December 1, 2019 marked the 60th anniversary of the signing in Washington of the Antarctic Treaty, the main legal instrument for managing practical activities and regulating interstate relations in the territory 60°parallel South.
On May 2, 1958, the U.S. State Department sent invitations to the governments of Australia, Argentina, Belgium, Chile, France, Japan, Great Britain, New Zealand, Norway, the then South African Union and the USSR for the International Antarctic Conference. It was proposed to convene it in Washington in 1959. The group of participants at the Conference was limited to the countries that had carried out Antarctic projects as part of the International Geophysical Year (IGY) (July 1957-December 1958).
The Soviet Union supported the idea of convening a Conference. In a letter of reply, the Kremlin stressed that the outcome of the Conference should be the International Treaty on Antarctica with the following basic principles: peaceful use of Antarctica with a total ban on military activities in the region and freedom of scientific research and exchange of information between the Parties to the Treaty.
The Soviet government also proposed expanding the group of participants at the Conference to include all parties interested in the issue.
In those years, the international legal resolution of the Antarctic problem had become an urgent task. In the first half of the 20th century, territorial claims to Antarctica had been expressed by Australia, Argentina, Chile, France, Great Britain, New Zealand and Norway.
In response to the Soviet proposal, the United States kept all the territorial claims of various countries on the agenda, but it undertook to freeze them. Russia, however, believed that third parties’ territorial claims had to be denied. At the same time, the position of both States coincided almost entirely insofar as the right to make territorial claims for the ownership of the entire continent could be retained only as pioneers.
The USSR relied on the findings of the expedition by Russian Admiral F.G.Th. von Bellingshausen and his compatriot Captain M.P. Lazarev on the sloops-of-war Vostok and Mirnyj in 1819-1821, while the United States relied on the explorations of N.B. Palmer’s expedition on the sloop Hero in 1820.
The Conference opened on October 15, 1959 in Washington DC. It was attended by delegations from twelve countries that had carried out studies as part of IGY’s programmes in Antarctica.
The Conference ended on December 1, 1959 with the signing of the Antarctic Treaty. This is the main international law instrument governing the planet’s Southern polar region.
The basic principles of the Treaty are the following: peaceful use of the region, as well as broad support for international cooperation and freedom of scientific research. Antarctica has been declared a nuclear-free zone. Previously announced territorial claims in Antarctica have been maintained but frozen and no new territorial claims are to be accepted. The principle of freedom to exchange information and the possibility to inspect the activities of the Parties to the Antarctic Treaty have been proclaimed. The agreement is open to accession by any UN Member State and has no period of validity.
Over time, it has been proposed that the political and legal principles of the Treaty be further developed in the framework of regularly convened consultative meetings. Decisions at these meetings can only be taken by the Parties to the Treaty that have a permanent expedition station in Antarctica.
All decisions are taken exclusively by consensus, in the absence of reasoned objections. The first Antarctic Treaty Consultative Meeting was held in the Australian capital, Canberra, from 10 to 24 July 1961.
Until 1994 (when the 18th Consultative Meeting was held in Kyoto), meetings were held every one or two years, but since the 19th Meeting held in Seoul in 1995 they have begun to be convened on a yearly basis. The most recent Meeting, the 42nd one, was held in Prague from 11 to 19 July 2019. The 43rdConsultative Meeting will be hosted in Paris on 14-24 June, 2021: the suspension of the Meeting that was to be held in Helsinki from 24 May to 5 June 2020 was due to the Covid-19 pandemic. The 17th Meeting was held in Venice, Italy, on November 11-20, 1992.
The main decisions of the Meetings until 1995 were called recommendations and since 1996 ATCM measures. They come into force following the ratification procedure by the Consultative Parties. A total of 198 recommendations and 194 measures have been adopted.
Over sixty years, the number of Parties to the Antarctic Treaty has increased from twelve founders in 1959 to 54 in 2019. These include 29 countries in Europe, nine in Asia, eight in South America, four in North and Central America, three in Oceania and one in Africa.
