The Legal Status of Ice in the Antarctic Region

Emily Cripss*

I. INTRODUCTION

The status of ice in international law has been discussed most frequently in relation to the exploitation of ice as a natural resource. The importance of ice in relation to the rights of other states, and the delineation of boundaries of both territorial seas and exclusive economic zones (EEZs), appears to have received less attention. This particular issue has come to the fore in recent years, since the declaration by the Australian government, in July 1994, of a 200 nautical mile (NM) EEZ around the Australian Antarctic Territory (AAT). Whether ice should be treated as analogous to land or to the high seas is unclear in international law. Australia does not appear to have adopted any definitive position. In light of the fact that the extent of the boundary of the AAT may vary by hundreds or even thousands of kilometres annually, due to sea ice formation and retreat, it would seem reasonable that some position should be adopted. The physical characteristics of the Antarctic continent also illustrate the importance of clarifying the status of ice. Approximately 82% of the coast of Antarctica consists of ice cliffs and shelves. Only 5% is rock outcrops, and the remainder is glacial. To avoid determining the status of ice will leave a large proportion of the continent in an uncertain legal status. Other issues, such as the sovereignty of ice, also need to be considered if the exploitation of ice is to be undertaken. This paper addresses the issue of the status of ice in international law, with particular reference to the Antarctic Treaty System (ATS).

There are several ways to classify ice depending on its physical characteristics. There is, however, no adopted uniform approach to the issue. This needs to be addressed by international law in order to clarify the position of maritime boundary delimitations in ice-covered regions. It has been noted that ‘determining traditional baselines in Antarctica is very difficult’. The issue has not been considered within the ATS, with few references made to ice.

Similarly, the United Nations Convention on the Law of the Sea (LOSC), fails to address the issue. Joyner states that:

The problems associated with determining Antarctic territorial sea baselines was first recognised in 1920 by the Committee on British Policy in the Antarctic. It was suggested by this committee that the coastline of terra firma be used, except where there were ice barriers (now referred to as ice shelves). This is an important exception, but has never been implemented. The AAT includes Prydz Bay, thought to be one of the richest Antarctic sources of living marine resources, particularly krill. The Amery Glacier extends into Prydz Bay. It therefore impacts heavily on the amount of bay over which Australia may exert either complete control as a territorial sea, or limited control as an EEZ.

II. ICE IN INTERNATIONAL LAW

The legal position of ice appears different in the Northern Hemisphere in comparison to the Southern Hemisphere. This could be attributable to the different legal regimes and physical characteristics of the two polar regions. It has been suggested that there is a further variation in the status of ice within the Southern Hemisphere depending on the physical characteristics of the ice itself. For example, an iceberg may be considered part of the high seas, whereas an ice shelf is merely an extension of the land. There is, however, an alternative view which holds that the status of the ice depends on its stability. This latter view suggests that if, for example, the ice remains stable it should be treated as land. These views are different to the classification in the Northern Hemisphere where, due to the perennial nature of the ice, it is treated as ocean.

The classification of ice in the Southern Hemisphere, on the basis of its physical characteristics, appears to have a logical basis. Joyner divides ice in the Southern Hemisphere into the categories of glacier ice, sea ice, shelf ice, icebergs and ice islands.

1. Glacier Ice

Glacier ice, or glacies firma includes ice sheets and ice shelves which are formed by glacial ice. In general, such ice lies on top of the continent, and is permanent in character. Glacier ice is found over much of the Antarctic continent, and it is therefore treated as analogous to land under international law. The actual status of the ice, therefore, is dependent on the status of the area in which it is located. The question of the status of the ice relies, therefore, on the issues of sovereignty and the rights of claimant states in Antarctica.

2. Sea Ice

As its name suggests, sea ice initially forms by the freezing of sea water. In general, sea ice occurs annually, however in some areas sea ice may exist for longer periods (‘multi-year’ sea ice). Such ice may be additionally composed from snow accumulation and is therefore not merely frozen sea water. Joyner states that:

Sea ice, or pack ice, therefore has the same legal status as the surrounding ocean in international law. This would appear to be an adequate classification for sea ice forming annually, but the existence of sea ice for longer periods may cause some problems with the actual application of the definition adopted by Joyner.

