Does the Antarctic Treaty System have a moral duty to respond to Russia’s invasion of Ukraine

By Dr Alan Hemmings

Dr Alan Hemmings
Adjunct Professor, Gateway Antarctica Centre for Antarctic Studies and Research
University of Canterbury (New Zealand)

Russia’s invasion of Ukraine, facilitated in part by Belarus, presents an offence against many norms of international relations. Most obviously, it is a breach of the Charter of the United Nations, under paragraph 4 of Article 2, that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. International reaction to this has been swift, resulting in the overwhelmingly supported General Assembly Resolution, and a broad range of actions and sanctions, short of direct military intervention. The International Court of Justice has directed that, inter alia, Russia immediately suspend its military actions.

Remarkably, the Antarctic Treaty System (ATS)[1], whose membership includes Ukraine, Russia, Belarus and other states which have been entrained in the international response, has so far been silent on the invasion and has instigated no responses whatsoever. Whilst nobody can suppose that actions within the ATS would be more than marginal in relation to the invasion and its attendant horrors, the fact of one decision-making party to the ATS invading another decision-making party should exercise a system that sees the Antarctic Treaty as an early and critical arms control instrument. Action by the ATS (minimal as that will necessarily be) is about contributing to the global signalling that Russia’s behaviour is unacceptable.

This short article considers why there is a duty for the ATS to respond, and identifies the ways in which this may be done.

Ukraine and the Russian Federation are decision-making states under both the Antarctic Treaty and Madrid Protocol (an Antarctic Treaty Consultative Party) and CCAMLR (Commission Member). Belarus is a Non-Consultative Party but is not a party to CCAMLR. In 2021, at the virtual Antarctic Treaty Consultative Meeting (ATCM) in Paris, Belarus sought Consultative Party status, a consideration of which was deferred to the 2022 ATCM in Berlin, “noting the necessity of an in-person meeting to discuss such an important matter”.[2] The “Request from Belarus to become a Consultative Party” is agenda item 6(a) of the Preliminary Agenda for the 44th ATCM in Berlin.[3]

Ukraine maintains a single Antarctic station ‘Vernadsky’ on the west side of the Antarctic Peninsula; Russia maintains five active stations, and Belarus a single small station ‘Vechernyaya’ located 20 km to the east of the Russian station ‘Molodeznaya’. Belarus appears dependent upon Russian logistic support to maintain the station.

An immediate consequence of the invasion of Ukraine is that support of Ukraine’s Antarctic station and its ongoing research in Antarctica is rendered very difficult. Firstly, whilst Ukraine’s Antarctic support ship Noosfera (formerly the UK’s RRS James Clark Ross) departed its home port of Odessa on 28 January, before the Russian invasion, and is presently in or close to the Antarctic, it is unclear whether it will be able to return to Odessa in the foreseeable future. Secondly, the replacement personnel for Vernadsky – who would be expected to overwinter – were not aboard the vessel at its departure. Whether those people will be able (or feel able) to leave their country and families in the midst of war – and if so, how they will be enabled to reach the Antarctic – is presently unclear. One imagines that other Antarctic programmes can assist the Ukrainian programme, but these are grim times for those presently at Vernadsky or aboard Noosfera, watching their country’s assault from afar.

Interference in the Antarctic programme of Ukraine goes to the heart of the centrality of science in the Antarctic Treaty and the purposes of two key para-Antarctic institutions – the Scientific Committee for Antarctic Research (SCAR) and the Council of Managers of National Antarctic Programs (COMNAP). Yet, the Secretariat of the Antarctic Treaty, CCAMLR Secretariat, SCAR and COMNAP have not felt able to publicly say anything about the consequences of the invasion of Ukraine. COMNAP’s scheduled AGM in Warsaw will not proceed, and one imagines that this is related to the situation in Ukraine and the influx of refugees. The SCAR website includes a link to its parent body, the International Science Council, which has made a statement expressing its “deep dismay and concerns”. Surprisingly, although it includes the observation “Our capacity to work collaboratively on global challenges, and on cutting edge research such as Arctic and space research, is only equal to our capacity to maintain strong collaboration amidst geopolitical turmoil” (emphasis added), the Antarctic is not mentioned.

Which takes us to what is surely the biggest Antarctic issue before us, namely whether it is defensible to hold the Antarctic Treaty Consultative Meeting scheduled to be held in Berlin from 23 May – 2 June. It is a reasonable assessment that Ukraine is not in a position to participate fully in such a meeting (and it may be entirely impossible) just two and half months from now. Whether or not fighting in Ukraine has ceased by that point is unknown, but certainly cannot be assumed. Whether Ukraine continues to exist as an autonomous (albeit wrecked) state or is annexed or otherwise made a vassal of the Russian Federation is also unknown. Is it anticipated by Antarctic Treaty Consultative Parties that whether or not Ukraine is a participant, they expect Russia and Belarus to turn up, and are happy for this to occur? Is that a defensible moral position for the ATS to adopt? If it is not, what are the options?

