prospects, 17 CASE W. RES. J. INT'L L. 165, 171 (1985). Antarctica's "largest true land animal is probably a millimetre-long, spider-like mite." Rachel Campbell-Johnston, Why We Must Keep Antarctica a True Wilderness, TIMES (London), Aug. 7, 1996, at 13. Plant life consists only of algae, fungi, lichens, and mosses. See Bergin, supra note 4, at 7. Return to text.

[19] The Antarctic seas are home to krill, penguins, seals, whales, and numerous species of seabirds. See Paul Lincoln Stoller, Comment, Protecting the White Continent: Is the Antarctic Protocol Mere Words or Real Action?, 12 ARIZ. J. INT'L & COMP. L. 335, 336 n.5 (1995). Return to text.

[20] See Angelini & Mansfield, supra note 14, at 175. Return to text.

[21] See id.; see also Ritchenya Shepherd, The United States' Actions in Antarctica: The Legality, Practicality, and Morality of Applying The National Environmental Policy Act, 14 GEO. MASON L. REV. 373, 400 (1991). The United States' Antarctica operations are run primarily by the National Science Foundation, which operates three year-round research stations: McMurdo Station on Ross Island, Palmer Station on Anvers Island on the Antarctic Peninsula, and Amundson-Scott Station at the South Pole. See Andersen, supra note 6, at 303-04. Return to text.

[22] Over thirty research stations are present on Antarctica from at least 12 nations. See Bergin, supra note 4, at 9 & n.42. Return to text.

[23] For a thorough historical discussion of international environmental law, see ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL ENVIRONMENTAL LAW (1991). Return to text.

[24] These agreements include the 1973 International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 12 I.L.M. 1319, and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, Feb. 17, 1978, 17 I.L.M. 546 [hereinafter MARPOL]. Thirty-six of the Antarctic Treaty parties signed MARPOL. See Christopher C. Joyner, The Antarctic Treaty System and the Law of the Sea—Competing Regimes in the Southern Ocean?, 10 INT'L J. MARINE & COASTAL L. 301, 312 n.59 (1995). The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Dumping Convention), Dec. 29, 1972, 26 U.S.T. 2403, 1046 U.N.T.S. 120. Return to text.

[25] Antarctic Treaty, Dec. 1, 1959, 12 U.S.T. 794, 402 U.N.T.S. 71. Return to text.

[26] Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, S. TREATY DOC NO. 102-22, 30 I.L.M. 1455, 1460 (not yet in force) [hereinafter Protocol]. The Protocol was finalized as the final act of the Eleventh Antarctic Treaty Special Consultative Meeting. Return to text.

[27] United Nations Convention on the Law of the Sea, S. TREATY DOC. NO. 103-39, 21 I.L.M. 1261 (1982) [hereinafter UNCLOS]. Return to text.

[28] See Barbara Mitchell, Resources in Antarctica: Potential for Conflict, 1977 MARINE POL'Y 91, 94 (1977). Claims were made by the U.K. in 1908; New Zealand in 1923; France in 1924; Australia in 1933; Norway in 1939; Chile in 1940; and Argentina in 1942. See Elizabeth K. Hook, Comment, Criminal Jurisdiction in Antarctica, 33 U. MIAMI L. REV. 489, 489-90 (1978). Return to text.

[29] See Mitchell, supra note 28, at 94. Return to text.

[30] These countries are: Belgium, Japan, Russia, South Africa, and the United States. See id. Return to text.

[31] The original twelve Antarctic Treaty members are: Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Union of Soviet Socialist Republics (now Russia), the United Kingdom, and the United States. See id. As of 1992, there were 40 members of the Antarctic Treaty System, but only the 26 members possessing full voting rights are bound by the Antarctic Treaty. See William M. Welch, The Antarctic Treaty System: Is it Adequate to Regulate or Eliminate the Environmental Exploitation of the Globe's Last Wilderness?, 14 HOUS. J. INT'L L. 597, 619 n.118 (1992). The 26 Consultative Parties include Argentina, Australia, Belgium, Brazil, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, the Netherlands, New Zealand, Norway, Peru, Poland, Russia, South Africa, South Korea, Spain, Sweden, the United Kingdom, the United States, and Uruguay. See id. Return to text.

[32] See Lohmeier, supra note 4, at 141. Return to text.

[33] See Robert M. Andersen & Lawrence Rudolph, On Solid International Ground in Antarctica: A U.S. Strategy for Regulating Environmental Impact on the Continent, 26 STAN. J. INT'L L. 93 (1989), for an extensive discussion of the current legal framework governing environmental issues in Antarctica. Return to text.

[34] The Protocol defines the Consultative Parties as "the Contracting Parties to the Antarctic Treaty entitled to appoint representatives to participate in the meetings referred to in Article IX of that Treaty." Protocol, supra note 26, at 1462. Return to text.

[35] See Welch, supra note 31, at 620. Return to text.

[36] See Antarctic Treaty, supra note 25, at section IV. Return to text.

[37] See id. at Preamble. Return to text.

[38] See Bernard H. Oxman, Antarctica and the New Law of the Sea, 19 CORNELL INT'L L.J. 211, 224 (1986). The sovereignty issue thus exists in a "political vacuum." Kaye, supra note 17, at 76. Return to text.

[39] See Andersen, supra note 6, at 305. Return to text.

[40] See Sudhir Chopra et al., The Antarctic Minerals Agreement, 83 AM. SOC'Y INT'L L. PROC. 204, 218 (1989). Return to text.

[41] The Consultative Parties that signed the Protocol on Environmental Protection to the Antarctic Treaty are Argentina, Australia, Belgium, Brazil, Chile, China, Ecuador, Finland, France, Germany, Italy, Netherlands, New Zealand, Norway, Peru, Poland, Russia, South Africa, Spain, Sweden, the United Kingdom, the United States, and Uruguay. See Protocol, supra note 26, at 1455. The contracting parties that signed are: Austria, Canada, Colombia, Greece, Hungary, South Korea, Romania, and Switzerland. See id. A nation that desires to become a Consultative Party must demonstrate "its interest in Antarctica by conducting substantial research activity there" as accepted by other Consultative Parties. See Lohmeier, supra note 4, at 145. Return to text.

[42] See Protocol, supra note 26, art. 7 ("Any activity relating to mineral resources, other than scientific research, shall be prohibited."). Fifty years after the Protocol enters into force, the mineral prohibition can be lifted if three-fourths of the current Antarctic Treaty Consulta tive Parties vote to do so at a Review Conference and subsequently ratify it. See Protocol, supra note 26, art. 25, para. 4; see also Christopher C. Joyner, Fragile Ecosystems: Preclusive Restoration in the Antarctic, 34 Nat. Resources J. 879, 893-94 (1994). Return to text.

[43] See Protocol, supra note 26, art. 25, para. 5.b. Return to text.

[44] For a discussion about the potential ill-effects of the walk-out provision, see infra notes 123-26 and accompanying text. Return to text.

[45] See D'Vora Ben Shaul, Harsh Treatment of a Frozen and Fragile Land, THE JERUSALEM POST, Jan. 27, 1997, at Features 7. Return to text.