The number of Consultative Parties to the Treaty that have national expeditions in Antarctica keeps on growing: Australia, Argentina, Belgium, Brazil, Bulgaria, the Czech Republic, Chile, the People’s Republic of China, (South) Korea, Ecuador, Finland, France, Germany, Japan, Great Britain, India, Italy, Norway, New Zealand, the Netherlands, Peru, Poland, Russia, Spain, South Africa, Sweden, Ukraine, Uruguay and the United States of America.
The remaining 25 Antarctic Treaty countries with Non-Consultative Party status are invited to attend relevant meetings, but are not included in the decision-making process.
In the 1970s and 1980s, the desire to join the Treaty was reinforced by the desire of many countries to develop Antarctica’s biological and mineral resources. Growing practical interest in Antarctica and its resources led to the need to adopt additional environmental documents.
During that period, recommendations for the protection of Antarctica’s nature were adopted almost every year at the Consultative Meetings. They served as starting material for the creation of three Conventions, which protect the natural environment: 1) the Convention for the Conservation of Antarctic Seals; 2) the Convention for the Conservation of Antarctic Marine Living Resources; and 3) the Convention for the Regulation of Antarctic Mineral Resources.
Later, based on the recommendations and Conventions adopted, the Protocol on Environmental Protection to the Antarctic Treaty was drafted. It became an environmental part of the Treaty and was signed on October 4, 1991 for a period of 50 years at the Madrid Consultative Meeting – hence it is also called the Madrid Protocol.
According to the Protocol, Antarctica is declared a “natural reserve for peace and science” and should be preserved for future generations. After 1991, the new countries that adhered to the Treaty started to show interest in participating in large-scale international research projects on global climate change and environmental protection.
Considering the above, Antarctica can be described as a global scientific laboratory: there are about 77 stations on the continent, which have supplied their scientists from 29 countries. They explore the continent itself, the patterns of climate change on Earth and the space itself.
However, how did it happen that the territories of the sixth continent became the target of scientists from all over the world?
In 1908, Great Britain announced that Graham Land (the Antarctic peninsula south of Ushuaia) and several islands around Antarctica were under the authority of the Governor of the Falkland/Malvinas Islands (claimed by Argentina). The reason for this was that they were/are close to the archipelago.
Furthermore, Great Britain and the United States preferred not to acknowledge that Antarctica had been discovered by the Russian explorers Bellingshausen and Lazarev. According to their version, the discoverer of the continent was James Cook, who saw the impenetrable sea ice of Antarctica, but at the same time confidently insisted that there was no continent south of the Earth.
A dozen years later, the appetites of the British Empire grew and in 1917 it decided to seize a large sector of Antarctica between 20° and 80°meridian West as far as the South Pole. Six years later, Great Britain added to its ‘possessions’ the territory between 150°meridian East and 160°meridian West, discovered in 1841 by the explorer Capt. J.C. Ross, and assigned it to the administration of its New Zealand’s colony.
The British Dominion of Australia received a “plot of land” between 44° and 160° meridian East in 1933. In turn, France claimed its rights to the area between 136° and 142° meridian East in 1924: that area was discovered in 1840 and named Adélie Land by Capt. J. Dumont d’Urville. Great Britain did not mind, and the Australian sector was not disputed by France.
In 1939, Norway decided to have a piece of the Antarctic pie, declaring that the territory between 20° meridian West and 44° meridian East, namely Queen Maud Land, was its own. In 1940 and 1942, Chile and Argentina entered the dispute and the lands they chose not only partially overlapped, but also invaded Britain’s “Antarctic territories”.
Chile submitted a request for an area between 53° and 90° meridian West; Argentina, for an area between 25° and 74°meridian West. The situation began to heat up.
Furthermore, in 1939, Germany announced the creation of the German Antarctic Sector, namely New Swabia, while Japan also formalised its claims to a substantial area of Antarctic ice.
Again in 1939, for the first time the USSR expressed – as a premise and postulate – that Antarctica belonged to all mankind. After the end of World War II, all legal acts of the Third Reich were abandoned and Japan renounced all its overseas territorial claims under the San Francisco Peace Treaty. According to unofficial Japanese statements, however, the country claims its own technical equipment: according to its own version, the deposits lie so deep that no one except Japan possesses the technology to recover and develop them.
