New Zealand Yearbook of International Law
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Yearbook of International Law |
|
Last Updated: 7 February 2019
BEYOND CLAIMS: TOWARDS A NON-TERRITORIAL ANTARCTIC SECURITY PRISM FOR AUSTRALIA AND NEW ZEALAND
Alan D.
Hemmings[†]
I. INTRODUCTION
This year, 2009, has seen
the 50th anniversary of the adoption of the Antarctic Treaty in Washington
D.C.[1] At the Thirty-Second Antarctic
Treaty Consultative Meeting,[2] and in
numerous statements and events in member states, much has been made of the
manifest success of the Treaty and the broader
Antarctic Treaty System (ATS)
subsequently developed from it.[3] It
is of course entirely reasonable to celebrate a dispensation that has endured
for half a century, and which continues to provide
the structure for a peaceful
and largely cooperative approach to not only activity there but a still novel
form of international
governance. Few other places have had as benign a 50 years
as Antarctica.
However, this does not mean that one has to suspend all
critical faculties. There are some reasonable bases for concern about the
future
viability of the ATS. Its institutional development seems to have come to a
halt, and its core assumptions are facing something
of a challenge from the
present dominant ideology of
globalism.[4] Activity in and around
Antarctica is diversifying and accelerating, the players are broadening, and the
region’s isolation
has ended.[5]
Objectively, Antarctica may present a more complex field for management now than
in the past, notwithstanding the disappearance of
some past problems such as the
Cold War. Critically, in my view, the past few years have seen the conjunction
of two historically
problematical Antarctic issues: territorial sovereignty and
resources. This has been evident in several contexts, including whaling,
fishing, and tourism, but perhaps most particularly in relation to the extended
continental shelf.[6] Whilst resources
were of course not explicitly considered in the Antarctic Treaty but left to
subsequent ATS instruments, territorial
sovereignty (however viewed by the key
states) was a prime factor in the diplomatic process that led to the Treaty, and
Article IV
which addressed it has been seen as just about the most important
single element, and something of a master-class in legal drafting.
But is
Article IV it, the final word on Antarctic territorial sovereignty claims?
Instead of a wise and innovative, but essentially
interim, mechanism to bridge
the transition into a new internationalised Antarctic future in the late 1950s,
has the mechanism in
fact entrenched and fortified essentially colonial
attitudes long abandoned elsewhere? Are we to accept as a fait accompli
the accommodation on territorial sovereignty reached 50 years ago? If so, is it
supposed that Article IV will suffice for the next
50 years too? Is this
sensible, even for the claimant states, let alone acceptable to the wider
international community, a community
of states and international institutions
that looks very different today than in 1959?
A state whose Antarctic
engagement is set in the context of it being a territorial claimant seems likely
to “see” the
Antarctic in a different way to a state that engages
with it as a global commons or the subject of a de facto international
condominium. With territoriality so central to the sense of identity and
entitlement of states, might the casting of
areas of Antarctica as part of the
state’s metropolitan territory, or some variant of dependency, risk the
characterisation
of challenges there in the same way (even if dampened by the
geopolitical realities) that they would be characterised “at home”,
i.e. as fundamentally national security challenges to the territory of that
state – hence the “prism” of this article’s
title? If
the Antarctic security discourse is indeed to get beyond the traditional and
narrow, territorial sovereignty claims warrant
attention, not only in terms of
their direct viability and desirability but in light of their implications for
other security foci
in the area.[7]
This paper poses some preliminary thoughts on these matters, on the
continuing viability and feasibility of territorial sovereignty
as a basis for
national engagement in Antarctica, and on sovereignty as a central pillar of the
multilateral system of governance
there. It focuses upon just two of the seven
Antarctic claimants, New Zealand and Australia, as the first stage in a broader
consideration.
II. THE TERRITORIAL ANTARCTIC SECURITY PRISM
Seven states claim
Antarctic territory,[8] three of these
claims substantially overlap and are mutually
contested,[9] and five claimants
recognise each others’
claims;[10] Russia and the United
States dispute all the claims but reserve a basis to claim themselves and not
one of the other 19 Antarctic
Treaty Consultative Parties (ATCPs) recognises any
territorial claim. Indeed, a number of ATCPs have recently and publicly
reiterated
their non-recognition of Antarctic territorial claims in relation to
submissions by claimants to the Commission on the Limits of
the Continental
Shelf (CLCS) under Article 76 of the 1982 United Nations Convention on the Law
of the Sea (UNCLOS).[11] If there
are other states which recognise any or all of the claims, they have so far not
publicly declared themselves.