3. Shelf Ice

Shelf ice is distinguished from glacier ice, in that it extends beyond the margin of the land, and into the ocean. It is formed by the movement of glacier ice from the continent and the accumulation of snow. It is inherently unstable due to the calving of icebergs. This is, perhaps, where the Joyner’s classification loses logic. Ice shelves display similar characteristics to glacier ice. In fact, it may be difficult to determine where the glacier ends, and the ice shelf begins. The shelves are more permanent than sea ice, and some are capable of occupation. If, however, that is sufficient for the ice to be considered analogous to land, why should shelf ice be different to some areas of ‘multi-year’ sea ice, which may also be capable of habitation? Joyner concludes that:

This would appear to be a superficial distinction. In Antarctica, the weight of the snow and ice on the continent has depressed the land surface, such that in many cases the ice/land interface is below sea level. In other cases there may also be liquid water present underneath the glacier itself. Any determination of the border between the two categories as proposed by Joyner may be highly subjective, and therefore it appears that the test is not clear.

4. Icebergs

Icebergs are perhaps the most commonly considered issue in relation to the status of ice. In particular, discussions have arisen concerning the exploitation of icebergs as a source of fresh water. The question of iceberg ownership, transportation of icebergs through territorial seas, and associated issues of liability and pollution have received some attention. The issue depends primarily on: (1) the status of the Antarctic continent coinciding with the location of the iceberg, (2) the status of Antarctica in relation to the parties to the ATS and the United Nations, and (3) the theory of common heritage.

Essentially icebergs are bodies of ice which have calved from an ice shelf. Their status therefore depends, to some extent, on the conclusions reached regarding ice shelves. If an ice shelf is considered to be part of the high seas, then logically an iceberg will also form part of the high seas. If, however, an ice shelf has standing analogous to that of land, then it could be suggested that an iceberg may also be ‘land’, as it also could have formed from a glacier, and may be capable of occupation.

Similarly, the issue of the movement of the ice from one jurisdictional area into another may cause problems. If an iceberg can be owned by the coastal state from which it originates, what is the position if that berg moves outside the coastal state’s EEZ? Such questions appear to have been inadequately discussed in international law.

5. Ice Islands

Joyner makes a somewhat artificial distinction between ice islands and icebergs, on the basis of size, and the fact that ice islands originate from fast ice, or pack ice, whereas icebergs originate from glaciers. He states, however, that the distinction is not usually applied to the Antarctic region. As with icebergs, the position of ice islands may depend on the status of the region from which it originates.

An alternative classification system is that proposed by Orrego-Vicuņa, which relies merely on the stability of the ice. Orrego-Vicuņa states that:

Therefore, if the ice was predominantly stable, it would have the same legal status as land. If it were moving, however, it would be analogous to the high seas. This distinction appears to be logical and clear, however, the question then arises as to how much movement is ‘allowed’ before the ice can no longer be considered stable. Ice shelves can move seaward at rates of several hundred kilometres per year. This rate may be comparable to that of sea ice, which may remain in one particular region, although moving continuously.

Icebergs may also cause problems within this classification system. An example of this would be the iceberg Trolltunga which was tracked using satellite images. The iceberg was over one hundred km long and fifty km wide. It was tracked following the Weddell Sea coast for two years until it grounded on a shoal near Berkner Island for a period of five years. During that time it changed its position only slightly, and therefore was essentially stable. Trolltunga later moved again, breaking up into smaller pieces and melting. This illustrates the problems associated with both the classification methods of Joyner and Orrego-Vicuņa. If Orrego-Vicuņa’s classification were to be applied, the Trolltunga iceberg would have originally been classified as land. Once it started moving it would have been analogous to the high seas, although it would have inherited the status of land once it grounded and was therefore sufficiently stable. Joyner’s classification may also have produced similar changes in status, as the ice originated from a glacier, and hence it would have been classified as land. Consequently its status would depend on the status of the area from which it originated. As a result of the iceberg’s separation from the glacier, it gained the status of the high seas, despite its enormous size, as it was no longer attached to the land. Its very size would suggest that it may also be considered as an ice island under Joyner’s classification, and therefore it may be analogous to land. Once the iceberg grounded, and therefore was attached to the land, it attained the status of land, which it lost once it began to move again. Therefore with the existing classification systems for ice in the Antarctic region, there is the chance that the status of the ice will change during the life cycle of the ice itself. This may cause problems in international law, as it may be necessary to determine the exact time when the status changed, which would require a subjective judgment. Although such a critique may appear pedantic, it may be justified if the scenario presented by some authors for the exploitation of icebergs as a fresh water reserve is made possible.