[46] As of May 1997, 26 countries had signed the Protocol, and all but Japan had ratified it. See Russian Parliament Ratifies Antarctic Environmental Accord, THE ASSOCIATED PRESS, April 26, 1997. All 26 nations that are party to the Antarctic Treaty must ratify the Protocol for it to enter into effect. See Antarctic: Clinton Signs Bill Implementing Enviro Accord, AM. POL. NETWORK GREENWIRE, October 3, 1996. Article 23 provides that the Protocol will enter into force on the 30th day following the date the instruments of ratification are deposited by all Consultative Parties. See Protocol, supra note 26, art. 23, at 1469. The Consultative Parties that had ratified the Protocol as of October 1996 are: Argentina, Australia, Brazil, Chile, China, Ecuador, France, Germany, Italy, Republic of Korea, Netherlands, New Zealand, Norway, Peru, Poland, South Africa, Spain, Sweden, the United Kingdom, the United States, and Uruguay. See Antarctic, supra. Return to text.

[47] See Jeff Rubin, Saving the Ice, 99 AUDUBON 1 (Jan. 1997). Return to text.

[48] See id. Return to text.

[49] See Joyner, supra note 24, at 302. Return to text.

[50] See UNCLOS, supra note 27, art. 3. Territorial seas may not exceed twelve nautical miles. See id. Return to text.

[51] See id., art. 33, para. 2. The contiguous zone may not extend beyond twenty-four nautical miles. See id. Return to text.

[52] See id., art. 76, para. 5. The continental shelf may not exceed 350 nautical miles or 100 miles from the 2500 meter isobath. See id. Return to text.

[53] See id., art. 57. EEZs may not exceed 200 nautical miles. See id. Return to text.

[54] See id., art. 136. Return to text.

[55] See id., art. 1, para. 1.(1). Return to text.

[56] See id., art. 136. Return to text.

[57] Territorial sea is an extension of the sovereignty of a coastal state. See id., art. 2, at 1272. EEZs and the continental shelf are extensions of the territorial sea. See id., art. 55, at 1280, & art. 76, at 1285. Thus, none of these three can exist without a recognized claim of sovereignty on the continent. Although the continental shelf exists ab initio, meaning states have an inherent right to it under international law, that right cannot exist unless there is a recognized coastal state to assert it. See DONNA R. CHRISTIE, COASTAL AND OCEAN MANAGEMENT LAW IN A NUTSHELL 318-19 (1994). Return to text.

[58] See James E. Carroll, Of Icebergs, Oil Wells, and Treaties: Hydrocarbon Exploitation Offshore Antarctica, 19 STANFORD J. INT'L L. 207, 219 (1983). Return to text.

[59] See Oxman, supra note 38, at 238. Return to text.

[60] See infra notes 150-66 and accompanying text for a discussion of possible remedies to the sovereignty problem Return to text.

[61] For a discussion about the potential dangers an all-out land rush could produce, see infra notes 213-14 and accompanying text. Return to text.

[62] OFFICE OF TECHNOLOGY ASSESMENT, U.S. CONGRESS, POLAR PROSPECTS: A MINERALS TREATY FOR ANTARCTICA 3 (1989) [hereinafter POLAR PROSPECTS]. Return to text.

[63] See id. Return to text.

[64] See Joyner, supra note 10, at 220. Return to text.

[65] Geologists surmise that because Antarctica was once part of the ancient super-continent, Gondwanaland, oil found on other former areas of Gondwanaland evidences the presence of oil in Antarctica. See Lohmeier, supra note 4, at 147-48. Return to text.

[66] See FRANCISCO ORREGO VICUNA, ANTARCTIC MINERAL EXPLOITATION: THE EMERGING LEGAL FRAMEWORK 128 (1988). "Geologic studies indicate sizable [hydrocarbon] potential in the immediate offshore area [of Antarctica]." Lisa Sostack, Halbouty Likes Antarctic Oil Potential, THE OIL DAILY, May 8, 1986, at 8 (quoting Michael T. Halbouty, an independent oilman). In 1973, pockets of natural gas were discovered beneath the Ross Sea, causing the U.S. Geological Survey "to speculate that 115 trillion cubic feet of the resource may be recoverable" from Antarctica's continental shelf. Bergin, supra note 4, at 24. Return to text.

[67] In 1974, Russia's Institute for Arctic Geology estimated that Antarctic oil deposits surpass Alaska's. See Bergin, supra note 4, at 24 n.130. Return to text.

[68] See Carroll, supra note 58, at 212 n.33; see also EMILIO J. SAHURIE, THE INTERNATIONAL LAW OF ANTARCTICA 355-57 (1992). Return to text.

[69] See JEAN- YVES LE DéAUT, THE ANTARCTIC ENVIRONMENT AND INTERNATIONAL LAW 160 (Joe Verhoeven et al. eds., 1992). Return to text.

[70] See id. Return to text.

[71] See David H. Elliot, Antarctia: Is There Any Oil and Natural Gas?, Oceanus, Summer 1988, at 37. See generally MAARTEN J. DE WIT, MINERALS AND MINING IN ANTARCTICA: SCIENCE AND TECHNOLOGY, ECONOMICS AND POLITICS (1985). Return to text.

[72] See Elliott, supra note 71, at 37. The enormous size of such oil deposits is underscored by noting that the Organization of Petroleum Exporting Countries' (OPEC) reserves are estimated to be around 440 billion barrels. See David L. Larson, United States Interests in the Arctic Region, 20 OCEAN DEV. & INT'L L. 167, 169 (1989). Return to text.

[73] Hydrocarbons are generated from marine and terrestrial organic debris, which is broken down into oil and gas by a combination of temperature and time. See Elliot, supra note 71, at 33. Return to text.

[74] See id. at 32. Return to text.

[75] See SAHURIE, supra note 68, at 355 n.28. Return to text.

[76] See PYNE, supra note 7, at 353. Ten of 21 Antarctic oil basins were considered viable exploration targets in 1985. See Alan Kovski, Antarctica: A Continent is Placed Off Limits to Oil Exploration, THE OIL DAILY, Oct. 8, 1991, at 2. It should be pointed out that two arguments commonly used to dissuade interest in Antarctic oil exploration as a profitable enterprise may not have a strong basis in fact. Higher transportation and labor costs are frequently cited as reasons why extracting Antarctic oil is prohibitively expensive. See SAHURIE, supra note 68, at 432-33. However, both of these reasons have been criticized. With respect to transportation costs, Antarctica is farther away from Europe than the Middle East, it is closer to Japan than the Middle East and not unreasonably far from the United States. Furthermore, volatile oil producing regions, like the Middle East, impute high insurance rates, which increase transportation costs due to the dangers of shipping oil through such politically unstable areas. See id. at 432. In addition, labor costs would likely be lower than in the Arctic or North Sea if workers are taken from the nearby low-income countries of the Southern Hemisphere. See id. at 433. Return to text.

[77] Supergiant oil fields contain 30-100 billion tons of oil. See PYNE, supra note 7, at 354; see also POLAR PROSPECTS, supra note 62, at 20 (defining a supergiant oil field as one containing in excess of five billion barrels of oil). Return to text.

[78] See PYNE, supra note 7, at 353-54. Return to text.

[79] See id. at 354. Return to text.

[80] See supra notes 63-78 and accompanying text. Return to text.

[81] See SAHURIE, supra note 68, at 355. See id. at 486 n.8 for an extensive list of oil prospects in Antarctica Return to text.

[82] See Andrew N. Davis, Protecting Antarctica: Will a Minerals Agreement Guard the Door or Open the Door to Commercial Exploitation?, 23 GEO. WASH. J. INT'L L. & ECON. 733, 740 (1990). Return to text.

[83] See id. at 759-60 n.199. Return to text.

[84] As one oil company geologist stated: "If the weather was our only obstacle, we'd probably all be down there bumping into one another." Sharon Denny, The Hunt for Offshore Oil Moves into Deeper Waters, THE OIL DAILY, May 6, 1985, at B2. Return to text.

