¹ The Antarctic Convergence constitutes the northern boundary of the Southern Ocean, generally lying between 50° and 60°s. It isa transitional zone between the cold surface waters resulting from the fresh water melt of Antarctic ice and the warmer, salty water of the Subantarctic regions. See generally H. King , The Antarctic (1972); The Fish Resources of the Ocean 162 (J. Guilland ed. 1971).

² The crude protein content is 65% ofthe dry weight, and contains many of the significant amino acids as well as vitamins A, B, and D.

³ Marr, 1962; Moiseev, 1972. The largest concentrations appear to be in the Scotia and Weddell Seas off South Maud Land.

⁴ Poland , West Germany, East Germany, Denmark, Norway , Chile , Korea , Spain, Bulgaria, Argentina , Brazil, Taiwan , Cuba. See Tetra Tech.Inc., Final Report, The Antarctic Krill Resource: Prospects for Commercial Exploitation(1979) ; rantham, G. G , The Utilization of Krill, UNDP/FAOGLO/SO/77/3(1977)Google Scholar.

⁵ U.S. Department of State, Final Environmental Impact Statement for a Possible Regime for Conservation of Antarctic Marine Living Resources(1978) (hereafter “State Dept. E IS ” ); I.Everson , The Living Resources of the Southern Ocean, UNDP/FAO GLO/SO/77/1 (1977); 1 Antarctic Ecology(Holdgate, ed.),1970.

⁶ Green, Role of Krill in the Antarctic Marine Ecosystem 18 (1977); State Dept. EIS at App. c.

⁷ Fin, Blue, Right and Humpback whales. These whales depend almost exclusively on krill. See 1 Group of Specialists on Living resources of the Southern Ocean, SCAR/SCOR, Biological Investigations of Marine Antarctic Systems and Stocks (BIOMASS) 24025 (1977).

⁸ See Tetra Tech, supra, note 4 at 41. The most likely candidates are the Antarctic cod, herring and tooth fish. Other commercial species migrate into the Southern Ocean, including Southern blue whiting and Patagonian hake.

⁹ The Russians caught over 800,000 tons of white-blooded fish (Nototheniids) from 1969 to 1972, primarily off South Georgia and Kerguelen, after which the catch dropped off precipitously.

¹⁰ The Parties' legal competence over high seas areas south of 60°S, however, would appear to be nonexistent. See discussion at 286 infra.

¹¹ All Antarctic Treaty decisions, by informal practice, must be taken by consensus. That practice has been extended even to preparation of the draft living resources convention, prior to its being published and submitted to the international diplomatic conference for consideration.

¹² These sessions are discussed more fully at 279-81 infra.

¹³ The U.S. delegation included several public members.

¹⁴ The United States was the leading proponent for an open negotiation and publication of texts, although it was willing to expend little political capital to achieve this goal.

¹⁵ Infra at 277-78.

¹⁶ These include Kerguelen, Crozet, Heard, Prince Edward, McDonald Macquarie, Balleny, Scott, Peter and Bouvet. There are disputes between two or more states about sovereignty over the South Shetlands, South Georgia, South Orkneys and Sandwich Islands, but other states do not dispute the right of some nation to perfect title.

¹⁷ United Kingdom, France, Australia, New Zealand, Chile, Argentina and Norway.

¹⁸ United States, USSR, Japan, Belgium, South Africa and Poland. The nonclaimants have never recognized the right of any state to make a claim, although that has not prevented the United States and Russia from implicitly threating to file their own claims from time to time.

¹⁹ This point is discussed infra at 279-81.

²⁰ This would include the great whales.

²¹ See Hardin, The Tragedy of the Commons, in Managing the Commons (Hardin and Baden, eds., 1977). Hardin argues that only a political agreement negotiated prior to overcapitalization can solve the problem of overexploitation of such common-pool resources.

²² See I.Everson, The Southern Ocean:The Living Resources of the Southern Ocean,FAO (1977),for the basis of this idea.

²³ Estimates of the total 1977 krill harvest range from about 120,000 to 200,000 tons, with over 80 percent being taken in the Atlantic sector. Some have argued that because baleen whales once consumed over 190 million tons of krill per year and now consume only approximately 50 million tons, there is a surplus of 140 million tons per year for man to catch. However, this would appear extremely unlikely, since the ecosystem over time would be moving toward new states of equilibrium, with other species gaining numbers as a result o f the additional krill. The most likely increases have been among seals, squid, birds and minke whales.

²⁴ See Mitchell & Kimball, Conflict Over the Cold Continent, 35 For . Pol.124, at 138-40 (1979).

²⁵ It provides that nothing in the new convention and no acts taking place as a result of the convention will (1) be a basis for asserting, supporting, or denying a claim to sovereignty in the Antarctic Treaty area (thus attempting to protect the status quo on claims embodied in Article IV of the Antarctic Treaty), (2) prejudice any right or claim to exercise coastal state jurisdiction under international law within the convention area, (3) prejudice any living resource convention party's position regarding recognition or nonrecognition of claims, or (4) affect Article IV(2) of the Antarctic Treaty which prohibits new claims or enlargement o f claims while the Treaty is in force.

²⁶ These apply only to the continent, although the subject of designating marine areas of special scientific interest that would becompletely protected was considered at the Ninth Consultative Meeting. Chile intends to propose two such sites to SCAR for investigation.

²⁷ Convention for the Protection of the Antarctic Seals, done June 1, 1972, T.I.A.S. No. 8826, ILM 251 (1972). The Convention regulates activities of signatories south of 60°S and entered into force on March 11, 1978.

