The Antarctic Treaty System - Erga Omnes or Inter Partes?

Abstract: The Antarctic Treaty was concluded by twelve states in Washington on 1 December 1959. Although the Antarctic Treaty has a limited number of parties, its impact has been considerable and lauded, but also questioned. A number of international agreements have developed subsequent to, and under the auspices of, the Antarctic Treaty; all of which have contributed to the establishment and strengthening of the so-called Antarctic Treaty System. The Antarctic Treaty is a good example of a treaty that is apprehended by the treaty parties as well as third states as having effects on the 'political', 'economic' or 'security' interests of non-parties, for the international community and for mankind as a whole. The purpose of the present study is to examine whether and to what extent the Antarctic Treaty and the so-called Antarctic Treaty System can create, together or independently, a legal regime that could be claimed to be valid erga omnes. The study includes a discussion of provisions, rules and norms of international law relevant to a third party context, such as the so-called pacta tertiis ( pacta tertiis nec nocent nec prosunt) rule. It is argued that the pacta tertiis rule undoubtedly is recognised as a basic rule of international law, but that there exist exceptions, or qualifications to that rule. It is likewise maintained that, although treaties may exist which, by their nature or otherwise, can create regimes that result in validity erga omnes, the Antarctic Treaty per se is not such a treaty. Yet certain provisions in the Antarctic Treaty are expressions of customary law or have acquired a customary law status, since they have been accepted and recognised by the international community. The study also contains a description and analysis of the most important elements in the Antarctic Treaty System. The emphasis is laid on the provisions of its cardinal treaty, the Antarctic Treaty and the decisions taken by the Treaty Parties that appear to be of particular relevance, or of interest, to third parties. Since the Antarctic Treaty System is not the sole source of law relating to Antarctica, it has been necessary to examine to what extent other areas of international law, such as the UN Charter and the law of common spaces, also are relevant in the third party context. The existence of these somewhat overlapping and sometimes colliding, legal systems, is the legal nucleus of this analysis.