By the middle of the 20th century, disputes over Antarctica became particularly acute: three out of seven countries claiming the lands were unable to divide up the areas by mutual agreement. The situation caused considerable discontent among other States, and hampered scientific research. Hence it came time to implement that idea, the results of which have been outlined above.
In 1998, the Protocol on Environmental Protection was added to the Antarctic Treaty. In 1988, the Convention on the Management of Antarctic Mineral Resources had also be opened for signature, but it did not enter into force due to the refusal of the democratic Australian and French governments to sign it. That Convention, however, enshrined great respect for the environment, which laid the foundations for the Protocol on Environmental Protection. Article 7 of that Protocol prohibits any activity relating to mineral resources in Antarctica other than scientific activity. The duration of the Protocol is set at 50 years, i.e. until 2048.
Most likely, its period of validity will be extended, but we have to be prepared for any development of events. Earth’s resources are inevitably running out and it is much cheaper to extract oil and coal in Antarctica than in space. So an oxymoronically near distant dystopian future awaits us.
International Criminal Court and thousands of ignored complaints
The civil war in Donbass has been going on for more than seven years now. It broke out in 2014, following Kiev’s decision to launch a military operation against the local militia in Donbass, who did not accept the Maidan coup that had happened in February of that same year. More than 10,000 civilians were killed in the conflict.
Correspondents of the French newspaper L’Humanité Vadim Kamenka and Jean-Baptiste Malet, French historian Vincent Boulet, as well as a MEP and a member of the Spanish Communist Party Willie Meyer took part in the international conference “Topical Issues of Human Rights Violations in Donbass.”
Moderating the conference, organized by the Society of Friends of L’Humanité in Russia (the French leftist newspaper’s Russian office), was the head of the interregional public organization “For Democracy and Human Rights” Maxim Vilkov.
The conference was also attended by the deputy foreign minister of the Lugansk People’s Republic Anna Soroka, human rights activist Yelena Shishkina, director of the Society of Friends of L’Humanité Olesya Orlenko, and head of Donetsk National University’s department of political science Artyom Bobrovsky.
The participants discussed numerous cases of human rights violations by the Ukrainian security forces and paramilitary units in the course of the civil war in Donbass. The left-minded European participants paid special attention to the fact that none of the 6,000 complaints about the actions of Ukrainian security officials and nationalists had actually been taken up by the European Court of Human Rights (ECHR).
Small wonder too, since the atrocities committed in Donbass immediately bring to mind the Spanish Civil War of the 1930s when leftwing antifascists from across the world fought supporters of fascists and Nazis. Let’s not forget that even DW (foreign agent) admits that the share of neo-fascists in Kiev’s Azov regiment is very significant.
The participants called upon the ECHR to pay attention to the non-investigation of crimes committed in Donbass.
Human rights activists and public figures from Russia, France and the unrecognized republics of Donbass called on European international human rights organizations to pay attention to the failure to investigate crimes committed during the armed conflict in Ukraine. This is stated in the statement, which was sent to European international organizations after the conference.
The statement also calls attention to obstacles created to prevent citizens from filing applications to investigate crimes, as well as to attempts to ignore pertinent complaints from international bodies.
The latter, according to the authors of the statement, is especially important since “10,650 applications have so far been submitted to the ECHR concerning violations of citizens’ rights during the civil armed conflict in Ukraine. Of these, 8,000 come from Crimea and Donbass, including 7,000 from Donbass alone. Moreover, 6,000 are complaints made against Ukraine proper. However, during the past seven years, not a single complaint pertaining to the conflict in Donbass has been considered.”
Human rights activists called on the ECHR and the International Criminal Court (ICC) “to ensure that the crimes committed in Donbass are investigated in full compliance with the ECHR and ICC charter, as well as to bring pressure to bear on the political leadership of Ukraine to fulfill its obligations to protect the rights of its citizens.”
Crime of Ecocide: Greening the International Criminal Law
In June 2021, an Independent Expert Panel under the aegis of Stop Ecocide Foundation presented a newly-drafted definition for the crime of ‘ecocide.’ The Panel consisting of 12 international lawyers proposed that the Rome Statute of the International Criminal Court (ICC) should be amended to include ecocide as the fifth international crime along with the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The inclusion of the crime of ecocide in the Statute will entitle ICC to investigate, prosecute, and try individuals accused of causing grave harm to the environment.
