Towards a New System of International Trusteeship? The Critical Legal Issues on the Regulation of Antarctic Protected Areas

Professor Xueping Li

The system of international trusteeship under the Charter of United Nations inherits in the mandate of the Covenant of League of Nations which can be traced back to the appointment of the Ionian Islands to British protection at Vienna Conference in 1815. Under such a system, some independent and sovereign states can conclude agreements of management on the mandatory territories under the supervision of the United Nations and they are responsible for protecting those territories, because there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization. For the sake of protecting Antarctica, the ATCM seems to have essentially borrowed the paradigm of international trusteeship and made it to be a new system with Antarctic characteristics. Annex V of the Antarctic Environmental Protocol and the Guidelines for Implementation of the Framework for Protected Areas provide state parties of the Antarctic Treaty for the designation and delimitation of Antarctic specially protected areas (ASPA), Antarctic specially managed areas (ASMA) and historic sites and monuments (HSMs), legitimately accompanied with their management plans for those protected areas. The contents of protection have been expanded from the sole ecological value to a comprehensive value system. However, this new system of international trusteeship must settle a series of legal problems for regulating the protected areas: What is the intrinsic nature of the ATCM decisions on the establishment of protected areas? Do these decisions have legally binding force between the ATCM and the state parties of the protected areas? Can state parties extend their rights beyond that of scientific research in managing the protected areas? What is the duration and destination of protecting these protected areas in the case of lacking a clear legal status for the common heritage of mankind in Antarctica? Can the management of these protected areas be developed over time into preemption under international law for the purpose of independence?

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