Thus in a world with currently 192 UN member
states, one would have to say that claims to territorial sovereignty in
Antarctica have
only slight support, and that solely from within the small group
of fellow claimants. There are no intimations that this situation
is likely to
change in the foreseeable future. This surely poses a rather stark policy
reality check on a mode of Antarctic engagement
predicated on assumptions of
territorial sovereignty, howsoever finessed. Given this reality, there seems
some merit in beginning
to think through some alternatives in advance of
‘strategic surprise’[12]
In the negotiation of what became the Antarctic Treaty, it was plain that
some sort of accommodation between the seven claimants,
the two semi-claimants
(Russia and the US), and the remaining three foundation member states (Belgium,
Japan, South Africa) around
territorial sovereignty questions was necessary.
From this need arose Article IV. The twelve original signatories, with
claimants
forming the majority, adopted the Antarctic Treaty and brought it into
force just as decolonisation was beginning
elsewhere.[13]
The
“Territorial Antarctic Security Prism”, as conceived here, is a
complex of assumptions based upon the state’s
assertion, and apparent
belief in the reality, of its Antarctic territorial claim, the characterisation
of that claim as a legitimate
basis for particular (whether absolute or
instrumental) and preclusive rights accruing to that state, and the use of the
existing
international system (including the ATS) to safeguard or shelter the
claim. The bases for this prism occur at multiple levels: at
a formal
level in the established constitution, laws and high strategy and policies of
the claimant state; at an operational level in the practice of activities
and foci of attention in the area (e.g. science policy, infrastructure and
logistics networks)
and the rhetoric of politicians and officials; and in
public discourse in civil society, the media, and inter alia
academic discourse and artistic framing.
The historical roots of the
particular territorial claims need not here detain us. For New Zealand, the
claim to what it calls the
Ross Dependency dates from
1923;[14] for Australia the claim to
what it calls the Australian Antarctic Territory dates from
1933.[15] Neither state had their
first permanent stations in place until much later: 1954 for
Australia,[16] and 1957 for New
Zealand.[17] What does the
territorial claim of New Zealand and Australia mean today, in the context of the
Antarctic Treaty, its Article IV,
the subsequent development of the ATS, and the
conduct of activities within the Antarctic Treaty Area?
III. SOME ADVANTAGES
Whilst the thrust of this paper is clearly a
critique of the propriety and utility of territorial claims in the Antarctic of
the 21st Century, Lord Acton’s argument for making a strong
case for views he rejected is a useful
discipline.[18] What might be the
advantages here? First, that the fact of Antarctica being the subject to claims
raised the politics of international
engagement there to a higher level than
might otherwise have been the case. Without the claimants, who would have made
the decisions
in the late 1950s about future Antarctic arrangements? As it was
there were just 12 states formally involved; without the status
of territorial
claimant, it is at least debatable whether even this number of states would have
been in the frame. Substantively
then, it may be argued that claimants ensured
that the regime that evolved had some depth and nuance, and was more than a
crude Cold-War
creature. Perhaps more substantively, particularly for the states
concerned, the fact of being a claimant has almost certainly locked-in
a level
of Antarctic engagement that some of these states would not have countenanced
otherwise. Despite their relative geographical
proximity, would Argentina, Chile
and New Zealand (and perhaps Australia and Norway too) have engaged in the
Antarctic at the level
they have otherwise? Indeed, without this carrot, would
the austerity afflicted United Kingdom and France of the 1950s have been
so
engaged? The very sensitivities that made it difficult but necessary to
operationally set sovereignty to the side, resulted in
the type of regime
(embracing inter alia: free access, consensus decision-making, and the
encouragement and entrenchment of science and scientific cooperation as
“safe”
common ground) that could subsequently create the space to
reach accommodations on other complex issues, such as resources and the
environment. Further, the peculiarities of the Antarctic situation, and its
particular legal regime, has made this part of the world
intrinsically less
amenable to incorporation into a UN model or system, a situation that today
appears attractive to more than just
those claimant states. The fact that
Antarctica had no indigenous inhabitants, that it was acquired by its claimants
without the
dispossession of others in situ, has been and remains an
argument for disputing colonisation analogues. And as an entirely personal and
subjective observation, New
Zealand and Australia have been (aside the question
of sovereignty) amongst the most progressive and liberal participants in, and
developers of, the ATS.