The term ecocide comprises the Greek word ‘oikos,’ meaning house or environment, and ‘cide,’ meaning an act of killing. Premised upon the term ‘genocide,’ ecocide means the significant destruction of the natural environment by human actions. In 1970, it was first used by Arthur Galston, an American biologist, at the Conference on War and National Responsibility in Washington DC. The term was further quoted by the Swedish Prime Minister Olof Palme in his opening speech at the 1972 United Nations Conference on the Human Environment (UNCHE) in Stockholm. Since then, multiple efforts were made to include ecocide within international law. Interestingly, it was adopted as an additional crime in the early drafts of the Rome Statute; however, later, it was dropped due to the lack of an adequate definition. If succeeded this time, it will be a significant victory for the environment since none of the existing international criminal laws secures it as an end-in-itself.
Definition of the crime of ecocide
The Panel has defined the crime of ecocide as, “For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
The definition comprises two thresholds that should be fulfilled to constitute a crime of ecocide. Firstly, there should exist a substantial likelihood that the ‘acts’ (including omissions) will cause severe and either widespread or long-term damage to the environment. In other words, along with the damages causing severe harm to the elements of the environment, such damages must have an impact on a wider geographical location or for an unreasonably longer duration.
It is appreciable that the Panel has widened the scope of the definition by incorporating spatial and temporal dimensions to its meaning. However, they have changed their position adopted in the previous legal instruments to employ a mix of conjunctive and disjunctive formulations in the definition. In addition to its severe nature, such harm could be either widespread or long-term to constitute a crime of ecocide. Thus, any severe and widespread activity, such as chopping down huge rainforests, could be attributed to ecocide. Similarly, any severe activity whose consequences prevail for a longer duration, for example, causing the extinction of a plant or animal species, could also amount to the crime of ecocide.
Instant reading of the first threshold indicates that the ecocide definition might include day-to-day human activities that contribute to greenhouse gas emissions and other environmental damages. It raises a question – Whether humans are environmental criminals? Though, it might be true that most human actions, directly or indirectly, are continuously degrading the ecosystem around us. However, the definition of ecocide is primarily concerned with the large polluters whose irresponsible activities at a massive level are a threat to the environment. Thus, to narrow down the ambit of the definition and identify criminal activities precisely, the Panel added a second threshold, that is, the ‘acts’ causing damage to the environment must be unlawful or wanton.
It means, only when the actions are either prohibited under national or international laws or indicate a reckless disregard for excessive destruction of the environment in achieving social and economic benefits will they amount to the crime of ecocide. The second threshold hints towards an anthropocentric approach of the definition and protects a range of human activities deemed necessary, desirable, and legitimate for human welfare. To determine the lawfulness of the acts, the actions should be seen with their potential social and economic values. The ecocide definition relies upon the principle of sustainable development to balance environmental destruction with human development and prohibits all destructive activities that outweigh their social and economic benefits. It also means that the definition places a ‘limited’ environmental harm outside the scope of the definition, which cannot be avoided for achieving social welfare that includes housing developments or establishing transport links.
The proposed definition is more concerned with the massive instances of environmental damages. It does not consider small ‘necessary’ ecological harms caused by day-to-day human activities. However, it is equally essential these negligible-looking destructive contributions of humans, made in their individual capacity, should not go unnoticed. These small contributions combined with each other also significantly impact the environment in the form of climate change, biodiversity loss, and other hazards. Thus, the reckless human lifestyle is a significant issue and needs to be regulated through some international code of conduct, if not as ecocide.
Undoubtedly, the proposed ecocide definition is a remarkable effort that should be appreciated for multiple reasons. First of all, the release of this definition indicates that the time has come to start penalizing environmental offenders and create deterrence so that such destructive activities can be minimized. It establishes the responsibility and accountability of big corporate houses and political leaders whose regular investments are causing substantial harm to the environment. Moreover, this definition founds its bases upon many core principles and concepts of public international law, international environmental law, international humanitarian law, and international criminal law. For instance, the principle of no transboundary harm, sustainable development, proportionality, and necessity are aptly referred to in the ecocide definition. Moreover, it also provides a sufficiently broad definition of the term ‘environment’ to primarily include any damage committed towards the earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.
