Sovereignty for the Conservation of the Southern Ocean and Antarctica

El Mostrador, Monday, November 1, 2021

Chile must reinforce its sovereignty by exercising its ancient and diverse polar rights. This exercise— which may horrify certain “purists of the law”—should be understood as a contribution to the transcendent objectives of the Treaty and its System. Only in this way can we effectively and in situ contribute to the protection and conservation of ecosystems that are our own and that require affirmative action on our part (starting with the ecosystems of the continental shelf extended to the north and south of the area covered by the Antarctic Treaty, which require a modern and effective Chilean conservation regime). We must dare to act.

For the eighth consecutive time, the 26 countries of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) have failed to agree on a system of protected areas within the circumpolar Southern Ocean region covered by the Antarctic Treaty System.

Due to the firm opposition of Russia and China (two authoritarian regimes), the CCAMLR countries have yet to fulfill the consensus agreement reached in 2012, which is to implement a “representative system of protected areas” necessary to, first, conserve the fragile polar ecosystems exposed to overexploitation and pollution from human activities, and second, to mitigate the degradation of the Southern Ocean and its contribution to the worsening of global environmental change.

Beyond the disappointment of diplomats, scientists, and NGO representatives, it is evident that the CCAMLR—one of the “pillars of the Antarctic Treaty System”—has long been a stage for the exercise of Cold War-type geopolitical diplomacy, characteristic of Russia and China. While for Russia, a firm prohibition affecting its “fishing rights” is unacceptable (Russia insists it is not, as Barack Obama stated, “just a regional power” with “intrinsic weaknesses”), China is in the midst of implementing its global project in “Confucius-Wolf Warrior mode.”

China’s global policy includes—supported logistically by Chile and Argentina—the structural strengthening of its Antarctic operational and extractive presence and capabilities (despite not being a founding polar power). This positioning considers the participation of Chinese high-seas fishing vessels, distributed (by the hundreds) throughout the South Pacific and South Atlantic. Our Strait of Magellan witnesses the annual transit of enormous Chinese fishing fleets. The multisystemic impact of Chinese fishing in the High Seas off the coast of South America, particularly on highly migratory species, remains to be determined.

Chile has been and is part of a majority unable to impose consensus to implement a protection regime to— in our case—ensure the conservation of an area of the Bellingshausen Sea (western sector of the O’Higgins Land). Since it is unlikely that either China or Russia will change their position regarding protected areas in Antarctica, Chile must seek alternatives to protect and conserve its living resources (including many species of internationally protected flora and fauna). This must occur to be consistent with what is stipulated in the Antarctic Statute (law), in effect since early 2021. It is imperative to take a “step beyond” what has been achieved by the CCAMLR. Failing to do so would mean not applying a fully effective law.

In its Article 1, the aforementioned law incorporates the geo-legal concept of the Antarctic Decree of 1940, stating that the Chilean Antarctic Territory “has no northern limit.” Viewed this way, the Chilean state is obliged to grant the two seas of the Chilean Antarctic a protection and conservation regime equivalent to that applied in the rest of the country.

Although “under the microscope” of Article IV of the Antarctic Treaty (a Chilean contribution), such a decision would not be (formally) recognized by the other Antarctic countries (though it would be appreciated by the global community), politically, a Chilean conservation regime is logical and consistent with our Antarctic tradition, whose roots date back to dates long before the Antarctic Treaty of 1959 (for example, the 1893 law that prohibited the hunting of marine mammals throughout the jurisdiction of the “Maritime Government of Magallanes”).

For this purpose, Chile has at its disposal— for example— the geo-legal and geo-scientific tools of the United Nations Convention on the Law of the Sea (UNCLOS) regarding the continental shelf up to and beyond 200 nautical miles. For years, this latter issue has “not been a topic” (nor a priority) for our foreign policy, which has been reduced, in terms of the CCAMLR and other Antarctic and oceanic instances, to a “goodwill voluntarism” and a “naive universalism,” detached from the geopolitical reality that today characterizes (and affects) the lives of countries in Antarctica and the global Ocean. Persisting in “goodwill” implies continuing to evade the assumption of essentially political and geopolitical scenarios, in which Chilean national interest must be protected and strengthened.

It is time to change. It is time to return to our realistic tradition that made possible the Antarctic Decree of 1940 and the declarations of 1947 and 1952 regarding the continental shelf and maritime zone (200 nautical miles). These affirmative political acts (which are now part of the essence of the Law of the Sea) had the virtue of recognizing that, while in terms of the extension of Chilean jurisdiction over the regulation for the sustainable use of marine resources “we agree that we do not agree,” the assertion of Chilean sovereign rights did not stop at the objections of other countries. If in 1947 and 1952 dozens of countries opposed the Chilean concept of maritime jurisdiction, today they have incorporated it almost as dogma in their own maritime policies. One only needs to be informed about the problem currently facing fishermen and the governments of France and the United Kingdom.

Protecting, strengthening, and projecting over time the Antarctic Treaty and its system of political and scientific cooperation requires realism and political will. The Pax Antarctica is fundamental to our national security.

For this, Chile must reinforce its sovereignty by exercising its ancient and diverse polar rights. This exercise— which may horrify certain “purists of the law”—should be understood as a contribution to the transcendent objectives of the Treaty and its System. Only in this way can we effectively and in situ contribute to the protection and conservation of ecosystems that are our own and that require affirmative action on our part (starting with the ecosystems of the continental shelf extended to the north and south of the area covered by the Antarctic Treaty, which require a modern and effective Chilean conservation regime). We must dare to act.