[85] See POLAR PROSPECTS, supra note 62, at 19-21. Return to text.

[86] See id. at 20. Although similar to Arctic drilling in some respects, Antarctic drilling presents different obstacles to overcome because Antarctica, as a frozen continent surrounded by oceans, is generally subject to more severe weather conditions than the Arctic, which is essentially a frozen ocean surrounded by continents. See Kaye, supra note 17, at 76. Return to text.

[87] For example, due to the high concentration of icebergs in the Southern Ocean, improved technology is necessary to allow drilling platforms to be moved out of harm's way and for well caps on the sea floor to be protected from icebergs scouring the surface of the continental shelf. See id. Technology is not yet available to penetrate the glacial ice covering onshore areas. See Kovski, supra note 76, at 2. To extract oil from Antarctica would require combining technologies developed for ice-covered areas and deep water. See Nick Snow, OTA Projects Antarctic Development, THE OIL DAILY, Sept. 29, 1989, at 4. Drifting icebergs as big as Massachusetts could crush drilling rigs like beer cans and rip up subsea pipelines. See id. Temperatures a hundred degrees below zero, coupled with hurricane force winds, would break iron "like glass when you hit it with a hammer," says David Kingston, an Exxon Corporation geologist who has studied the problem. Id. These conditions notwithstanding, the oil companies are convinced they can conquer any cold-weather difficulties. See id. Return to text.

[88] See POLAR PROSPECTS, supra note 62, at 21. Current world crude oil production is about 21 billion barrels annually and has remained stable at that amount in recent years. As of January 1995, estimates place proven world reserves at between 999 and 1,111 billion barrels. See THE WORLD ALMANAC 1997, 238 (Robert Famighetti, ed.) (1996) [hereinafter ALMANAC]. Return to text.

[89] Profitability and risk, not weather or frigid temperatures, will ultimately determine whether a company has the incentive to develop an Antarctic oil field. See Snow, supra note 87, at 4. Oil was priced at $2 per barrel in 1970, but jumped to $12 in 1973 due to the 1973 oil embargo by OPEC, before stabilizing at around $30. See S.F. Singer, World Demand for Oil, in THE RESOURCEFUL EARTH 339, 346 (J. Simon & H. Kahn eds., 1984). Because of a worldwide surplus of oil and lower oil demand, prices dropped to such an extent that developed countries were discouraged from pursuing alternative fuel sources to meet their energy needs. Today, the worldwide addiction to oil continues. See generally Lee A. Daniels, OPEC's Pricing Predicament, N.Y. TIMES, June 10, 1985, at D1. Return to text.

[90] See William H. Lang Jr. et al., Oil Crunch Going to Hurt, HOUSTON CHRON., Jan. 8, 1997, at A21. Return to text.

[91] See Denny, supra note 84. Indeed, oil companies continue to venture into ever more remote areas in their quest to locate new oil fields. See Robert Corzine, Oil Exploration, FIN. TIMES, June 2, 1997, at 15. Return to text.

[92] See Christopher C. Joyner, The Evolving Antarctic Minerals Regime, 19 OCEAN DEV. & INT'L L. 73, 88 n.1 (1988). The basic exploration phase would take 3-5 years with another 9-15 years required for drilling and development. See id. Thus, 15-20 years would be needed from the start of exploration until start of production. See Francisco Orrego Vicuna, Antarctic Resources Policy: Scientific, Legal, and Political Issues 180 (1983). Research ships and aircraft would conduct geological mapping and analysis; drilling of exploratory holes would follow with commercial quantities of oil found on land in about 1 in 50 holes. See Carroll, supra note 58, at 210-11. Another challenge will be storage facilities since regular shipping will be difficult due to the harsh Antarctic environment. See id. In addition, because of the build-up of ice during the long Antarctic winter, the entire production facility would have to be below the surface and able to function nine months of the year without surface maintenance. See Colin Deihl, Antarctica: An International Laboratory, 18 B.C. ENVT'L AFF. L. REV. 423, 430 (1991). Return to text.

[93] See Joyner, supra note 92. Return to text.

[94] See Michael Crabbe, Antarctica: Oil Potential for Next Century, 52 PETROLEUM ECONOMIST 365, 365 (1985). Return to text.

[95] See Leigh Derenne Braslow, Comment, Coastal Petroleum's Fight to Drill Off Florida's Gulf Coast, 12 J. LAND USE & ENVTL. L. 343, 346 (1997). Return to text.

[96] Ice-reinforced tankers, submersible drilling rigs, and underwater storage facilities are some examples of recent technologies developed to overcome the inherent problems of offshore oil exploration in ice-covered areas. See Joyner, supra note 92, at 87. These modern technologies can impact costs. For example, icebreakers needed to keep channels open ten months out of the year cause shipping costs in Antarctica to rise to as much as ten times the United States level. See M.J. Peterson, Antarctica: The Last Great Land Rush on Earth, 34 INT'L ORG. 377, 388 (1980). Return to text.

[97] See Corzine, supra note 91, at 15 (noting that technology has progressed to the point where oil fields in more than 5,000 feet of water are now in production and drilling in depths of 10,000 feet is not far off). Return to text.

[98] See Deihl, supra note 92, at 429. Oil companies that have expressed interest in Antarctica include British Petroleum, Elf, Hunt Oil, Texas Gulf, and Total. See DE WIT, supra note 71, at 5. Return to text.

[99] See SAHURIE, supra note 68, at 74; see also Lohmeier, supra note 4, at 141-42. Oil companies may even join forces for such an undertaking. For example, in January 1995, Shell Oil, Amoco, and Exxon collaborated to develop the deepest offshore oil rig in the Gulf of Mexico capable of extracting 60,000 barrels of oil every day. See Amy deGeneres Berret, UNCLOS III: Pollution Control in the Exclusive Economic Zone, 55 LA. L. REV. 1165, 1165 (1995). "Ten years from now production from 1,000 feet will be considered common and shallow . . . . In the past five years, more new [oil technologies] have been introduced than in the previous 50 . . . [and] every three years the technology has become obsolete." Sostack, supra note 66, at 8. Return to text.

[100] From the beginning of humanity to 1945, it took 10,000 generations to reach a world population of 2 billion. See AL GORE, EARTH IN THE BALANCE 30-33 (1992). In the span of just one generation, it will increase from 2 to 9 billion. From 5.5 billion in 1992, the world will be subjected to a population explosion reaching 9 billion by 2032. See id. This "Lemming syndrome" indicates that demands for oil will undergo a corresponding increase. See Chopra et al., supra note 40, at 216 (remarks by Robert Hayton). Return to text.

[101] Bryan Burrough, Polar Predicament: If Antarctic Oil Search Is a Success, Pollution, Discord May Follow, WALL ST. J., Dec. 9, 1985 at 1. The potential for Antarctic oil activity is bolstered by the fact that Arctic oil, produced under similarly harsh environmental conditions, has become a major oil source. See SAHURIE, supra note 68, at 74. Return to text.

[102] See Alexei Yu. Roginko & Matthew J. LaMourie, Emerging Marine Environmental Protection Strategies for the Arctic, 16 MARINE POL'Y 259, 264 n.34 (1992). World production of petroleum in 1994 was about 66.7 million barrels per day, or 139 quadrillion Btu, and petroleum remained the world's most heavily used source of energy. See ALMANAC, supra note 88, at 236. Return to text.