Though the ecocide definition is a significant development, it still has to go a long way to be included in the list of international crimes. For this purpose, any of the 123 member states to the Rome Statute can officially submit the definition to the UN Secretary-General. The proposal has to be accepted for further consideration by the majority of the members through voting. Further, the text will be subjected to debates and deliberations and must be passed by a two-thirds majority of the members. Moreover, the member states need to ratify or accept the proposed text. Only after one year of such ratification or acceptance ICC may exercise its jurisdiction over the crimes of ecocide committed afterward. This entire process can take many years or even decades to get completed. It is also possible that the structure of the current definition might change in due course of its acceptance.
Today, it is unclear that whether this definition will succeed in amending the Rome Statute or not, but what can be said with certainty is that this definition will play a crucial role in building awareness and discourse around ecocide among the governments, corporate houses, professionals, and masses across the globe. With the pressing needs of humans and prevailing threats to the environment, it is the right time that the actions of the offenders should be regulated through the prism of international criminal law.
Syrian Refugee Crisis: A Critical Analysis Concerning International Law
The contemporary refugee law is primarily a product of the 20th century following the Second World War and the subsequent post-war refugee crises. The 1951 Refugee Convention on the Status of Refugees and its 1967 Additional Protocol are the noteworthy legal regimes. Although the definition of Convention 1951 continues to be the dominant definition, the regional treaties on human rights have continuously amended the definition in retort to changing circumstances and crises. The gap in the convention of 1951 is that it does not extensively define how the state parties must decide if a person shall compile with the definition of the refugee. The main objective of the modern refugee regime is that; at national and regional level, the individuals that flee their country due to threat of persecution must be protected under all circumstances.
The Civil War in Syria has lead many Syrians flee their own homeland where millions have fled and many have been internally displaced. Many of these existing refugee groups, if not most, live in desperation implying that refugees’ assistance and protection needs be addressed in host countries. States bear moral and ethical obligation towards ensuring the safety and protection of the individuals fleeing Syria. Western countries have also undermined and jeopardized their international commitment of protecting refugees’ human rights. The Regional Response Plan 2014 of United Nations High Commissioner for Refugees (UNHCR) is a $4.2 billion aid program for Syria. The plan mainly focuses on the financial assistance of the countries hosting Syrian refugees; where this assistance is certainly important; it does not seem to be an approach more equitable to share responsibility for refugees. The refugee convention and legal framework under International Law may be helpful in dealing with swift management of ongoing Syrian crisis. The study recommends for a larger responsibility to preserve refugees’ human rights and provide long term solutions through international law regimes with proper implementation mechanism.
Under the International refugee law, Article 1(A)(2) of the 1951 Convention states that
“The term ‘refugee’ applies to any person who is outside the country of his nationality, owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is consequently unable or unwilling to avail himself of the protection of that country.”
As it was in the context of European Refugees escaping persecution prior to January 1, 1951, the concept had geographical and chronological constraints. Article (1)2 of the 1967 Protocol on Refugee Status abolished those temporal and geographical constraints.
PRINCIPLE OF NON-REFOULMENT AND FREEDOM OF MOVEMENT UNDER THE 1951 CONVENTION
Non-Refoulement on the whole mean non-return: it is not doable for individuals or foreign nationals to be returned by the host State to the country or place where they could be tormented, tortured or treated inhumanly and degradingly, in addition; where their life, liberty and freedom is threatened. The non-refoulement principle is the fundamental pillar of international law on refugees. It is an inherent component of 1951 Convention as regarded as a Customary International Law applied on every State irrespective of their ratification of the convention.
Article 26 of the Convention of 1951 states that the host States shall allow refugees to choose and move freely where they have taken refuge. Article 28 states that they must be provided with legal documents that would permit them to move freely anywhere wound their country of residence. The Freedom of movement is very important particularly in countries that host huge influx of refugees and have confined them in a particular area or refugee camps and have posed restrictions on their basic rights. The 1951 Convention also protects much other refugee rights for example educational rights, right of employment, justice and property rights.