IV. SOME DIFFICULTIES
The difficulties are that the past need not be an
appropriate guide to the future. Having achieved the ATS, the particular
privileges
of original signatories, and the now considerable consequential
benefits of multilateral engagement, what particular benefits are
seen to attach
to being a claimant? This is not a question about the continuing rationale for
Antarctic engagement; that case appears
strong. It is a question about the
necessary context in which that Antarctic engagement occurs. The difficulties
with a continued
reliance on territorial claims as the sheet anchor can be
summarised as:
A. Political Strategy
If most states do not recognise the claims to
Antarctica, there is little prospect that any of the claimant states will ever
in fact
acquire the prerogatives of territorial sovereignty over their part of
Antarctica. In absolute terms, the “Ross Dependency”
and the
“Australian Antarctic Territory” are fictions beyond the citizens
and residents of New Zealand and Australia
who plainly are within the reach of
their domestic legal systems. The citizens of other states are, whatever the
claimants’
beliefs about the generic application of their legislation
across the territories, essentially beyond reach. Imagine if you will,
the
likelihood of Australia or New Zealand actually arresting a US citizen in their
claimed areas on the grounds of a breach of their
domestic legislation.
In a
future where a constellation of great powers, or global circumstances congeal
around particular futures for these areas of Antarctica,
the relevant claimant
states seem unlikely to be in possession of the sort of power that one would
normally associate with sovereign
territory. To build one’s standing
around a fiction seems inherently risky. However, if these sorts of realities
are considered
at all by key decision-makers in New Zealand and Australia
– and they may not be – one imagines that any overt reflection
on
this, by way of public statement, may be seen by them as likely to weaken both
the public projection and the underlying political
strength of the territorial
claim.
This leaves us with the instrumental value argument that claims,
whilst not finally realisable, deliver benefits up to the point where
it is
revealed that they are unrealisable. But what exactly are these contingent
benefits? There has been one ATS instrument wherein
claimants seem to acquire
particular standing as claimants; the 1988 Convention on the Regulation of
Antarctic Mineral Resource Activities
(CRAMRA),[19] which is not in force
nor is expected to enter into
force.[20] In CRAMRA, the 10 member
Regulatory Committees established for each area identified for mineral resource
activities were to include
any members ‘which assert rights or claims in
the identified area’; and the two members ‘which assert a basis of
claim’ (viz: the Soviet Union/Russia and the United
States).[21] This is, one supposes,
the sort of benefit that claimants might point to. Frankly, it looks fairly
limited, quite aside from the
failure of this particular instrument. The only
ATS instrument developed subsequent to CRAMRA is the 1991 Protocol on
Environmental
Protection to the Antarctic Treaty, which appears to offer no
specific benefits to claimants.[22]
The ATS shows no present inclination to address any other issue through the
development of a new instrument. This does not rule out
the possibility that
some future ATS instrument might (like CRAMRA) offer particular benefits for
claimants, but there is no obvious
sign of any such development at this point. A
much more substantive benefit in any case attaches to the consensus
decision-making
used throughout the ATS, and this is not restricted to
claimants.
As suggested above, once one sees oneself as a territorial
sovereign, that self-assumed status predisposes the state in question to
view
the claim as the basis for particular and preclusive rights in the area.
Challenges to the claim and the assumed rights and
prerogatives of sovereignty
are invariably seen as significant, and become national security issues. In
Antarctica, this may well
be at a lower level than for that state’s
metropolitan territory, but it is just a matter of degree. Challenges therefore
potentially
invoke what are seen as appropriate responses across the soft-power
– diplomatic – economic – military spectrum.
In states such as
New Zealand or Australia, the mobilisation of arguments and responses is no
longer solely in the hands of the state,
although the state remains the most
significant actor. One has only to review recent media attention given to
Japanese whaling to
see that New Zealand and (particularly) Australia have been
hoist by their own petard in relation to appropriate responses to whaling
in
“our” waters. The very different responses to whaling by Humane
Society International (HSI) in the Australian Federal
Court,[23] and Sea Shepherd in
Antarctic waters have each sought to build on Australian claims to sovereignty
over the Australian Antarctic
Territory.[24] At the extreme, the
existence of a sense of territorial entitlement may give rise to an unhelpful
nationalism in relation to Antarctic
affairs.