This critique may also be grounded in the issue of determination of baselines for EEZs and other maritime boundaries. If areas of ice are considered to be land, or analogous to land in international law, then the outer boundary of an EEZ may extend beyond the area which may be covered if the ice were considered to be sea. The question of ice ‘ownership’ may also be raised in relation to liability for both damage caused to and by icebergs.

There appears to be no customary international law in relation to the status of ice in the Antarctic region. Consideration must therefore be given to its position under various international treaties, and in particular LOSC. Unfortunately there is little guidance in this area. The only reference to ice in LOSC is in Article 234, which states that coastal states can adopt laws with respect to ice covered areas within the limits of their EEZ. In the sections concerning the delineation of baselines no special reference is made to ice, and the boundary is regarded as the coastal low water mark. Article 10 of LOSC provides that a straight line may be drawn around a highly indented coastline. It is possible that this may be applied in Antarctica, except that the following section further states that the two points between which the baseline is to be drawn must be less than 24 NM apart. Therefore, there is little indication as to the position of ice provided in the LOSC. Mangone specifically states that "Antarctica was deliberately excluded from any deliberations of the Third UN Law of the Sea Conference". This may be seen as an acknowledgement by the Conference of the specific problems associated with Antarctica, or alternatively the conference may have considered it easier to ignore the situation, than try and reach a workable conclusion, or consensus, on the issue.

II. ICE IN THE ANTARCTIC TREATY SYSTEM

The ATS itself provides nothing more definitive than LOSC. There are several references to ice within the various treaties in the ATS, however the actual status of the ice is vague and not specifically addressed. A section on "Uses of Antarctic Ice" is included in the Handbook of the Antarctic Treaty System, however because it is primarily concerned with the use of ice, it does not discuss the position of ice in International Law.

The Antarctic Treaty states that it applies to all areas south of latitude sixty degrees south, including all ice shelves. This appears to suggest that ice shelves are different to land, as it was necessary for those drafting the Treaty to specify ice shelves as being within the scope of the document, in order to have the Treaty apply to them. Joyner, however, concludes that "the signatories intended to include ice shelves as part of the continent’s land territory, rather than the high seas". Therefore the essential question for interpretation in this article is whether ice shelves are to be treated as land or sea. No other mention is made to ice.

The Agreed Measures for the Conservation of Antarctic Fauna and Flora includes an area of application identical to the Antarctic Treaty. Article 7(3), which concerns harmful interference, states that governments should take "all reasonable steps towards the alleviation of pollution of the waters adjacent to the coast and ice shelves", This may imply that ice shelves are distinct from land coasts and therefore may be part of the sea. Alternatively, it may be interpreted in a similar way to art. IV of the Antarctic Treaty, where ice shelves are similar to land.

The Convention for the Conservation of Antarctic Seals only refers to ice in Article 5(7). This requires Antarctic Treaty Contracting Parties to report any catches by their nationals in the areas of "floating sea ice north of 60o South Latitude" to the Scientific Committee on Antarctic Research. This may indicate that sea ice should be treated as part of the high seas.

The specific inclusion of ice shelves also occurs in the Convention on the Regulation of Antarctic Mineral Resource Activity (CRAMRA). Article 1(6) defines mineral resources as "all non-living natural non-renewable resources, including fossil fuels, metallic and non-metallic minerals". It is possible that ice may be included in this definition, if it is considered to be non-renewable. Ice is generally considered to be a mineral for geological purposes. However, it was agreed that ice should not be treated as a mineral for the purposes of CRAMRA. A further reference in article 5(2) states that "this Convention shall regulate Antarctic mineral resource activities which take place on the continent of Antarctica and all the Antarctic islands, including all ice shelves south of 60o south latitude". This could be interpreted, like the Antarctic Treaty, to apply to ice shelves as water (that is, as distinct from land), or to ice shelves as part of the land.