I have heard the suggestion that the ATS should steer clear of any position in relation to the invasion of Ukraine. That the great strength of the ATS has been its ability to insulate itself against the intrusion of extraneous considerations, exemplified (so the argument goes) by the instance of the Falklands/Malvinas war of 2 April – 14 June 1982. But this is a poor analogy. At the time of that war, ATCMs were held biennially. There was an ATCM in Buenos Aires in 1981, and the next in Canberra in 1983. But in the year of the Falklands/Malvina war (1982) there was no ATCM, although there was a Special Antarctic Treaty Consultative Meeting (on the negotiation of the Minerals Convention) 14-25 June 1982 in Wellington. No doubt this was uncomfortable for some, but the issue in the South Atlantic had been decided by this point. And disagreeable as all acts of violence are, what was at issue here was a dependency and not the metropolitan territory of either state; the warfare was not of the same scale as in Ukraine; it did not threaten the legitimacy let alone the extinction of the invaded state, civilian casualties, refugees, threat of the use of nuclear weapons, or pose the challenge to international order that the present (ongoing) invasion of Ukraine plainly does.

The most obvious option, if the ATCM is to proceed, is to prevent Russia and Belarus attending. This would seem to be consistent with practice in other areas of international engagement where Russia has been isolated and disinvited. Presumably, although no doubt they would prefer to avoid this, Germany could deny any Russian or Belarus officials access to the ATCM. Alternatively, Germany could deny entry to officials from Russia and Belarus, leaving representation to diplomats at their Berlin embassies. Under Rule 12 of the ATCM’s Rules of Procedure, a quorum is achieved by two thirds of the Consultative Parties – i.e. 19 states. If denial of participation cannot operate in this instance, whether through concerns about establishing new precedents within the ATS, or because other Consultative Parties will not agree (noting that the UN General Assembly Resolution saw Consultative Parties China, India and South Africa amongst the 35 abstaining states), cancellation or postponement of the ATCM may be the least-worst option. That would be consistent with, e.g. Arctic Council states declaring that they will not participate in the forthcoming meeting in Russia and are “temporarily pausing participation in all meetings of the council and its subsidiary bodies”.

These are of course a disagreeable scenarios, particularly after the COVID-induced cancellation of the 2020 ATCM in Helsinki and the 2021 virtual-only ATCM in Paris. But it is an inconvenience in the course of repudiating a crime. The alternative, of seeking to conduct a meeting with the participation of Russian and Belarus officials in Berlin, just 900 km from the Poland/Ukraine border, with or without the presence of Ukraine, seems unthinkable. It may also be observed that the opportunity-cost of not being able to have an ATCM may not be that high in terms of actual Antarctic outcomes. ATCMs have not agreed any legally binding Measure apart from the designation of protected areas or the adoption of their management plans for the last 12 years, and, under any circumstances, relationships will be so fraught at an ATCM in 2022 that the prospects of breakthrough on any significant Antarctic issue are slight.

Although the ATCM is the immediate Antarctic meeting, the second of the annual Antarctic diplomatic meetings is scheduled to be held in Hobart in October (although dates and whether this is to be in-person or virtual are not yet publicly confirmed). Subsidiary technical meetings (albeit held virtually because of the COVID pandemic) commence from early April.

If the foregoing necessarily requires collective action on the part of the Antarctic Treaty System, there are other actions available to individual sovereign states. Russia largely conducts its national programme logistics to and from Antarctica via air and shipping routing though South Africa (or South America in relation to its Antarctic Peninsula station Bellingshausen). South Africa is also important for Russian fishing vessels operating under CCAMLR. South African restriction on the use of its facilities might, therefore, be a powerful brake on Russian Antarctic activities (and given their dependency on Russian logistics, Belarus too), particularly given the expectation that other Antarctic Gateway states (Argentina, Chile, Australia and New Zealand) might be expected not to offer alternative facilities.

The Antarctic tourism industry still uses a number of Russian registered vessels, some of which appear still owned by Russian state agencies. Following the passing of its Russian Sanctions Act 2022, New Zealand has closed down the use of a Russian vessel by the sole New Zealand Antarctic tourism company.

Individually and collectively, ensuring that the Russian state is reminded that the Antarctic community too finds the invasion of Ukraine unacceptable needs to be driven home. This does not mean demonising individual Russians, who are as hostage to their government as anybody else.

Dr Alan D. Hemmings is an Adjunct Professor in the Gateway Antarctica Centre for Antarctic Studies and Research at the University of Canterbury in New Zealand. His research focusses on the geopolitics of the Antarctic and governance under the Antarctic Treaty System, including the roles of territoriality and nationalism. He wintered in Antarctica with the British Antarctic Survey, and has also been south with the New Zealand and French Antarctic programmes; served on government Antarctic advisory committees in New Zealand and Australia; and attended meetings of the Antarctic Treaty System for 20 years. His publications include Antarctic Security in the Twenty-First Century (co-edited with Donald Rothwell and Karen Scott), Handbook on the Politics of Antarctica (co-edited with Klaus Dodds and Peder Roberts), International Polar Law (co-edited with Donald Rothwell) and Philosophies of Polar Law (co-edited with Dawid Bunikowski).

[1] The ‘Antarctic Treaty System’ is defined in the 1991 Madrid Protocol as “the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force [i.e. the Convention for the Conservation of Antarctic Seals, Convention on the Conservation of Antarctic Marine Living Resources and the Madrid Protocol] and the measures in effect under those instruments”
[2] Paragraph 87, Final Report of the 43rd Antarctic Treaty Consultative Meeting, 2021.
[3] Appendix 1, page 151, Final Report of the 43rd Antarctic Treaty Consultative Meeting, 2021.
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