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India’s polar policy regime will soon be in place with the Indian Antarctic Bill, 2022 – passed by the Lok Sabha on July 22 – expected to be introduced and cleared by the Rajya Sabha this week. Earlier this year, the Union government formally notified India’s Arctic policy.
While the Arctic policy has been enunciated as part of India’s official declaration with regards to wider engagements – such as the country’s science diplomacy, economic and human development, transportation, and connectivity – the Antarctic legislation is being put in place to “protect the Antarctic environment and dependent and associated ecosystems and to give effect to the Antarctic Treaty, the Convention on the Conservation of Antarctic Marine Living Resource” and related protocols that India has signed as part of the larger framework of the Antarctic Treaty System (ATS).
Why Antarctic Treaty System?
The Antarctic Treaty was signed six decades back, on December 1, 1959. Representatives of 12 countries – Argentina, Australia, Belgium, Chile, the French Republic, Japan, New Zealand, Norway, the Union of South Africa, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America – met in Washington and signed this treaty to ensure that Antarctica should be used “exclusively for peaceful purposes and shall not become the scene or object of international discord.”
The Cold War context made this treaty extremely significant. In fact, the First Article itself pronounced this commitment:
“There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military manoeuvres, as well as the testing of any type of weapons.” Article IV further stated that all “nuclear explosions in Antarctica and the disposal there of radioactive waste material shall be prohibited.”
Among the challenging issues of the Antarctic were territorial claims by seven of the 12 original signatories of the Treaty – Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom. The US and Russia maintain a ‘basis of claim.’ However, Article IV seeks to preserve the status quo, which says: “No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”
The treaty entered into force in 1961. Over the years, many other states, including India and China, acceded to the treaty and, currently, the total number of parties to the treaty is 54. The status of 29 countries under the treaty is significant as they are officiating as ‘consultative’ parties with a right to vote in the Antarctic consultative meetings. The remaining 25 countries are ‘non-consultative parties’, having no right to vote.
India and China officially joined the treaty in 1983 and received ‘consultative’ status in the following months. Pakistan also signed the treaty in 2012, but has not yet received ‘consultative’ status.
The ATS, in fact, consists of the main Treaty (1959) and other associated conventions and protocols which mainly include the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR, 1980) and the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol, 1991).
CCAMLR, which consists of 33 Articles, seeks to ensure the “conservation of Antarctic marine living resources” and the “maintenance of the ecological relationships between harvested, dependent and related populations of Antarctic marine living resources and the restoration of depleted populations to the levels” which ensure its stable recruitment.
The Convention also seeks the “prevention of changes or minimization of the risk of changes in the marine ecosystem.” India endorsed the CCAMLR in 1985 and became a member of the Commission for Conservation of Antarctic Marine Living Resources under that Convention.
The Madrid Protocol, with six Annexes, underlines the significance of “the comprehensive protection of the Antarctic environment and dependent and associated ecosystems and hereby designate Antarctica as a natural reserve, devoted to peace and science.” Article 2 of the Protocol designates Antarctica as a “natural reserve, devoted to peace and science.”
The Madrid Protocol sets forth basic principles applicable to human activities in Antarctica and prohibits all activities relating to Antarctic mineral resources, except for scientific research. As per provision 25.5, until 2048, “the Protocol can only be modified by unanimous agreement of all Consultative Parties to the Antarctic Treaty.” Besides, “the prohibition on mineral resource activities cannot be removed unless a binding legal regime on Antarctic mineral resource activities is in force.”
India joined the Madrid Protocol in 1998. These protocols and conventions underline the need to strengthen the ATS so as to ensure that Antarctica “shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.”
In furtherance of these conventions and protocols, India also became a member of the Council of Managers of National Antarctic Programme (COMNAP), the Scientific Committee of Antarctica Research (SCAR), and CCAMLR. All this testifies to India’s position among nations involved in Antarctic research. India has an active research station, ‘Maitri’ at Schirmacher Hills and a second one, ‘Bharati’, at Larsemann Hills (like Himadri station in the Arctic).
India organises regular Antarctic expeditions and many persons from India visit Antarctica every year as tourists.
