The applicability of international conservation instruments to the establishment of marine protected areas in Antarctica

Many international conservation treaties, non-binding agreements and other instruments that have relevance to marine protected area (MPA) development provide for action to be taken globally, and thus include Antarctica within the scope of a worldwide system of marine protected areas. However, depending on their specific provisions, full application in Antarctic waters may be difficult, inappropriate or even impossible because of the area’s unique political situation and existing regimes. The provisions of many international conservation agreements are designed to be implemented through the national jurisdiction of adhering States within their territorial waters or exclusive economic zones, based on the principles of maritime jurisdiction embodied in the United Nations Convention on the Law of the Sea (UNCLOS). However, there are differing ‘positions of principle’ between claimant and non-claimant States with regard to the existence of territorial sovereignty and corresponding maritime zones in the area south of 60°S. In addition, the instruments of the Antarctic Treaty System already provide for resource management and environmental protection, thus raising questions about the necessity and feasibility of applying other agreements with overlapping provisions. It is concluded that although direct application of other international conservation agreements is in most cases unlikely to be feasible, efforts should be made to apply within the Antarctic Treaty System (ATS) certain principles and requirements agreed under instruments with global purview. These include the formulation of guidelines and criteria for MPA establishment, the consideration of marine protection as a separate, but linked, issue to protection of other environments, and the development of more specific guidelines on the timeframe in which these should take place. In addition, the consideration of Antarctic waters in parallel with global work to develop high seas protected areas should be undertaken to achieve the goal of a global, representative system of MPAs, of which Antarctic MPAs should be an important component.