In terms of the claimant state
itself, one may identify specific problems posed by its claimant stance. To
canvass merely the most
obvious here: Whilst one may argue positives in relation
to encouraging Antarctic engagement by that state, which it can be argued
generates benefits not only for that state but the broader international system
concerned with Antarctica, one is in a sense stuck
with riding the tiger.
Maintaining a claim entails expensive commitment and ongoing demonstration of
one’s claim, and the political
risks that may be attendant upon these
acts. So, whilst a number of ATCPs have been concerned about problematical
issues such as
Illegal, Unreported and Unregulated (IUU) fishing in Antarctic
waters, the states which have actually conducted the surveillance
and
interdiction operations have been the claimants and, with the addition of South
Africa, the coastal states for the subantarctic
islands in or near the
Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)
area.[25] The most active state
within the Antarctic Treaty Area has been New Zealand, which in 1999 deployed
HMNZS Te Kaha to the Ross Sea, and has regularly used its P-3K Orion
maritime patrol aircraft for IUU surveillance there. Recent media reports
suggest that the New Zealand Defence Force is developing an interest in unmanned
aircraft ‘which have the range to conduct
surveillance on the Southern
Ocean around Antarctica’ and
elsewhere.[26] The issue is not
whether these operations are useful, but whether, in the absence of a New
Zealand claim to the Ross Dependency,
such challenging and expensive operations
would be likely to take place. This also raises interesting questions around the
‘securitization’
of New Zealand’s engagement with Antarctica
and the discourse now largely associated with the Copenhagen
School.[27]
In the course of the
Humane Society International v Kyodo Senpaku Kaisha Ltd case noted above,
the Australian Commonwealth Attorney-General provided the Court with an
amicus curiae submission.[28]
Aside from the valuable indication of what Australia really sees the
international position of its territorial claim to be, Attachment
A to the
submission provides an ‘Extract from instructions to Australian Antarctic
Division Voyage Leaders’. Whilst Australia
has not sought to enforce
‘its laws in Antarctica against the nationals of other States which are
Parties to the Antarctic
Treaty’,[29] Attachment A
reveals that:
The voyage leader should advise any vessels involved in whaling
activities within Australia’s EEZ that they are whaling within the
Australian Whale Sanctuary and
in contravention of Australian legislation. They
should then be advised that their details have been passed on to the Australian
authorities and be asked to leave Australian waters. (emphasis in
original)
There is no evidence that these pro forma advisories
have had any effect on Japanese whaling.
What the claimant status also
appears to do is generate scepticism on the part of other states about the
claimant’s real motivation in relation to policy that may in fact
have great merit, and/or be essentially unrelated to claimant status. Of course,
where the issue does have some connection to the claimant’s
interests as claimant, this scepticism may be reasonable. Two cases of apparent
negativity
on the part of others attaching to positions which appeared, on the
face of it, reasonable, can be instanced as examples:
First, the
unsuccessful 1999 New Zealand proposal to establish an Antarctic Specially
Protected Area around the Balleny Islands archipelago
in the northern Ross
Sea.[30] One of the reasons for the
failure of this proposal was the view taken by some ATCPs (including some who
had other reasons for not
wishing to see the area designated – such as the
concern of some key fishing states that this would create an unfortunate
precedent
for other area closures) that the proposal was at core a stratagem to
bolster New Zealand’s sovereignty interests in the Ross
Dependency.
Second, the difficulties that surfaced in 2006 between India and a group of
Parties led by Australia around the Management
Plan for a Larsemann Hills
Specially Managed Area, seem in part to have arisen through some concern on
India’s part that it
was being pressured by Australia to substantially
revise its own advanced plans for a new research station nearby for essentially
territorial sovereignty reasons.[31]
Again, the issue is not whether the concerns were in fact well-founded, but that
they arose.
B. Moral and Ethical Defensibility
The international community of states reveals
great differences of size, capacity, resources, and other forms of wealth. That
a large
part of some 10 per cent of the earth’s surface is claimed by just
seven states, based upon historical contingencies predating
the independent
existence of most of the world’s states is an unavoidable ethical issue. A
variation on this issue, operationally
focussed on the legitimacy of a limited
number of ATS states appropriating resources in what others (led by the Group of
77) viewed
as an area more properly subject to the common heritage principle,
was behind the Question of Antarctica in the United Nations General
Assembly in
the 1980s and 1990s.[32] It remains
a concern for some in even the claimant states.