²⁸ Hambro, , Some Notes on the Future of the Antarctic Treaty Collaboration, 68 AJIL 211, 221 (1974)Google Scholar; Pallone, , Resource Exploitation: The Threat to the Legal Regime o f Antarctica , 10 Conn . L.Rev. 404-408 (1978)Google Scholar. No internationally recognized jurisdiction to enact and enforce laws for any part of Antarctica exists, see Honnold, , Thaw in International Law ? Rights in Antarctica Under the Law of Common Space , 87 Y ale L.J. 804 (1978)Google Scholar, although the Treaty Parties agreement over the last twenty years on measures to protect the environment, to keep the continent demilitarized and to carry out open scientific research is surely consistent with the U.N. Charter.

²⁹ It is arguable that no claimant state has any coastal jurisdiction around Antarctica. Article 1 of the 1958 Convention on the Territorial Seas and the Contiguous Zone, 15 U.S.T. 1606, T.I.A.S. No. 5637, 516 UNTS 205,states: “The sovereignty of a state extends beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.” Thus, a state cannot exercise jurisdiction in a territorial sea without real sovereignty over the adjacent coast—which no state possesses at the present time. Articles 55 and 56 of the LOS Informal Composite Negotiating Text make it clear that an EEZ is adjacent to the territorial sea. Even among the 13 treaty parties there is a difference of opinion as to whether 200-mile zones apply, or if they do, whether an assertion of an EEZ is a violation of Article IV. Some claimants take the position that their territorial claims accord them the same offshore rights to a 200-mile economic zone as any coastal state, while nonclaimants generally argue that the waters and the seabed of the Antarctic are not susceptible to claims of national jurisdiction, the same argument they make about territorial sovereignty. Based on the North Sea Continental Shelf Case (1969), I.C.J. 4, a claimant could argue that its putative right over Antarctic territory vests a presumptive right to the adjacent continental shelf which could not be construed as a new or enlarged claim in violation of Article IV of the Antarctic Treaty. See Alexander, , A Recommended Approach to the Antarctic Resource Problem, 33 U. M iami L. R ev. 400 (1978)Google Scholar.

³⁰ Excess exploitation of krill could result in progressive reduction of the krill population; lead to depletion of dependent species; and modify krill swarming behavior, which could affect mass-feeders such as baleen whales, future krill harvests by man, and reproduction of the species. Baleen whales would most likely feed on the same swarms, at the same time of year, as the krill harvesters.

³¹ But see Legal Status of Greenland (1933), P.C.I.J., ser. A/B, No. 53 at 46.

³² See Pinto, , The International Community and Antarctica, 33 U. Miami L.Rev . 475 (1978)Google Scholar.

³³ In 1976, after UNDP had approved a budget of $202,500 for the FAO program on the Southern Ocean, with particular emphasison krill and its potential use in the third world, Argentina, Chile, Australia, and the United Kingdom admonished FAO not to ignore the consultative parties' rights and obligations in Antarctica. Argentina stated that FAO plans for research south of 60°S should be unanimously approved by the Treaty Parties. Ultimately, FAO-UNDP's long-term plan to spend $45 million on the Southern Ocean was dropped. See generally Butler, , Owning Antarctica: Cooperation and Jurisdiction at the South Pole, 31 J.Intl Aff. 35, 47-49 (1977)Google Scholar; Mitchell, supra note 24 at 133.

³⁴ Brazil, Uruguay, and Peru have indicatedthe possibility o f filing claims in the past, but are not associated with the Treaty atall.

³⁵ Belgium and Norway.

³⁶ Alexander, supra note 29, at 382-87.

³⁷ In Legal Status o f Eastern Greenland, the Permanent Court of International Justice decided that because of the severe physical characteristics of Eastern Greenland, intermittent and less than completely extensive acts of sovereignty were sufficient to establish occupational sovereignty, based on “the peaceful and continuous display of state authority over the island.” (1933) P.C.I.J., ser. A/B, No. 53 at 22. See also The Island o f Palmas, 22 AJIL 867, 911 (1928). In the Antarctic, no state can demonstrate a long period of undisputed authority over the claimed territory, and the Antarctic Treaty would not seem to provide the basis for collective sovereignty because it specifically defers the question of national claims.

³⁹ See discussion at 289-90.

³⁹ “Believing that the conservation of Antarctic marine living resources calls for international co-operation with due regard for the provisions of the Antarctic Treaty and with the active involvement o f all States engaged in research or harvesting activities in Antarctic waters … .” (Preamble, Washington Draft)

⁴⁰ G.A. Res. 2754, U.N. GAOR, Supp. (No. 30), U.N. Doc. A/7630 (1969) (adopted by a vote o f 62 to 28, with 28 abstentions) declared a moratorium on claims to national jurisdiction over the deep seabed. G.A. Res. 2749, 25 U.N. GAOR, Supp. (No. 28) 24, U.N. Doc. A/8028 (1970) (adopted by a vote of 108 to 0, with 14 abstentions) sought to declare the principles governing the seabed, the ocean floor, and the subsoil there of beyond the limits of national jurisdiction. G.A. Res. 2750, 25 U.N. GAOR, Supp. (No. 28) 25, U.N. Doc. A/8028 (1970) called for the convening of a Law o f the Sea Conference.

⁴¹ E. Luakd, The Control of the Sea-Bed 197 (1974).