The Madrid Protocol contains several references to ice, as it also applies to all areas south of sixty degrees south. If the geological definition of ice as a mineral is used, there could be some justification for Article 7 of the Madrid Protocol to be interpreted as implying that exploitation of ice is prohibited. Annex II, "Conservation of Antarctic Fauna and Flora", contains some references to ice shelves. These suggest that they are a category distinct from water or land. Annex III, relating to waste disposal, includes a contrary implication. Article 4 of the Annex concerns "Other Waste Disposal on Land" and restricts, as far as practicable, the disposal of waste onto sea ice, ice shelves, or grounded ice sheets. The heading which refers to land, could therefore be seen as implying that these forms of ice constitute land within the scope of the Annex. This classification is not consistent throughout the Protocol. Annex IV, "Prevention of Marine Pollution", adopts a similar position to that in Article 4 of the Protocol itself. Article 5 of Annex IV prohibits the disposal of food wastes into the sea within 12 NM of the "nearest land or ice shelf". A similar prohibition exists in Article 6 for the discharge of sewage.

The status of ice within the Madrid Protocol varies, and is therefore unclear. In some parts there would appear to be three distinct categories of 'surface' - land, ice shelves, and water. In other parts sea ice, ice shelves and grounded ice sheets may be defined as land.

The various instruments of the ATS, like the existing international law, provide no clear concepts for determining the status of ice.

III. AUSTRALIA’S ACTIONS IN RELATION TO ANTARCTIC ICE

The position adopted by Australia regarding the status of ice is not clear. In the proclamations concerning the AAT, reference is made to all land and territory including islands south of sixty degrees south. On 13 January 1930, Sir Douglas Mawson proclaimed that:

This claim was extended by later proclamations to cover other areas of the Antarctic coast and off-lying islands. This territory was passed to Australia on 7 February 1933 by an Order in Council Placing Certain Territory in the Antarctic Seas Under the Authority of the Commonwealth of Australia. The order referred to "all the islands and territory". It would appear that this relates to land only, but may include the associated territorial sea. However, it is possible to interpret this phrase in a broad sense to include all territorial seas and any other EEZ over which there is some limited exercise of territorial rights, although Bush states that the claim "did not imply that Australia made a sectoral claim or that it claimed any title to the high seas". Therefore, it would appear that Australia did not claim ice or ice shelves as part of the AAT. If this is the case, Australia’s claim of sovereignty does not extend to the surrounding sea ice.

IV. CONCLUSION

The status of ice in international law and the ATS is unclear. The issue is one which should be addressed. In the past, however, as there has been no immediate or pressing need to do so, the uncertainty has remained. It is necessary to clarify the position in international law and that taken by the Australian government. If Australian policy regarding the status of ice could be defined, the determination of a baseline for an EEZ around the AAT would hold more weight.

One possible solution would be to adopt the approach which can be inferred in the Antarctic Treaty, CRAMRA, and in some parts of the Madrid Protocol. This approach would recognise three categories; land, ice shelves and water. An ice shelf could be interpreted as a stable ice formation within Orrego-Vicuņa’s classification, and as glacier ice, ‘fixed’ shelf ice, and ice islands within Joyner’s system. Therefore, it is possible for shelf ice to have a status similar to that of land, as it is relatively stable, is capable of being inhabited and may have originated from ice formed on the Antarctic continent. Alternatively, shelf ice could be a distinct ‘surface’ recognised in international law. The division between shelf ice and other ice would need to be defined. Ice which is attached to land in some way could constitute shelf ice. Such a definition may be seen as restrictive, as it would exclude sea ice and free floating icebergs, which would constitute the high seas. Such a classification system would provide an alternative to that proposed by Joyner on the physical characteristics of ice. It also avoids the quantification of stability required by Orrego-Vicuņa. Both classifications require subjective judgment.

There is acknowledgement that the current position of ice in international law is inadequate and unclear. Mangone states that ice "is a resource, with form, quality, and possibilities of utilisation quite different from water". This must be internationally recognised and International Law must adapt to include the ‘new’ surface of ice. A modification of the existing law may be the best approach. An alternative embodied in the ATS is to recognise land, ice shelves and water as separate, and accord ice shelves a status analogous to that of land in international law. In this way the status of ice in international law would become clear. Baselines for EEZs and other maritime delimitations could be determined around Antarctica. Therefore, should exploitation of ice for freshwater became feasible, the law would be able to address the related issues of sovereignty and ownership.

Copyright 1999 Australian Law Students' Assoication, Inc. Page last updated 30th April 1999.