In the case of New Zealand
and Australia, there is an interesting contrast between these states’
generally progressive approach
to decolonisation and a multilateralism that is
sensitive to the needs of the Global South elsewhere, and their continuing
attachment
to Antarctic territories in large part acquired through the mechanism
of British Imperial
policy.[33]
C. Environmental Sustainability
There is a general risk that human activities in
the Antarctic Treaty Area are not conducted in an environmentally sustainable
manner.
Notwithstanding the significant obligations enshrined in ATS
instruments, there are gaps in coverage and the perennial issue of compliance
with existing obligations exists. The Antarctic is not immune to generically
problematical human and state behaviour, and appears
particularly vulnerable to
some pressures, such as climate
change.[34] The question here is
whether territorial claims and the behaviour associated with those claims pose
particular challenges to sustainability.
There appears to be at
least one ground for thinking it might. At the very basis of conceptions of
territorial sovereignty –
particularly in areas where there is no issue
around people – is the right to preclusive access to resources. This,
surely,
is the matter at the heart of claimants’ enduring interest in
Antarctic territory, and is reflected in the particular attention
the claimants
have given to coastal state rights pursuant to UNCLOS Article 76, their serious
attention to marine harvesting issues
around CCAMLR, and so on. A claimant may
forestall resource development in the Antarctic – this is precisely what
Australia
did in its opposition to
CRAMRA[35] – but generally one
might expect that claimants seek to be the prime beneficiaries of resource and
other commercial activities
in their purported territory.
If this is the
case, and demonstrating it is neither simple nor possible here, then maintaining
claims may stimulate activity. Whether the activity is then conducted in
an environmentally sustainable manner is a second question. For example, New
Zealand’s decision to commence fishing for toothfish in the Ross Sea in
1996, which had a political as well as a commercial
basis, ushered in marine
harvesting in the world’s most remote sea. Other states soon joined in,
and whilst generally conducted
in compliance with CCAMLR standards, there have
been robust critiques of the environmental sustainability of the resulting high
latitude
fishery in the Ross
Sea.[36] Put plainly, might
territorial claimants’ inherent interest in realising economic benefits
from “their” Antarctic
territory prevent decisions being taken
collectively by the ATS not to exploit Antarctica, or to exploit it at much
lower levels?
The argument here is not that there is anything inherently greedy
about the claimant states, but that a structural consequence of
their operating
as claimants is a greater likelihood of a decision in favour of
exploitation.
V. ALTERNATIVE PRISMS
To critique the “Territorial Antarctic
Security Prism” is implicitly to raise the subject of alternative prisms,
and what
these might be. To do so is a substantial project. Evaluating which
amongst these may be better or worse options in turn raises the
question:
‘better or worse for whom?’, the canvassing of which raises an
obligation to consider the pros and cons across
a range of interests and
scenarios. Given these requirements for a substantive treatment of alternative
prisms, no more than a preliminary
canvassing can be entertained here. The
preliminary options are neither comprehensive nor necessarily mutually
exclusive.
A. Deliberative Territorial Antarctic Security Prism
If New Zealand and Australia (or any other
claimants) expect to translate the present facsimile of territorial sovereignty
in Antarctica
into reality, some serious upgrading of their effort in this
regard would be required. Whilst the acquisition of a capability to
materially
improve their prospects of realising a real territorial sovereignty seems,
frankly, unlikely, it is obviously a theoretical
option. But to canvass, even
theoretically, the sort of economic, military, alliance and diplomatic
wherewithal necessary to be able
to, essentially, impose their sense of
sovereignty on other states, or persuade them to acquiesce, is to reinforce the
sense of futility
of such a project.
There seems little likelihood that any
but the most powerful states
could seriously
entertain attempting this, and none of the present claimants are
in that league.
B. Natural Interests
If relative proximity still says something about
areas of interest, New Zealand and Australia (and fellow southern hemisphere
ATCPs
such as Argentina, Chile and South Africa) have vital interests in the
area to their near south. Indeed, South Africa (which is not
an Antarctic
territorial claimant) would seem to have as enduring and legitimate an interest
in Antarctica as the claimant states.