The rights however are protected under the 1951 Convention and other International Treaties on the rights of refugees and more broadly the Human Rights but the refuges in their host countries are denied of their these basic rights and are often regarded as a national security risks to the state.
Syria’s civil war has its origins in colonialism and the Iraqi War. The ethnic tensions and ongoing civil crisis date back to 2000 elections when Bashar Al Assad came in to power and the rising of Islamic State of Iraq and Syria (ISIS). Pro-democracy uprisings erupted in 2011 in response to persecution that were occurring in the Assad’s regime; the uprisings turned into a civil war. Syria by 2012 was entirely engulfed in that civil war and many had died by the end of 2015 by their own government. ISIS was part of the rebel forces, which created an atmosphere of terror. Civilians were subjected to transgressions; public executions and amputations became rampant. Religious minorities were also under great threat. In August 2013, a chemical warfare inflicted on its own people; as a result millions of Syrians were forced to flee their homeland and take hostage in the neighboring countries. Majority of them around 90% fled to Turkey, Jordan and Lebanon (neighboring countries) and around 10% made their way to Europe. While million fled the country, many thousands other are internally displaced and are still under great sufferings. According to a report of UN, approximately 70% of the Syrian population lacks basic necessities i.e., access to safe drinking water, extreme poverty and many children do not even go to school.
Despite their dire situation, Europe is hostile to Syrian refugees. They have put restrictions on their freedom of movement curtailing their rights granted by the international legal regimes and conventions. In Turkey, the refugees are often detained by the authorities and are forced to leave the country. The Turkish authorities had flagrantly violated international laws; refugees are regarded as a security risk. The ongoing conflict and instability in Syria have exacerbated the situation, forcing people to flee their homes and seek refuge in neighboring countries.
The existing literature includes number of records of International laws and the rights and obligations on refugees as well the host states but focus has been laid upon the crisis rather than the management of the crisis. In case of Syrian refugees, the existing literature highlights the historical context and ongoing situation of the crisis but has been unable to come to its solution with the help of International laws.
The 1951 Refugee Convention states that states should facilitate refugees’ naturalisation and assimilation to the greatest extent possible. States are obliged to provide legal documents to the refugees for the purpose of seeking asylum and obtaining the official status of refugees. The Refugee Convention seeks to require that the refugees must receive same public assistance as that of the nationals of the country and must be provided with financial assistance, property rights, and right of education and employment. Both the 1951 Refugee Convention and the 1967 Additional Protocol are international treaties that mean they are binding on the signatories however the treatment of refugees and asylum seekers are considered to be a part of customary international law that is that the states that have not signed or ratified the conventions must also protect these rights of refugees. In the Syrian refugee crisis, many states have avoided their responsibilities and violated international laws relating to refugees by barring refugees from entering their respective territories and by claiming that the state has no jurisdiction over them by choosing the non-entrée approach keeping them apart of refugee law technically. However, in practice they do not meet the duties of the treaty.
To conclude, the essence of the research is that Burden Sharing is an as an intrinsic component of the refugee protection legal system framework and is critical and important in resolving the Syrian refugee crisis. Burden sharing is basically the distribution of responsibilities. In simple words it refers that specific arrangements must be made for the purpose of physical distribution of refugees. It is one of the main principles of International Refugee Regime. The documented origin of burden-sharing can be found in the preamble of the 1951 Convention. When addressing the Syrian refugee crisis in terms of international laws relating to refugees, it is pertinent to know that the existing legal frameworks in the countries hosting huge influx of the refugee crises do not incorporate many of the basic obligations of international law in relation to the rights and obligations of refugees, because none of these countries i.e., Turkey, Lebanon, or Jordan have ratified the 1951 Refugee Convention and the 1967 Additional Protocol. Syrian refugees have many rights that have been granted to them by the international conventions however, they are denied of their rights. This has made them vulnerable and entirely dependent on the financial aids and has increased illegal means of employment. The refugees are marginalized minorities who are facing troubles in integrating in the receiving countries.
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