[103] See SAHURIE, supra note 68, at 74 (suggesting that the importance of Antarctic oil is more political than economic since it could alleviate the dependence of many industrialized nations on the will of a few producers, such as OPEC). Almost 100 percent of Japan's oil needs are imported. See id. at 97 n.543. Chile, one of original parties to the Antarctic Treaty, imports 60 percent of its oil. See Mitchell, supra note 28, at 97. Even some countries rich in resources, such as the United States, traditionally have preferred to bring raw materials from abroad. See SAHURIE, supra note 68, at 97. Return to text.

[104] See SAHURIE, supra note 68, at 97. Return to text.

[105] See id. The low oil prices of 1994, while benefiting consumer countries in the short term, weakened profitability for producers, which may lead to reduced oil supplies and higher prices in the medium and long term. See Gerald Karey, IAEE Conference Begins in Norway, PLATT'S OILGRAM NEWS, May 27, 1994, at 4. Return to text.

[106] Due to price drops in the 1980s, domestic U.S. oil production shrank from 4000 working rigs in 1981 to less than 2000 at the end of 1985. See SAHURIE, supra note 68, at 157-58. This reduction in domestic production raised U.S. importation of oil to 30 percent by the mid-1980s with projections of 50 percent for the 1990s. See id. Oil and petroleum products make up one of the largest U.S. imports. See CIA OFFICE OF PUBLIC AND AGENCY INFORMATION, WORLD FACT BOOK 1995, 444 (1996). Return to text.

[107] See Karey, supra note 105, at 4. Return to text.

[108] Id. Return to text.

[109] See id. Return to text.

[110] See generally Bernard P. Herber, Mining or World Park? A Politico-Economic Analysis of Alternative Land Use Regimes in Antarctica, 31 NAT. RESOURCES J. 839, 847-48 (1991). Return to text.

[111] As discussed previously, several conditions would need to occur to spur Antarctic oil exploration efforts: (1) technology capable of making Antarctic oil exploitation feasible would have to exist; (2) stability of claims would be a prerequisite before any oil exploration would begin; (3) heavy oil importing countries such as Japan, the United States, Germany, and France would need to have interior calls for securing a steady and dependable supply of oil; and (4) oil prices would have to rise. The occurrence of all of these conditions is not at all unreasonable to project. See SAHURIE, supra note 68, at 158. Return to text.

[112] See R. Tucker Scully & Lee A. Kimball, Antarctica: Is There Life After Minerals? The Minerals Treaty and Beyond, 13 MARINE POL'Y 87, 88 (1989). It is not difficult to imagine nations calling for a special diplomatic summit in order to negotiate out of the minerals ban when economic exploitation of the area's oil and mineral resources becomes feasible. Return to text.

[113] The United Kingdom has stated that "[i]f the economic pressures come on and if the demand was there . . . you would have a free-for-all in Antarctica which would destroy the environment for ever." Andrew F. Neuman, Closing the Frozen Treasure Chest: Antarctica's New Environmental Protocol, 3 FORDHAM ENVTL. L. REP. 57, 68 (1991). Return to text.

[114] See Joyner, supra note 24, at 330. Return to text.

[115] See id. Return to text.

[116] See Hinkley, supra note 3, at 43-45 (noting suggestions that the United States should assert a territorial claim in Antarctica). Return to text.

[117] The United States refused to sign the Protocol unless an escape clause (Article 25) was included. See Welch, supra note 31, at 643-44. Return to text.

[118] See Hinkley, supra note 3, at 44 n.6 (noting that the United States' interests in the Antarctic region include facilitating an increase in the global supply of mineral resources by defining rights to Antarctic mineral resources and ensuring access for the United States to all areas of Antarctica in which mineral resource activities may be determined acceptable). Return to text.

[119] U.S. Raises Objections to Antarctica Pact, N.Y. TIMES, June 18, 1991, at C6 (quoting Curtis Bohlen, Chief United States Delegate). Return to text.

[120] The U.S. uses 40 percent of the world's production of petroleum. See David L. Bowler, Policy to Control Greed, THE HOUSTON CHRON., Jan. 8, 1997. The U.S. imported 15.74 quadrillion Btus of crude oil in 1995, representing the 5th consecutive year of growth in U.S. oil consumption. See ALMANAC, supra note 88, at 235. Return to text.

[121] In 1996, 46.2 percent of the oil used in the United States was imported and imports could account for up to 71 percent of U.S. oil supplies by 2015. See Reliance on Oil Imports Rankles Alaska Senator Richard Powelson Scripps Howard, THE PLAIN DEALER, Aug. 29, 1997, at 18A. Return to text.

[122] See Welch, supra note 31, at 647. Significantly, the U.S. refrained from ratifying the minerals ban until October 1996, five years after the Consultative Parties adopted it. See Antarctic: Clinton, supra note 46. Japan had not ratified it as of June 1997. See Antarctica: Japan Delays Treaty Ratification, AM. POL. NETWORK GREENWIRE, May 20, 1997. Return to text.

[123] See Welch, supra note 31, at 649. If a large oil field is found in Antarctica that could be profitably developed, chances are good that "someone will wish to do so." Snow, supra note 87, at 4; see also Deihl, supra note 92, at 447-48 (noting that while potential political fallout could deter some states from pursuing Antarctic oil exploration, that may be outweighed by a state's oil needs). Return to text.

[124] See, e.g., Jim Rossi, Lessons from the Procedural Politics of the "Comprehensive" National Energy Policy Act of 1992, 19 HARV. ENVTL. L. REV. 195 (1995) (noting that the Iraqi invasion of Kuwait in 1990 and the Gulf War that followed ignited fears of rocketing oil prices and fueled the effort for a new national energy policy in the United States); see also Deihl, supra note 92, at 447; Davis, supra note 82, at 740 n.45 (stating that "the political instability of several oil producing countries is contributing to the wide fluctuations in oil supplies," which has raised Antarctica's stock as a potentially stable source of energy). Return to text.

[125] "As the nations of the world increasingly exhaust their available resources, it is inevitable that interest in remote regions of the planet will grow." Frants Dalgaard-Knudsen, The Greenlandic Offshore Area, 5 N.Y. INT'L L. REV. 63, 70 (1992). Return to text.

[126] See Lohmeier, supra note 4, at 161. Return to text.

[127] Article IV of the Antarctic Treaty prohibits claims of sovereignty. See Antartic Treaty, supra note 25. Return to text.

[128] See Chopra et al., supra note 40, at 218 (remarks by Christopher C. Joyner). Return to text.

[129] See Gerard J. Mangone, Defining the Indefinable: Antarctic Maritime Boundaries, in MARITIME BOUNDARIES AND OCEAN RESOURCES 227, 240 (Gerald Blake, ed., 1987). It should also be noted here that the U.S., Russia, and Japan were the last three Consultative Parties to ratify the Protocol, indicative of their interest in future Antarctic oil exploitation. See Russian Parliament Ratifies Antarctic Environmental Accord, supra note 46. Return to text.

[130] See Mangone, supra note 129, at 240. Return to text.

[131] "[I]t would be quite unrealistic to entertain the belief that sovereignty will be abandoned either in form or in substance." See Bergin, supra note 4, at 9 (citing ANTARCTIC RESOURCES POLICY: SCIENTIFIC, LEGAL AND POLITICAL ISSUES 218 (O. Vicuna ed. 1983)). Return to text.