The arguments adduced as
justifications for territorial sovereignty often appear to be as much about
natural interests arising through
proximity.[37] Natural interests in
Antarctica would ensure that New Zealand and Australia would continue to engage
with Antarctica. For both,
this region is inherently more critical than (say)
the Arctic, whatever global interests they have in the stability of that region
too. The question (as touched upon above) is whether without the stimulant of
territorial interest per se the level of commitment would remain. Given
the objective biophysical significance of the Antarctic, the seamless
connections to
the metropolitan territory (including their subantarctic
territories, which would be unaffected by a change in stance towards Antarctic
territory), the traditions of scientific engagement for over a half century and
the even longer cultural connections, there is no
reason why the level of
commitment to Antarctica should change.
C. Conventional International Relations
For claimant states, engagement with the
Antarctic is a curious hybrid of foreign relations and domestic administration.
Were New
Zealand and Australia to move away from their positions as claimants,
one might suppose that the Antarctic would become more clearly
a matter of
foreign affairs rather than a domestic issue – although of course the
traditional boundaries between foreign and
domestic policy have been
significantly eroded in all areas. In this case, it might be expected that the
relative attention given
Antarctica would ebb and flow as any other foreign
policy issue, but, like some other issues, it could well be that proximity and
historic associations ensured that it maintained a consistently high profile.
There is the possibility that shorn of the territorial
imperative, interest in
Antarctica would wane. However, this is the prism through which a number of
other, non-claimant, ATCPs view
the Antarctic, so it is not impossible that
former claimants could too.
D. Antarctic Exceptionalism
Whether on environmental or other grounds, it
would be theoretically possible, because of the very unusual situation of the
region,
to view Antarctica in a different manner from other areas, in what one
might call a new Antarctic exceptionalism. Under a scenario
where there are no
Antarctic territorial claims, the area would be in a novel post-Westphalian
situation. This is not to say that
states would cease to be the primary players
in relation to it – although that is a possibility – and indeed a
formalised
or de facto condominium over the area would constitute merely
a new variant on the Westphalian system.
There is no guarantee that this
sort of prism (or indeed any other) would offer a benign Antarctic future
compared to the present
dispensation. The Antarctic exceptionalism could result
in the first post-Westphalian and/or post-industrial continent; it could
result
in massive resource or other use under the successor collective governance
arrangement. The argument about values and desired
futures would still need to
be made.
E. Paradigm Shift
Finally there is what might be termed the
paradigm shift prism. This captures some ideas that might arise under several of
the other
putative prisms, and may be viewed as forms of Antarctic
exceptionalism. Theoretical possibilities here include casting Antarctica
as
World Heritage, whether under a UN or other regime, or other striking decisions
that would make Antarctica a quite different place
politically and economically
from the rest of the planet. Politically, this option offers Antarctica as a
place for innovation and
bold leadership.
There is plainly great uncertainty
about the sort of options that might be possible if Antarctica, and more
particularly the claimants,
can get beyond claims: really get beyond
claims as a matter of deliberate policy; not just trust to the hope that somehow
territorial claims will fade from view
through a persistence of the ATS. The
tentative alternative prisms sketched above purport to do no more than suggest
the opening
of a debate.
VI. CONCLUSION
For those not wedded to the idea of a national
manifest destiny in Antarctica, the expectation has perhaps been that with time,
with
the demonstrable success of multilateralism through the Antarctic Treaty
System, claims to territorial sovereignty in Antarctica
would fade. Like
compulsory church-going or the Treaty of Tordesillas, gradually it would fall
into disuse. But whilst for the first
twenty years after the adoption of the
Antarctic Treaty the issue of sovereignty appeared to reduce in profile, with
the arrival
of the technical capacity to realise various resources, and an
economic rationale for doing so, it gained new life.
The most significant
stimulus to the sovereignty issue has been the recent flurry of activity around
the extended continental shelf
off Antarctica, although whaling, fishing,
tourism and bioprospecting have all had an impact too. All the indications are
that of
itself aspirations of territorial sovereignty will not just fade away.
If this is the case, and if one sees difficulties around Antarctic futures
where territorial sovereignty is still an active principle;
if one sees in fact
no prospect of the supposed benefits, but only the negatives in a world now
significantly different from the
colonial context of the initial claims, then
one needs to think about whether and if so how one might move beyond territorial
sovereignty
in Antarctica.