The rationale behind a legislation with respect to the Antarctic is made clear in the Bill itself. While “growing concerns over preserving the pristine Antarctic environment and ocean around Antarctica from exploitation of marine living resources and human presence in Antarctica” are expressed in the proposed Act, it also significantly stresses that in “the future, the private ship and aviation industry will also start operations and promote tourism and fishing in Antarctica, which needs to be regulated.”
It further states that “the continuing and growing presence of Indian scientists in Antarctica warrants a domestic legislation on Antarctica consistent with its obligations as a member of the Antarctic Treaty.” The Bill also says that it “is also in sync with the emergence of India as a global leader on important international fronts.”
India’s Antarctica legislation is, in fact, an attempt to put in place measures necessary to give effect to the ATS and “to make provisions for the protection of the Antarctic environment and dependent and associated ecosystems and for the regulation of various activities envisaged in Antarctica and for matters connected therewith or incidental thereto.”
The proposed Act applies to a citizens of India, citizens of any other country, a company, body corporate, corporation, partnership firm, joint venture, an association of persons, or any other entity incorporated, established, or registered as such under any law in force in India, and any vessel or aircraft registered in India or outside India, if such person, vessel or aircraft is part of an Indian expedition to Antarctica under a permit issued under this Act and shall include any such vessel or aircraft which is registered in India but chartered by any other Party for entering into Antarctica.
The prohibitive clauses of the Act are wide ranging under Chapters III and IV. For example, Clause 4 prohibits any person in an Indian expedition to enter or remain in Antarctica without a permit or the written authorisation of another party to the Protocol, except in the case of a person who is travelling through, on or above the high seas, to an immediate destination outside Antarctica.
It also prohibits any person from entering or remaining in Indian stations in Antarctica without a permit or the written authorisation of another party to the Protocol.
Clause 6 prohibits any vessel or aircraft registered in India from entering or remaining in Antarctica without a permit or the written authorisation of another party to the Protocol. Clause 7 prohibits certain mineral resource activities in Antarctica except in accordance with a permit issued under the proposed legislation.
With respect to pollution, the Bill prohibits “any vessel from discharging into the sea any oil or oily mixture, effluent, bilge water or any food waste except in accordance with a permit or the written authorisation of another party to the Protocol.”
Also, Clause 22 of the Bill seeks to “prohibit discharging into the sea any garbage, plastic or other product or substance that is harmful to the marine environment by any person.”
Clause 17 complies with global nuclear non-proliferation stipulations by prohibiting “any person from carrying out a nuclear explosion or disposing of any radioactive waste material in Antarctica.” The Bill also seeks to “prohibit damaging, destroying or removing any part of historic sites or monuments in Antarctica.”
Jurisdiction of Indian courts
Significantly, the Bill has provisions for extending the jurisdiction of Indian courts to Antarctica, for crimes on the continent by Indian citizens, or foreign citizens who are part of Indian expeditions. These provisions are included to ensure punishment for crimes committed during an expedition, including crimes against the environment. The penalty for contravention may range from two years to 14 years or imprisonment for life (not less than 25 years) and with fines. Fines themselves range from Rs 10 lakh to Rs 50 crore under various categories of violations. Chapter IX provides details of all such offences and penalties.
Chapter X provides provisions for the purposes of ensuring a speedy trial of offences under this Act. The Bill says that “the Central Government, after consulting the Chief Justice of the concerned High Court or High Courts as it may consider necessary, shall specify by notification, one or more Court of Sessions, to be the Designated Court and may specify the territorial jurisdiction of such Court.”
There were criticisms from some opposition members that it would be a strange situation when foreign nationals could be punished for their activities in a foreign land under the Indian law. Union minister of state (earth sciences) Jitendra Singh defended the bill arguing that the “main objective of the treaty was that Antarctica is not used for military activity or there is no other misuse; to ensure the demilitarisation of the area. The other objective was to prevent nations from indulging in mining activity or any other illegal activity.”
However, many would recall the bitter experience of the Enrica Lexie case, which involved the killing of two Indian fishermen off the coast of Kerala by Italian marines in 2012. Eventually, after eight years, the Permanent Court of Arbitration’s decision, in May 2020, came as a setback to India with Italy’s claim of its jurisdiction over the trial of marines being accepted.
