Icebergs and international law – Matthew Paterson

Despite indigenous peoples such as the Inuit having harvested ice – including from icebergs – for drinking water for centuries, the prospect of commercial harvesting is suddenly gaining mainstream traction. As The Atlantic reports, “Luxury berg-water companies are cropping up across the Arctic. Plans for large-scale operations are growing as well.” While the scale has thus far been minor, there are large-scale plans such as those by the UAE to tow icebergs from Antarctic waters to be harvested.

At first blush, this recent hive of activity seems to operate in a lacuna of international law. After all, icebergs are not specifically mentioned in any international treaty and, as any harvesting has only been on a decidedly small scale, it is exceedingly unlikely that any state practice has yet emerged. Thus, The Atlantic suggested that international lawyers will have to wait for state practice and, ultimately, custom, to develop before there are clear international rules for how icebergs should be treated.

I beg to differ. While there is no International Convention on the Status of Icebergs, that does not mean they exist in a total international law vacuum. Rather, the International Convention on the Law of the Sea (UNCLOS) provides a framework through which the rules surrounding the harvesting of icebergs can be ascertained.

Articles 3 and 57 of UNCLOS provide, respectively, for coastal States to have territorial seas up to 12 nautical miles offshore, and exclusive economic zones (EEZs) up to 200 nautical miles offshore. In their territorial seas, coastal States have full sovereignty over the sea, the airspace above it and the seabed below it: Art 2. This is subject only to certain rights of innocent passage: Art 17. The upshot of this, for any potential iceberg harvesters, is that they would be fully subject to the laws of the State in whose territorial seas they operate. Thus, regulations such as Canada’s, which require prospective iceberg harvesters to apply for a licence which limits the volume of ice a given individual may harvest, would operate. It does not, however, appear that any States other than Canada have thus far implemented any regulations on iceberg harvesting.

The position in the EEZ is similar, although not identical: coastal States have full ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources… and with regard to other activities for the economic exploitation and exploration of the zone’: Art 56(1)(a). Clearly, these economic rights are rather less than full sovereignty. Thus, the coastal State in whose EEZ the icebergs are located has sovereign rights over them, insofar as they constitute “natural resources”.

Due to the practical difficulties of harvesting icebergs more than 200 nautical miles offshore, it is reasonable enough to assume that, outside the UAE’s plans, most iceberg harvesting will occur within a coastal State’s territorial seas or EEZs. In these areas, the difficulty lies not in the nature of the rights which may be exercised, but in which State’s territory the relevant waters lie.

In the Arctic, UNCLOS has effectively settled coastal States’ rights up to the 200 nautical mile limit in almost all cases. However, several Arctic States are claiming territorial rights over seas which extend beyond their EEZs as determined by UNCLOS. While most of these claims arise from the prospect of valuable resources under the seabed in the Arctic Circle, the question of iceberg harvesting may exacerbate tensions, especially if it proves profitable. We should all hope that the parties to the disputes decide to resolve them peaceably, resorting to an international forum of dispute resolution such as the International Court of Justice or the International Tribunal for the Law of the Sea if necessary.

The position is even less secure in the Antarctic because of the presently unascertained impacts of the Antarctic Treaty, which came into force in 1961. Prior to the Antarctic Treaty coming into force, Australia, New Zealand, Chile, Argentina, the United Kingdom, Norway, New Zealand and France all claimed certain slices of the continent as their territories, and a sizeable portion of the continent remained unclaimed. This position was frozen by Art IV of the Antarctic Treaty before any of these claims could be settled: contracting States agreed to effectively freeze their claims, preventing new claims from being asserted or existing ones confirmed.

One might think this would lead to the same effects as the presence of established territorial seas and EEZs in the Arctic. However, three factors have led to the position under the Antarctic Treaty being rather more uncertain.