[132] Sovereign ownership encourages individual environmental responsibility. A good example of this involves the situation in a typical neighborhood where everyone living in the neighborhood owns his own yard. Most yard owners will naturally be inclined to keep their individual yards well kept by mowing when necessary and watering the lawn when needed. Of course, there may be a minority of owners who are not concerned about the upkeep of their yards. However, when the appearance of those yards becomes too unsightly, the majority of yard-owners can usually exert enough pressure to prompt the non-mower or non-waterer into remedying the situation. Conversely, if all the yards were simply combined into one giant yard which no one person owned, the attention and concern the collective neighbors would show towards the yard would be drastically reduced since each individual neighbor would tend to blame any problems of the yard's appearance on another neighbor or forego upkeep in the belief that even if they do their share of work, the other neighbors will not. Sovereign ownership of Antarctic "yards" would have a similar affect.

The nations most likely to acquire territory in Antarctica consist primarily of industrialized nations. These nations would be more likely to conserve their individually owned areas so as to maximize future sustainability. Those nations in the minority, uncaring about sustainability of their own accord, could similarly be prompted into proper environmentally protective measures by reliable enforcement of environmental regulations by all Antarctic Treaty System nations. Individual ownership in Antarctica, tempered by actively enforced environmental protection requirements, equates to a realistic governing regime for the Antarctic region which will effectively balance environmental concerns with economic demands. Return to text.

[133] Deihl, supra note 92, at 454-55 Return to text.

[134] See Catherine Redgwell, Current Developments—Public Internaitonal Law: Antarctica, 40 INT'L & COMP. L.Q. 976, 981 (1991) ("The environmental Protocol does not address the sovereignty issue, merely stating in Article 4 that the Protocol neither modifies nor amends the Antarctic Treaty."). Return to text.

[135] A dramatic analogy to the Antarctic Treaty signatories' avoidance of the problem of sovereignty claims in hopes that they will never have to deal with them is the world's treatment of Germany in the years preceeding World War II. Rather than confronting Hitler's Germany after its intitial territorial aggressions, the Allies fooled themselves into thinking that Hitler would be satisfied with those early acquisitions and the problem would dissipate of its own accord. The Allies' purposeful avoidance of the problem embodied by Hitler's Germany ultimately created a far greater problem culminating in the Second World War. Purposely diverting attention from the sovereignty problem in Antarctica may breed similar dangers to the Antarctic Treaty System nations in the near future, as armed conflict could easily erupt in a scramble to secure oil resources in the region. After all, only a few years ago the U.S. sent hundreds of thousands of military troops to the Persian Gulf to ensure a secure supply of Middle East oil. See Douglas S. Sandhaus, Should Congress Open Up the Alaskan Coastal Plain to Oil Exploration? A Discussion of Options, 2 U. BALT. J. ENVTL. L. 43, 48 (1992) (discussing the debate about "whether the economics of foreign oil were worth sacrificing the blood of American soldiers"). Return to text.

[136] Article 11 of the Protocol provides for a Committee for Environmental Protection, which could exercise its powers to provide guidance on the need for additional Annexes or amendments to the Protocol. See Protocol, supra note 26, art. 11, 12. Article 25 provides that the Protocol "may be modified or amended at any time." Protocol, supra note 26, art. 25. Return to text.

[137] Chistopher C. Joyner, Japan and the Antarctic Treaty System, 16 ECOLOGY L.Q. 155, 169 n.64 (1992) (quoting Mr. Kuroda, Japanese delegate to the U. N. General Assembly). Return to text.

[138] See generally D.R. Rothwell, The Madrid Protocol and Its Relationship with the Antarctic Treaty System, in ANTARCTIC AND SOUTHERN OCEAN LAW AND POLICY OCCASIONAL PAPERS 25 (1992). Return to text.

[139] See Welch, supra note 31, at 643-44; see also, Protocol, supra note 26, art. 25, para. 5(b). The walkout clause states

If any such modification or amendment has not entered into force within 3 years of the date of its adoption, any Party may at any time thereafter notify to the Depository of its withdrawal from this Protocol, and such withdrawal shall take effect 2 years after receipt of the notification by the Depository.

Id. Return to text.

[140] See Welch, supra note 31, at 647. Return to text.

[141] Id. at 651. Return to text.

[142] Id. Return to text.

[143] See Neuman, supra note 113, at 78. Return to text.

[144] See Welch, supra note 31, at 655. Return to text.

[145] See id. A similar loophole allows tour companies to register their vessels in non-Antarctic Treaty nations to avoid compliance with environmental protection requirements im posed under the Antarctic Treaty. See Shaul, supra note 45, at 7; see also Hinkley, supra note 3, at 43 (pointing out that "since nonparties are not bound by the 'freeze' provisions of article IV, any nonparty could stake its claim to Antarctica as soon as it could get there"). Return to text.

[146] See John J. Borceló III, The International Legal Regime for Antarctica, 19 CORNELL INT'L L.J. 155, 158 (1986). Return to text.

[147] See generally Deihl, supra note 92, at 448-49 (pointing out that some ships allegedly conducting scientific research are actually looking for oil). Return to text.

[148] See Stoller, supra note 19, at 362. Return to text.

[149] See id.; see also Christopher C. Joyner, Protection of the Antarctic Environment: Rethinking the Problems and Prospects, 19 CORNELL INT'L L.J. 259, 269-70 (1986). Return to text.

[150] See Joyner, supra note 149, at 268-69; Stoller, supra note 19, at 362. Return to text.

[151] See id. Return to text.

[152] See Paul Brown, Ship on Mission to Clean Up Polar Waste, THE GUARDIAN, July 19, 1997, at 4 (noting that the 26 nations operating in Antarctica have failed to honor the Madrid Protocol, a 1991 agreement to remove waste from the continent). Return to text.

[153] See Neuman, supra note 113, at 68. Return to text.

[154] See generally Donald R. Rothwell & Stuart Kaye, Law of the Sea and the Polar Regions: Reconsidering the Traditional Norms, 18 MARINE POL'Y 41, 58 (1994). Return to text.

[155] See Chopra, supra note 40, at 209. Return to text.

[156] See S.K.N. Blay, New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol, 86 AM. J. INT'L L. 377, 399 (1992). Return to text.

[157] Perhaps CRAMRA could be revived and altered to meet the needs of the Antarctic Treaty System parties. See Convention on the Regulation of Antarctic Mineral Resource Activities, June 2, 1988, 27 I.L.M. 868 (not in force) [hereinafter CRAMRA]. As one commentator has noted, "[i]ncorporating the CRAMRA approach, or a similar accomodation, into the Protocol is necessary to achieve a comprehensive and effective regime of Antarctic environmental protection." Francicso Orrego Vicuna, The Protocol on Environmental Protection to the Antarctic Treaty: Questions of Effectiveness, 7 GEO. INT'L ENVTL. L. REV. 1, 13 (1994). The U.K. stated that CRAMRA "incorporates some of the strictest environmental protection provisions known in international law." Redgwell, supra note 134, at 977 (quoting H.C. Deb., Vol. 171, col. 693 (May 4, 1990), per the Parliamentary Under-Secretary of State, Foreign and Commonwealth Affairs). Return to text.

[158] Jus cogens, codified in the Vienna Convention on the Law of Treaties, prohibits a treaty from becoming valid if it conflicts with a peremptory norm of international law. See Francesco Francioni, Legal Aspects of Mineral Exploitation in Antarctica, 19 CORNELL INT'L L.J. 163, 174 n.42 (1986). Return to text.

[159] See Mary Lynn Canmann, Antarctic Oil Spills of 1989: A Review of the Application of the Antarctic Treaty and the New Law of the Sea to the Antarctic Environment, 1 COLO. J. INT'L ENVTL. L. & POL'Y 211, 219-20 (1990). Return to text.