The Tribunal held that the Italian marines were “entitled to immunity in relation to the acts that they committed during the incident and that India is precluded from exercising its criminal jurisdiction over the Marines.” If this could happen in an area so close to Indian shores, nobody knows how the extension of jurisdiction to a faraway territory like Antarctica would work in the expected direction, especially if the targets claim official immunity. Yet, the stated objectives of the Bill are fair enough – to ensure contracting parties’ strict adherence to the provisions of the ATS.
As per the provisions of the Bill (Chapter IV), a Committee on Antarctic Governance and Environmental Protection will be set up with functions ranging from (i) granting permits for various activities, to (ii) implementing and ensuring compliance with relevant international laws for the protection of the Antarctic environment, (iii) obtaining and reviewing relevant information provided by parties to the Treaty, Convention, and Protocol, and (iv) negotiating fees/charges with other parties for activities in Antarctica.
The Bill also makes provision for an Antarctic Fund to take care of research activities.
Why the Antarctic matters today
The continent of Antarctica, the fifth-largest in terms of total area, covers a significant part of the Antarctic region. It is a cold terrain, located in a remote area in the Southern Hemisphere covered by the Antarctic Convergence – an “uneven line of latitude where cold, northward-flowing Antarctic waters meet the warmer waters of the world’s oceans.”
Antarctica is an exclusive landmass without a native population, though there are human settlements with scientists and their support staff working round the year. Called one of the world’s most significant ‘natural laboratories,’ Antarctica witnesses as many as 30,000 tourists each year to experience Earth’s most exquisite features. It is even more vital for science insofar as its great impact on the world’s climate and ocean systems is a matter of intense research investigation.
Though Antarctica is fragile and even more vulnerable, it is believed to hold rich deposits of oil and vital minerals. That is what attracts the world’s major powers.
Colonel James C. Bliss of the New Zealand Army says that China has already marked its presence as “a polar power with stated goals of greater leadership in international polar organisations and securing future resources to sustain economic growth, energy and food security.” Though “China has a short polar history and one at odds with that of established nations who, through exploration, quality of scientific research, and shared collective over national values and interests, have ascended to polar leadership,” Bliss points out, it, alternately, “has applied a similar approach to Antarctica as other domains and regions, utilising its recent economic growth to speed capability growth and investment in polar infrastructure.”
According to him, China’s “behaviour in the South China Sea gives cause for concern for Antarctic nations who fear that China’s rapid station building on the continent and increasing presence in the Convergence will continue the same path, challenging other nations to defy it.”
Australian National University College of Law scholar, Donald Rothwell, believes that China and Russia might “seek to maintain and even increase their Antarctic activities, especially if traditional Antarctic states begin to scale back their activities on the continent.”
The US is also citing China and Russia as a reason to step up its own Antarctic deployment. According to General Charles Q. Brown Jr., the commander of Pacific Air Forces, “Antarctic competition will soon resemble the United States’ rivalry with China and Russia in the North Pole.” He said, “The United States has to ask what ‘everybody’s motive’ is when “they come down to Antarctica.” He also said that “more equipment, such as polar icebreakers – which help boats navigate safely through the water and visually signal that a country is present in the polar region – is needed for the US to combat China’s and Russia’s expanding military footprint in both regions. Currently, Russia possesses more icebreakers than the United States, and China is building more as well.”
India can comfortably negotiate with the United States and Russia on a range of issues concerning both the Arctic and Antarctica. However, the China factor is something that worries New Delhi, given Beijing’s proclaimed commitment to the Polar Silk Road and Maritime Silk Road.
Evidently, there is more to science in the polar regions today than meets the eye. India is apparently well aware of these realities in the changing geopolitical climate. As a country with global ambitions, India’s polar engagement can be seen as representing its own aspirations too.
K.M. Seethi, an ICSSR Senior Fellow, is Academic Advisor to the International Centre for Polar Studies (ICPS) and Director, Inter University Centre for Social Science Research and Extension (IUCSSRE), Mahatma Gandhi University, Kerala.