In 2019, the world is celebrating 60 years of the Antarctic Treaty, which was signed by 12 countries on December 1, 1959. For six decades, the Antarctic Treaty and its related agreements, known as the Antarctic Treaty System (ATS), have successfully ensured peace and devoted the whole continent to science. The ATS proved to be resilient, but also has not seen any significant development since the 1990s, when the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol) was adopted to ban mining in Antarctica. The ATS is now facing a number of challenges, such as climate change.
China, a contracting party to the Antarctic Treaty, has become one so-called “challenger,” at least according to Western narratives. In this piece, I review the relations between China and the ATS in order to answer some of the most pressing questions being raised over Beijing’s intentions.
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Highly unlikely. There are seven claimants in the Antarctic – Australia, Argentina, Chile, France, Norway, New Zealand, and United Kingdom. In addition, Marie Byrd Land in West Antarctica is left unclaimed. One of the key articles in the Antarctic Treaty is Article IV, which provides that “no new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”
China ratified the Antarctic Treaty in 1983 and gained consultative status with voting rights in the Antarctic Treaty consultative parties meeting as of 1985. It is an obligation under international law that the Chinese government must support the Antarctic Treaty. China cannot simply make a claim, not without withdrawing from the Antarctic Treaty first. In “China’s Antarctic Activities,” the first Chinese government white paper on Antarctica, published in May 2017, it is reaffirmed that “the Chinese Government is in persistent support of the purposes and gist of the Antarctic Treaty, and has been committed to safeguarding the stability of the ATS.”
Moreover, according to Article XII, although the Antarctic Treaty may be modified or amended at any time, unanimous agreement of the contracting parties must be achieved to do so. It is a mission impossible for China to persuade all other consultative parties so as to amend the Article IV to facilitate any potential claim.
Will China start mining in Antarctica in the near future?
Also improbably. Led by late Australian Prime Minister Bob Hawke, the Madrid Protocol was enacted in 1991 and entered into force in 1998. Article 7 states that “any activity relating to mineral resources [in Antarctica], other than scientific research, shall be prohibited.” China ratified the Madrid Protocol in 1998, which means, from an international law perspective, that Beijing will adhere to this mining ban. As more proof, when China hosted the Antarctic Treaty Consultative Meeting for the first time in 2017, then-Vice Minister of Foreign Affairs Zhang Yesui reiterated China’s desire to support the mining ban.
Nevertheless, Article 25 does provide an opportunity to review the operation of the Madrid Protocol 50 years from the date of entry into force of this Protocol. Therefore China, as a consultative party of the Antarctic Treaty, is entitled to raise a review conference that might end the mining ban in 2048. But bear in mind that any modification or amendment will require agreement by more than three-fourths of all Antarctic Treaty Consultative Parties.
In the foreseeable future, it is not commercially viable to conduct mining in Antarctica. Unless there is a game changer, either a significant advancement of mining technology or a discovery of minerals that are essential for the world’s economy but cannot be mined somewhere else, it is difficult to predict that China will openly violate its commitment under the Madrid Protocol and start mining in a continent far away from home.
If China has no concrete plan to claim and/or mine, why are they actively expanding their presence in Antarctica?
This is a legitimate question that perhaps sits at the heart of concerns about China’s “real” interests in Antarctica. China began its first Antarctic expedition in 1983, then gradually expanded its presence in the continent and adjacent waters. So far, China has four Antarctic stations (Great Wall, Zhongshan, Taishan Summer Camp, and Kunlun/Dome A), with a fifth station being built on the Ross Sea Ice Shelf, to be completed in 2022. In addition, China’s second ice-breaker, M/V Xue Long 2 will start its first polar voyage in late 2019.
As the world’s second largest economy, China now naturally has interests in almost every part of the world, be it outer space, the deep seabed, the Arctic, or Antarctica. Chinese interests could combine science, resources (e.g., fisheries or bioprospecting), tourism, shipping, and national pride. Chinese activities in Antarctica in particular seem to be designed to make sure China will not be left out should there be any possible opportunity in Antarctica in the future.
For example, China is paying attention to Antarctic krill, the last untouched marine living resource on the planet. The Chinese catch in Antarctic waters is very low at the moment. However, China sees the potential of krill fisheries under the current management of the Commission for the Conservation of Marine Living Resources (CCAMLR) and is interested in increasing its krill fishing in the Southern Ocean. This could be the root of the stalemate of the process to establish marine protected areas in Antarctica.
What if China disregards international law in Antarctica as it did in the South China Sea?
When comparing Chinese practices in the South China Sea and Antarctica, one needs to understand that the South China Sea is one of China’s core interests, where the Chinese government has consistently made territorial claims. Antarctica is neither a core interest, nor the site of claimed Chinese territory. It is fair to say that there is no evidence China has broken any rule under the ATS yet.
Still, China’s refusal to participate in the South China Sea arbitration initiated by the Philippines no doubt generated a negative image of China’s attitude toward international law. Further, it raised the question of consistency in Chinese practice of international law. Nevertheless, that was a unique political decision largely driven by China’s unpreparedness, inexperience, and mistrust of dispute settlement mechanisms of the United Nations Convention on the Law of the Sea (UNCLOS).
Apart from stonewalling the South China Sea arbitration, Chinese responses to a large extent have been trying to interpret the existing international law of the sea in favor of Chinese positions. For example, the Chinese Society of International Law published a 500-page critical study of the South China Sea arbitration awards in May 2018. The critical study is completely meaningless from a legal point of view, but it did showcase China’s willingness and capacity to engage with the law of the sea.
In the end, is there anything other countries, such as Australia, can do to ease their mind regarding Chinese activities in Antarctica?
Yes, Article VII of the Antarctic Treaty authorizes each consultative party to undertake inspections of others’ stations in Antarctica. This is an option other countries, especially claimants, could pursue. For example, Australia could request inspections of Chinese stations in the Australian Antarctic Territory (including Zhongshan, Taishan, and Kunlun).
While it is not possible to ask China to recognize any specific Antarctic claim, there are two avenues to secure Australia’s core interests in the Antarctic with China. First, after publishing its official Arctic Policy White Paper in January 2018, China’s Antarctic policy is shaping up. In the Arctic white paper, China states that it will firmly adhere to existing international law applicable in the Arctic, which paved the way for fruitful Chinese cooperation with Arctic states, in particular Russia and Nordic countries. Claimants could push China to declare in its future Antarctic white paper that China has no territorial claims in Antarctica. This is not against China’s policy position either, as noted above. But stating this outright will greatly ease the minds of all Antarctic claimants and enhance their trust to collaborate with China, e.g., through the Belt and Road Initiative.
Second, Australia could pursue specific reassurances at the bilateral level. For example, during then-Vice Premier Li Keqiang’s State Visit to Australia in 2009, then-Australian Prime Minister Kevin Rudd managed to achieve an Australia-China Joint Statement, which states “The two sides should respect and take into full consideration the core interests and major concerns of each other.” When the timing is right, perhaps the next Australia-China Joint Statement could further elaborate what those “core interests and major concerns” are – for example, China’s claims in the South China Sea and Taiwan, and the stability of the ATS for Australia.
Nengye Liu is a senior lecturer at Adelaide Law School, University of Adelaide, Australia.
Dr. Liu received funding from Australian Government Department of Defence and Australian Research Council Discovery Project.