[160] See S.K.N. Blay et al., Antarctica After 1991: The Legal and Policy Options, in ANTARCTIC AND SOUTHERN OCEAN LAW AND POLICY 10 (1989). This is partly because the continental shelf doctrine was already established under customary international law when the Antarctic Treaty was signed. See VICUNA, supra note 66, at 127. Designation of a continental shelf is very important because oil and gas are the principal non-living resources found there. See JOSEPH J. KALO ET AL., COASTAL AND OCEAN LAW 301 (2d ed., 1994). Return to text.

[161] See SAHURIE, supra note 68, at 442. Return to text.

[162] See Joyner, supra note 24, at 305. Return to text.

[163] See Developments in the Law—International Environmental Law, 104 HARV. L. REV. 1484, 1537-38 (1991). Return to text.

[164] See Joyner, supra note 24, at 311. Return to text.

[165] A condominium consists of the joint exercise of sovereignty over a particular territory by two or more states. See Peterson, supra note 96, at 395. Return to text.

[166] See Oxman, supra note 38, at 223. This would keep Antarctica under the control of countries with experience in managing the area. See Lohmeier, supra note 4, at 166. Return to text.

[167] See Oxman, supra note 38, at 222. Return to text.

[168] See Joyner, supra note 15 or 92, at 125. Return to text.

[169] See id. Return to text.

[170] See Peterson, supra note 96, at 396 (noting that the U.S. proposed an Antarctic condominium in 1948, which was rejected). Return to text.

[171] A consortium is similar to a condominium in that states would jointly regulate Antarctica. However, a significant difference would be that all territorial claims would merge. See id. Return to text.

[172] See id. Return to text.

[173] Common heritage of humankind derives from the law of the sea regime for governing deep sea-bed mining, which calls for all exploitation to be carried out for the benefit of the world as a whole. See UNCLOS, supra note 27, at Preamble. Return to text.

[174] OPEC's primary objective is to control oil prices and supply. See SAHURIE, supra note 68, at 74. Thus, it would surely disfavor a pro-production regime in Antarctica. Past efforts of OPEC to use oil supply control for political and economic leverage is what prompted states to seek secure supply sources in the first place. See id. OPEC's share of the world oil market will exceed 50 percent by the year 2010. See U.S. Geological Survey Team Gives Undiscovered Reserves Outlook, PLATT'S OILGRAM NEWS, Oct. 23, 1991, at 2. Return to text.

[175] See Hinkley, supra note 3, at 52-53 (noting that the world park theory has never been acceptable to the Consultative Parties). Return to text.

[176] See Davis, supra note 82, at 735. Return to text.

[177] See Hinkley, supra note 3, at 53. Return to text.

[178] Argentina has sent families to live year-round on its research bases, including expectant mothers to give birth on the Antarctic continent. See Peterson, supra note 96, at 392. Other claimant states have stationed postmasters on Antarctica for the sole purpose of establishing sovereignty. See id. Return to text.

[179] See Joyner, supra note 149, at 271. The common heritage of humankind principle would require claimant states to relinquish their claims, a scenario that will not occur. See Ellen S. Tenenbaum, A World Park in Antarctica: The Common Heritage of Mankind, 10 VA. ENVTL. L.J. 109, 113 (1990). "[T]he Consultative Parties are unified in their conviction that exploitation of Antarctic offshore mineral resources is not subject to regulation by the International Sea-Bed Authority." Note, Antarctic Resources Jurisdiction and the Law of the Sea: A Question of Compromise?, 11 BROOK. J. INT'L. L. 45, 71 (1985) [hereinafter Antarctic Resources Jurisdiction]. Return to text.

[180] See Antarctic Resources Jurisdiction, supra note 185, at 53. Return to text.

[181] Under division, Antarctica would be carved up into segments that would come under the sovereign control of states participating in division. See Peterson, supra note 96, at 391. Return to text.

[182] See id. Return to text.

[183] See WILLIAM E. WESTERMEYER, THE POLITICS OF MINERAL RESOURCE DEVELOPMENT IN ANTARCTICA: ALTERNATIVE REGIMES FOR THE FUTURE 59 (1984); see also Lohmeier, supra note 4, at 165. Return to text.

[184] In Antarctic oil exploration, free riders might monitor prospecting activities until a discovery was made. The free rider could then move in and commence exploitation without incurring the expenses of exploration. This would discourage companies from ever prospecting to begin with. Division would eliminate free riders by allowing the sovereign to allocate areas for exclusive exploration activity through licensing or permits. Return to text.

[185] See Elaine F. Foreman, Protecting the Antarctic Environment: Will a Protocol be Enough?, 7 AM. U. J. INT'L L. & POL'Y 843, 848-49 (1992). Courts have held that discovery alone does not establish territorial sovereignty. See id. Discovery merely conveys an inchoate title that requires completion by occupation within a reasonable time. See id. Return to text.

[186] See Peterson, supra note 96, at 392. Greenland is one example of another remote area subjected to less severe effective occupation requirements. See Hinkley, supra note 3, at 46 (citing the Island of Palmas case, (1932) 2 UNRIAA 1105, the Clipperton Island Award, (1928) 2 UNRIAA 829, and the Legal Status of Eastern Greenland case, 1933 P.C.I.J. (ser. A/B) No. 53, at 22, for the proposition that a relaxation of the traditional rule of effective occupation can be made when the land in question is essentially uninhabited merely by "effective administration"). Return to text.

[187] See Foreman, supra note 185, at 848. Some Antarctic claims do overlap. Chile's claim is largely overlapped by British and Argentinean claims. See Stoller, supra note 19, at 342. Return to text.

[188] This might satisfy critics who argue for the creation of a stronger institutional mechanism or a role for the United Nations in order to limit the Consultative Parties' control over the region. See, e.g., VICUNA, supra note 66, at 488-90. Return to text.

[189] The International Court of Justice is an organ of the United Nations which functions as an international tribunal hearing cases involving issues of international dispute. Return to text.

[190] See Lohmeier, supra note 4, at 170. Return to text.

[191] See Oxman, supra note 38, at 242-43. Laws of supply and demand dictate that if more oil is available on the market, the price of that oil will tend to decrease. Price decreases benefit consumers. Thus, more oil benefits consumers by making oil both more affordable and widely available. Return to text.

[192] See Blay, supra note 156, at 387 (asserting that since the Exxon Valdez incident, international awareness of environmental issues has significantly increased). Return to text.

[193] See State of the Environment in Antarctica and its Impact on the Global System, Report of the Secretary-General at 9, U.N. Doc. A/46/590 (1991). Return to text.

[194] Offshore oil drilling in Antarctica is almost certain to have accidents. See Deihl, supra note 92, at 449. A massive oil spill could affect heat absorption of Antarctica's ice sheet, resulting in a rise in ocean levels. See Jonathan D. Weiss, Note, The Balance of Nature and Human Needs in Antarctica: The Legality of Mining, 9 TEMP. INT'L & COMP. L.J. 387, 391 (1995). Collisions between two vessels or contact with a stationary object were the primary causes of tanker spills between 1974 and 1992. See Oil Spill Intelligence Report (Cutter Information Corporation, Arlington, Mass.), Feb. 18, 1994. Improved navigational technologies might prevent or reduce such occurrences. Return to text.

[195] See CHRISTIE, supra note 57, at 242-43. Oil spills are not the most devastating source of pollution to the seas. Intentional discharges, ocean dumping, and land-based sewage and wastes are much more destructive to the marine environment. See id. Interestingly, at least one scientific report has concluded that while some animals suffer when oil spills occur, others benefit. See William Booth, Oil Spills: Some Animals Benefit, THE WASH. POST, Aug. 21, 1989, at A2. Return to text.