First lies the fact that Antarctica is surrounded by ice shelves, which are attached to its coastline and project far into the sea. As Christopher Joyner argued in his 1991 paper, ‘Ice-Covered Regions in International Law’, the presence of these ice shelves – such as, famously, the Ross Ice Shelf, which is several hundred metres thick and comprises much of New Zealand’s claimed sovereign area – poses an interpretational issue. Art VI of the Antarctic Treaty provides that the Treaty applies to ‘all ice shelves’. However, this does not necessarily mean that ice shelves should be equated to land territory. After all, with climate change, their permanence is now in question, and it has long been possible to navigate below them. Joyner, at p 228, points to a middle road: where the ice shelf is frozen to the sea floor, it should be treated as land. Otherwise, it should be treated as being part of the sea.

Secondly, it is not the case that all existing claims to Antarctica are discrete and distinct. Rather, there is a substantial overlap between the claims of Chile, Argentina and the United Kingdom. That this has not led to a more serious dispute is one of the enduring successes of the Antarctic Treaty. However, this uncertainty which has been entrenched by Art IV also presents a problem for anyone trying to implement UNCLOS in the waters adjacent to those States’ claims.

Thirdly, a critical facet of the Antarctic Treaty system is the Protocol on Environmental Protection to the Antarctic Treaty. Article 7 of the Protocol prohibits any activity relating to mineral resources, other than scientific research, in Antarctica. The use of the phrase “mineral resources” rather than “natural resources” is significant: at a minimum, it appears that Art 7 does not prevent States from exploiting living resources in their Antarctic territories, such as fish or (sadly) penguins.

The question, then, is whether ice is a mineral resource. A fulsome legal analysis of that point is beyond the scope of this post (and in any event there is scant authority on this point). However, it is telling that the Oxford English Dictionary defines a mineral in its use in ‘science’ as ‘A solid, naturally occurring, usually inorganic substance with a definite chemical composition and characteristic physical structure and properties’. If this definition is accepted, then I would suggest that Antarctica’s ice would fall under Art 7, meaning that Antarctic iceberg exploitation is prohibited by the Protocol. However, this is subject to definitional debate, especially given the Oxford English Dictionary’s alternate definition of ‘A substance obtained by mining; a product of the depths of the earth’.

If this favoured definition of ‘mineral resources’ is adopted, Art X of the Antarctic Treaty would oblige each party State to ‘exert appropriate efforts… to the end that no one engages in any activity in Antarctica contrary to the principles or purposes’ of the Antarctic Treaty System. States which are party to the Antarctic Treaty and the Protocol would therefore be obliged to ensure icebergs are not harvested commercially within the areas subject to the Antarctic Treaty. Those areas are defined, under Art VI of the Antarctic Treaty, as being areas ‘south of 60° South Latitude, including all ice shelves’, but not to areas which would be considered high seas under international law. ‘High seas’ should be defined by reference to UNCLOS, so, in my view, each State claiming an Antarctic territory would have a 200 nautical mile EEZ within which Art X of the Antarctic Treaty and Art 7 of the Protocol in combination would oblige the coastal State to prevent others from harvesting icebergs.

In the end, then, it is far from the case that there is an international law vacuum regarding the harvesting of icebergs. Rather, the UNCLOS and Antarctic Treaty systems, when taken together, provide fairly robust rules of international law which will govern the commercial harvesting of icebergs within 200 nautical miles of coastal States’ shores. In the Arctic, this means coastal States have exclusive sovereign rights to make rules relating to the harvesting of icebergs within their EEZs. In the Antarctic, the provisions of the Antarctic Treaty and the Protocol, uncertainty aside, mean that States claiming Antarctic territories actually have positive obligations to prevent commercial iceberg harvesting in their EEZs. Thus, territorial claims aside, it is up to coastal States to make rules regarding iceberg harvesting subject to the terms of the Antarctic Treaty and the Protocol within 200 nautical miles of their or their territories’ coasts. While there are still some ambiguities, it is therefore plain that while they are not specifically covered, there is already relatively clear international law which applies to their harvesting.

Matthew Paterson (BEcon/LLB (Hons IIA) (UQ)) is the current Associate to His Honour Justice JA Logan RFD on the Federal Court of Australia. He would like to thank Keilin Anderson for her feedback on a draft of this note. The views expressed herein – and any errors – remain solely those of the author and do not reflect the views of the Federal Court of Australia.