Port State Jurisdiction in Antarctica: A New Approach to Inspection, Control and Enforcement

Abstract

The jurisdictional approach followed by the 1959 Antarctic Treaty¹ was the outcome of a difficult compromise between countries favouring the principle of nationality and those supporting the principle of territoriality.² Contrary to what might have been expected, the former principle was supported not only by countries that pertained to the category of non-claimants but also by important claimants such as the United Kingdom and Norway. It was in fact Britain that introduced the proposal for a jurisdictional system based on nationality,³ while Norway maintained ‘that any person in the Antarctic should be subject solely to the penal jurisdiction of the country of which he is a national’.⁴ France, Chile and Argentina led the position relying on the territorial principle and its close association with the exercise of sovereignty claimed by these countries.⁵

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¹UNTS, Vol. 402, pp. 71ff.

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²On jurisdiction in the Antarctic Treaty System, see generally F. Orrego Vicuña, Antarctic Mineral Exploitation: The Emerging Legal Framework (Cambridge University Press, 1988), pp. 90–117.

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³United Kingdom, ‘Statement in Relation to Art. VIII of the Antarctic Treaty at the Plenary Committee of the Conference on Antarctica, 30 November 1959’, as reproduced in Chile, Memoria del Ministerio de Relaciones Exteriores (Santiago: Chilean Ministry of Foreign Affairs, 1959), pp. 698–704; as translated to English in W.M. Bush (ed.), Antarctica and International Law: A Collection of Inter-State and National Documents (London: Oceana Publications, 1982–88), Vol. I, pp. 40–41.

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⁴For statement in relation to Art. VIII made by Norway, see Bush (ed.), Antarctica and International Law (1982–88), Vol. I, p. 41.

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⁵ For statements by France, Argentina and Chile in relation to Art. VIII, see ibid