[196] It was estimated that oil production in part of the Arctic would require over 200 miles of roads, 400 miles of pipelines, 51 exploratory wells, 54,275 tons of waste-drilling muds, and 3,375 helicopter flights. See D.A. Bolze & M.B. Lee, Offshore Oil and Gas Development: Implications for Wildlife in Alaska, 13 MARINE POL'Y 231, 231 (1989). Advances in technology will likely reduce such intrusive activities. Return to text.

[197] For example, the 1996 Antarctic Science, Tourism, and Conservation Act required vessels under U.S. jurisdiction that transport oil in the Antarctic to amend their shipboard oil pollution emergency plans by September 30, 1997. See Vessel Operators in Antarctica Must Amend Emergency Plans, HAZMAT TRANSPORT NEWS, Apr. 15, 1997, at 52. Return to text.

[198] See Braslow, supra note 95, at 354 (discussing Section 377.2425, Florida Statutes (1995), which requires oil companies to post a bond or pay into a trust fund providing for clean-up costs in case of spills before drilling is permitted). Return to text.

[199] See POLAR PROSPECTS, supra note 62, at 139. Return to text.

[200] See JOHN WARREN KINDT, MARINE POLLUTION AND THE LAW OF THE SEA 1178 (1986). Return to text.

[201] See POLAR PROSPECTS, supra note 62, at 139. Estimates of future oil spills in the Bering Sea suggest that for every billion barrels of oil produced, four spills of 1,000 to 10,000 barrels in size, and two spills of more than 10,000 barrels can be expected. These figures would likely be higher for Antarctica due to its deeper waters and harsher climate. See id. at 137. Return to text.

[202] See Braslow, supra note 95, at 346-47. Return to text.

[203] See Ambrose O. O. Ekpu, Environmental Impact of Oil on Water: A Comparative Overview of the Law and Policy in the United States and Nigeria, 24 DENVER J. INT'L L. & POL'Y 55, 59 (1995). Return to text.

[204] See POLAR PROSPECTS, supra note 62, at 137. Return to text.

[205] See id. Return to text.

[206] See Tenenbaum, supra note 179, at 128. Return to text.

[207] The largest oil spill in history occurred on March 24, 1989, when the tanker Exxon Valdez grounded on Bligh Reef and spilled 250,000 barrels (11 million gallons) of crude oil into Prince Edward Sound. See Douglas S. Sandhaus, Should Congress Open Up the Alaskan Coastal Plain to Oil Exploration? A Discussion of Options, 2 U. BALT. J. ENVTL. L. 43, 47 (1992). The Exxon Valdez spill resulted in the bodies of 155 bald eagles, 36,471 other birds, and 166 sea otters recovered with estimates of actual deaths ranging from 3 to 100 times the known body count. See id. Return to text.

[208] From the moment man first set foot on Antarctica, he began to pollute it. Tin cans still sit on shelves in the hut of Captain Robert F. Scott more than 85 years after his trip to the South Pole. See Stoller, supra note 19, at 335. Wooden crates and tins still litter Ross Island; evidence of Scott and Ernest Shackleton's visits nearly a century ago. See id. at 351 n.133. Return to text.

[209] See id. at 351-52. Return to text.

[210] See id. at 352. Return to text.

[211] See Richard Roura, Greenpeace Reports Fuel Leak in Antarctic, N.Y. TIMES, Nov. 6, 1994, at A5. Return to text.

[212] See Stoller, supra note 19, at 352. Return to text.

[213] See Mary Ann Cunningham, Antarctica, in ENVIRONMENTAL ENCYCLOPEDIA 44 (William P. Cunningham et al. eds., 1994). Return to text.

[214] See Stoller, supra note 19, at 359. Return to text.

[215] See Boyce Rensberger, Grounded Ship's Fuel Imperils Antarctic Coast, THE WASH. POST, Jan. 31, 1989, at A3. The wreck was not officially cleaned up until 1993. See International Argentina, PLATT'S OILGRAM NEWS, Jan. 18, 1993, at 6. Return to text.

[216] See Rensberger, supra note 215, at A3. Return to text.

[217] See Shaul, supra note 45, at 7; see also Angelini & Mansfield, supra note 14, at 178. Return to text.

[218] See Shaul, supra note 45, at 7 (noting that individual tourists bear no burden of responsibility for obeying environmental laws in Antarctica); Angelini & Mansfield, supra note 14, at 180. Return to text.

[219] Abraham Lincoln, Speech to the House of Representatives (June 16, 1858) in THE LIVING LINCOLN 211-12 (Paul M. Angle & Earl Schenck Miers, eds., 1955). Return to text.

[220] See Ekpu, supra note 203, at 55. Return to text.

[221] See id. Current estimates predict that worldwide oil production will begin terminal decline around 2010. See Will Harvie, Go Abroad, Young Company, OILWEEK, June 3, 1996, at 18. Return to text.

[222] See Epku, supra note 203, at 55. Return to text.

[223] Interestingly, this clash of interests infected the formation of the Protocol because the participants in the Protocol negotiation were divided between pro-mining and pro-environment states. This polarization at the negotiations is credited with producing a flawed Protocol. See Vicuna, supra note 158, at 11. Return to text.

[224] See Edith Brown Weiss, International Environmental Law: Contemporary Issues and the Emergence of a New World Order, 81 GEO. L.J. 675, 707 (1993) (predicting that environmental protection and economic development will work in increasing cooperation over the next several decades). Return to text.

[225] See Bob Davis, As the Cold War Ends, Many Nations are Cutting Their Antarctic Research, THE WALL ST. J., Dec. 27, 1991, at B4. Return to text.

[226] See id. (quoting Alfred Fowler, head of Council of Managers of National Antarctic Program). Return to text.

[227] Alan Kovski, Antarctica: A Continent is Placed Off Limits to Oil Exploration, THE OIL DAILY, Oct. 8, 1991, at 2. Return to text.

[228] Of course, this suggestion assumes that keeping Antarctica in its relatively pristine form is not more valuable than exploiting its oil resources. Few would argue that a virgin Antarctica, untouched by human hands, would be wonderful. However, as this Comment points out, humanity has already left its mark on Antarctica in the form of scientific research, tourism, and the pollutants that accompany such enterprises. What is therefore both desirable and realistic is an Antarctica minimally impacted by human activity, which benefits humanity by supplying an important global resource should the need arise, without diminishing or despoiling the continent's inherent spiritual value and intrinsic wildness. See Campell-Johnson, supra note 18 (noting that "the Romantics invested the wilderness with a power that . . . reflected man's deepest spiritual and emotional needs for something greater than himself"). Return to text.

[229] See Redgwell, supra note 134, at 981 (stating that "the problem of Antarctic mineral resource activities has merely been postponed rather than resolved"). Return to text.

[230] See Deihl, supra note 92, at 424. Return to text.

[231] See Redgwell, supra note 134, at 979 ("The question remains whether the Protocol has indeed achieved the goal of settling the minerals issue without creating a legal vacuum when the prohibition is lifted."). Return to text.

[232] See Vicuna, supra note 157, at 13 (noting that "the Protocol falls far short of its proclaimed virtues"). Return to text.