A debate around the desirability and practicality
of Antarctic territorial claims will not be easy. The claims are so entrenched
that
they now barely gain consideration in the states that make them. They are a
given, upon which an entire edifice of domestic law,
administrative practice,
elite and public stance and framing are based. Even if it is possible to change
this situation, it will
take time. Some claimants may be more difficult to
persuade than others. This paper is a modest contribution to the beginning of
a
debate that we need to have.
[†] Alan D Hemmings, Adjunct
Associate Professor, Gateway Antarctica Centre for Antarctic Studies and
Research, University of Canterbury,
New Zealand and Research Associate,
Institute of Antarctic and Southern Ocean Studies, University of Tasmania,
Hobart, Australia.
This paper develops the presentation under the same title
delivered at the Colloquium Responding to Contemporary Challenges and Threats
to Antarctic Security: Legal and Policy Perspectives, held at the School of
Law, University of Canterbury, 5-7 July 2009. The author extends his
appreciation to the convenors of that
Colloquium and its sponsors. This paper,
whilst still a preliminary consideration of the issues, greatly benefited from
the comments
in Christchurch by project colleagues and the New Zealand officials
from several agencies who participated in the Colloquium. Particular
thanks are
extended to Karen Scott for helpful comments on the manuscript. The author is
solely responsible for the views expressed
here.
[1] Antarctic Treaty,
opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June
1961).
[2] Final Report of the
Thirty-Second Antarctic Treaty Consultative Meeting – Constituent
Parts
<http://www.ats.aq/devAS/ats_meetings_meeting.aspx?lang=e>
at 28
September 2009.
[3]
‘“Antarctic Treaty System” means the Antarctic Treaty, the
measures in effect under that Treaty, its associated
separate international
instruments in force and the measures in force under those instruments’:
Protocol on Environmental Protection to the Antarctic Treaty, opened for
signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998), art
1.
[4] A D Hemmings, ‘From
the New Geopolitics of Resources to Nanotechnology: Emerging Challenges of
Globalism in Antarctica’
(2009) 1 Yearbook of Polar Law
55.
[5] A D Hemmings,
‘Globalisation’s Cold Genius and the Ending of Antarctic
Isolation’, in L.K. Kriwoken, J Jabour and
A D Hemmings (eds), Looking
South: Australia’s Antarctic Agenda (2007),
176.
[6] In relation to the
extended continental shelf, see Alan D Hemmings and Tim Stephens,
‘Reconciling Regional and Global Dispensations:
The Implications of
Subantarctic Extended Continental Shelf Penetration of the Antarctic Treaty
Area’ [2008] NZYbkIntLaw 30; (2008) 6 New Zealand Yearbook of International Law
273.
[7] Donald R Rothwell and
Hitoshi Nasu, ‘Antarctica and International Security Discourse: A
Primer’ [2008] NZYbkIntLaw 17; (2008) 6 New Zealand Yearbook of International Law
3.
[8] Argentina, Australia, Chile,
France, New Zealand, Norway, United
Kingdom.
[9] Argentina, Chile,
United Kingdom.
[10] Australia,
France, New Zealand, Norway, United
Kingdom.
[11] United Nations
Convention on the Law of the Sea, opened for signature 10 December 1982,
1833 UNTS 3 (entered into force 16 November 1994). State responses to
submissions to the Continental Shelf Commission are available online at
<http://www.un.org/depts/los/clcs_new/
commission_submissions.htm> at
26 October 2009.
[12] See C F
Parker and E K Stern, ‘Bolt from the Blue or Avoidable Failure? Revisiting
September 11 and the Origins of Strategic
Surprise’ (2005) 1 Foreign
Policy Analysis 301 and A J Levite, Intelligence and Strategic
Surprise (1987). Although the term is conventionally attached to major
military attacks, there seems no reason why a correspondingly significant
shift
in the security environment could not arise through a sudden crisis in relation
to Antarctic territory, given the centrality
of this matter in the
ATS.
[13] In 1958 there were 82
UN Member States; by 1960 this had increased to 99. Significant differences in
approach are evident between
Antarctica and conventional colonial territories
elsewhere - where of course in the inhabited areas the issue was given
particular
force by the concept of self-determination and human rights, concepts
not readily applicable in the historically unpopulated
Antarctic.
[14] See M Templeton,
A Wise Adventure: New Zealand and Antarctica 1920-1960
(2000).