[233] Any claim that the primary motivating force behind the Protocol's minerals ban provision was the desire to preserve Antarctica's virgin landscape ignores the reality of the situation. If pools of oil had been bubbling-up as the Protocol negotiations proceeded, can a serious argument be made that the Consultative Parties would not have discarded the minerals ban proposal in favor of a declaration allowing oil extraction? The fundamental rule of inter national politics that nations inherently act in their own interests, and the history of the Consultative Parties in world affairs, combine to answer with a resounding no. Acquiescence by the Consultative Parties to an Antarctic minerals ban, despite the presence of known oil fields in the area, would run counter to their own best interests. Reality dictates that such self-defeating behavior would not have occurred.

The true motivations for adopting a minerals ban derived primarily from the widespread belief that existing oil reserves would provide adequate energy sources well into the next century, the knowledge that technology was not yet available which would make oil development in the region feasible, and the fact that no confirmed oil deposits had yet been located in Antarctica. If a sizable Antarctic oil field was found today, those nations would scramble to find a way to invalidate, overturn, or amend the minerals ban, notwithstanding the Protocol's "mandate" prohibiting minerals activity for at least fifty years. In consideration of this reality, it is certainly noteworthy that during the Protocol negotiations, only 8 countries supported a total ban on future Antarctic minerals activities, while 18 preferred to refrain from burning the bridge to potential Antarctic resource enrichment. See Redgwell, supra note 134, at 978. Return to text.

[234] Oil exploration around the globe has been increasing of late. For example, Phillips Petroleum's drilling plans for the next five years calls for "a tremendous amount of international activity." See Overseas Privatization Drives Global Business Trends, Phillips Exec Says, PETROLEUM FIN. WEEK, Aug. 11, 1997. It is only a matter of time before oil companies direct a similar "tremendous amount" of exploration activities at the Antarctic region. Return to text.

[235] This is the scenario that the Protocol was intended to protect against, as the Consultative Parties adopted it in recognition of "the need to strengthen the Antarctic Treaty system so as to ensure that Antarctic [sic] shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord." See Protocol, supra note 26, at Preamble. Return to text.

[236] See Hinkley, supra note 3, at 43 ("The efforts of nations with a real or expected stake in Antarctica to protect their individual interests has increased the potential for international conflict."). The "will to power" and instincts of self-preservation could push nations to the brink of war. According to Nietzsche, the will to power is the fundamental driving force of humanity, consisting of a "will to appropriate, dominate, increase, grow stronger." FRIEDRICH NIETZSCHE, THE WILL TO POWER 367 (Walter Kauffmann, ed., 1967). Return to text.

[237] See Hinkley, supra note 3, at 43 (addressing the various interests likely to be asserted when a minerals rush begins in Antarctica). Return to text.

[238] Such critical habitat areas could be designated in similar fashion to National Parks and Wildlife Refuges in the United States. Return to text.

[239] See Mitchell, supra note 28, at 101. Return to text.

[240] See Vicuna, supra note 157, at 3. Return to text.

[241] Enforcement could be accomplished in a variety of ways. Claimant states could enforce the regulations internally through adherence to a commonly agreed upon administrative scheme, or a special enforcement agency could be created consisting of representatives of all claimant states or all treaty members. The vital element to whatever enforcement mechanism is agreed upon is unity. All interested parties must unilaterally support and actively promote the terms of any agreement if the regime is to succeed. Return to text.

[242] See Weiss, supra note 224, at 708. Return to text.

[243] See Redgwell, supra note 134, at 980 (quoting art. 25(5) of the Protocol). Return to text.

[244] See id. Return to text.

[245] See id. at 981. Return to text.

[246] This would fail to provide for "the development of a comprehensive regime for the protection of the Antarctic environment and dependent and associated ecosystems . . . in the interest of mankind as a whole." Protocol, supra note 26, at Preamble. Return to text.

[247] As one commentator remarked before the adoption of the Protocol, "[u]nless an internationally acceptable Antarctic resource regime is soon developed, conflict will inevitably arise in the Southern Ocean." Allan Young, Note, Antarctic Resource Jurisdiction and the Law of the Sea: A Question of Compromise, 11 BROOK. J. INT'L L. 45, 71 (1985). Due to the Protocol's shortcomings, Young's warning resonates with equal force today. Return to text.

[248] The U.S. has enacted several statutes to protect the Antarctic environment, including the Antarctic Conservation Act of 1978, which implements the Antarctic Treaty and prohibits the discharge of pollutants in Antarctica by U.S. citizens. See Andersen, supra note 6, at 305. Return to text.

[249] See id. at 342-43. Return to text.

[250] As the United Kingdom has stated, "there [can] be no comprehensive system for the protection of the Antarctic environment that does not deal with the long term issue of minerals . . . before the need for it arises." Redgwell, supra note 134, at 978 (citing H.C. Deb., Vol. 182, col. 61 (Dec. 4, 1990)). Waiting until extractable oil is discovered in Antarctica to address the inevitable need for sensible environmental regulations is foolhardy. Prophylactic measures must be taken before the need for them arises if the Antarctic environment is to be adequately protected. Return to text.

[251] Vicuna had the foresight to point out that "[t]here can be little doubt that minerals are available in Antarctica, and it is therefore an artifice to attempt to ignore the issue. When minerals are eventually discovered, the Protocol will prove to be fundamentally unrealistic, and its chances of survival will be virtually nil." Vicuna, supra note 158, at 11. Return to text.

[252] See Bergin, supra note 4, at 40 (warning that Antarctica "could become the setting for an international politico-legal nightmare"). Return to text.

[253] As previously mentioned in this Comment, CRAMRA could serve as an excellent framework for establishing substantive enforcement mechanisms for environmental protection of Antarctica. See CRAMRA, supra note 158, at art.3 (prohibiting Antarctic mineral resource activities outside the Convention), art. 8(2) (holding operators strictly liable for damage caused by mineral activities), art. 13 (prohibiting mineral activities in protected areas designated by the Consultative Parties), art. 37(7)(d) (requiring compilation of an environmental impact assessment prior to beginning any exploration activity), art. 53-54 (requiring environmental impact assessment and permit before any exploitation activity). These measures, conspicuously absent from the Protocol, provide an excellent framework to flesh-out a comprehensive Antarctic minerals governing agreement. Return to text.

[254] F. SCOTT FITZGERALD, THE GREAT GATSBY 189 (Collier Books 1992) (1925). Return to text.

XI. CONCLUSION
X. THE OUTLOOK ON ANTARCTIC OIL
B. Hidden Dangers—Tourism and Scientific Pursuits
A. The Oil Spill as Environmental Nemesis
IX. THE ENVIRONMENTAL CONTROVERSY OF ANTARCTIC OIL PRODUCTION
C. A Division Regime
B. A World-Park or Common Heritage Regime
A. A Condominium Regime
VIII. RESOLVING THE SOVEREIGNTY ISSUE - POSSIBLE LAND USE REGIMES
VII. THE CURRENT PROTOCOL IS A TEMPORARY SOLUTION TO A RIPENING PROBLEM
VI. NATIONAL APPETITES FOR OIL WILL SWALLOW ANTARCTIC AGREEMENTS
B. Future Global Demand
A. Increased Price and Improved Technology
V. NECESSARY CONDITIONS FOR ECONOMIC OIL EXPLOITATION IN ANTARCTICA
IV. THERE'S GOLD IN THEM THERE HILLS&EMDASH ;PROSPECTS OF OIL IN THE ANTARCTIC REGION
C. United Nations Convention on the Law of the Sea
B. The Protocol on Environmental Protection to the Antarctic Treaty
A. The Antarctic Treaty
III. ANTARCTIC GOVERNING AGREEMENTS
II. GEOGRAPHY AND GEOLOGY OF ANTARCTICA