[15] See: D R Rothwell
and S V Scott, ‘Flexing Australian Sovereignty in Antarctica: Pushing
Antarctic Treaty Limits in the National
Interest?’ in L K Kriwoken, J
Jabour and A D Hemmings (eds), Looking South: Australia’s Antarctic
Agenda (2007), 7.
[16] K
Dodds and A D Hemmings, ‘Frontier Vigilantism? Australia and Contemporary
Representations of Australian Antarctic Territory’,
(2009) 55
Australian Journal of Politics and History
513.
[17] Templeton, above n
14.
[18] G E Fasnacht,
Acton’s Political Philosophy: An Analysis
(1952).
[19] Convention on the
Regulation of Antarctic Mineral Resource Activities, opened for signature 2
June 1988, 27 ILM 868 (not in
force).
[20] Statement by New
Zealand, the CRAMRA depository: New Zealand Ministry of Foreign Affairs and
Trade, http://www.mfat.govt.nz/Treaties-and-International-Law/01-Treaties-for-which-NZ-is-Depositary/0-Antarctic-Mineral-Resource.php>
at 29 September 2009.
[21] 1989
CRAMRA, art 29.
[22] 1991
Protocol on Environmental Protection to the Antarctic Treaty, opened for
signature 4 October 1991, 30 ILM 1455 (entered into force 14 January
1998).
[23] Humane Society
International v Kyodo Senpaku Kaisha Ltd [2008] FCA 3. For detailed
discussion of this case see the ‘Special Issue: Japanese Whaling in
Antarctica’, (2008) 11 Asia Pacific Journal of Environmental
Law.
[24] A D Hemmings,
‘Problems Posed by Attempts to Apply a Claimant’s Domestic
Legislation Beyond its Own Nationals in Antarctica’,
(2008) 11 Asia
Pacific Journal of Environmental Law, 207. J Jabour and M Uliff,
‘Theatre Sports in the Southern Ocean: Engagement Options for Australia in
Whale Research Protest Action’,
(2009) 63 Australian Journal of
International Affairs,
268.
[25] Convention on the
Conservation of Antarctic Marine Living Resources, opened for signature 20
May 1980, 1329 UNTS 47 (entered into force 7 April
1982).
[26] P Gower, ‘Spy
Drones on NZ Defence Wish List’, The New Zealand Herald, 30
September 2009
<http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1 & objectid=10600341>
at 30 September 2009.
[27] See,
eg, O Wæver, ‘Securitization and Desecuritization’ in R D
Lipschutz (ed), On Security (1995), 46. The “Copenhagen
School” is a security studies community initially centred on Barry Buzan,
Ole Wæver
and others associated with the Copenhagen Peace Research
Institute. ‘Securitization’, a term first used by the Copenhagen
School but now deployed more widely, means a speech act whereby the invoking of
security casts the issue in question in particular
prescriptive terms,
rationalising and sanctioning particular sorts of
responses.
[28] Outline of
Submissions of the Attorney-General of the Commonwealth as Amicus Curiae (25
January 2005).
[29] Ibid
[16].
[30] J Burgess, E
Waterhouse, A D Hemmings and P Wilson, ‘Declaration of Marine Protected
Areas – The Case of the Balleny
Islands Archipelago, Antarctica’, in
J P Beumer, A Grant and D C Smith (eds), Aquatic Protected Areas: What Works
Best and How do we Know? (2003),
196.
[31] See [54]-[64],
‘Report of the Committee for Environmental Protection’, in Final
Report of the Twenty-ninth Antarctic Treaty Consultative Meeting (Edinburgh,
12 – 23 June 2006)
<http://www.ats.aq/documents/atcm_fr_images/ATCM29_fr003_e.pdf>
at 24
November 2009.
[32] See, eg, L M
Elliot, International Environmental Politics: Protecting the Antarctic
(1994) 106-108.
[33] See, eg, S
Chaturvedi, The Polar Regions: A Political Geography (1996) and K Dodds,
Pink Ice: Britain and the South Atlantic Empire
(2002).
[34] O A Anisimov et al,
‘Polar Regions (Arctic and Antarctic)’, in M L Parry et al, (eds),
Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of
Working Group II to the Fourth Assessment Report of the
Intergovernmental Panel
on Climate Change (2007),
653.
[35] A variety of
considerations beyond the scope of this paper were relevant to that
decision.
[36] See D G Ainley,
‘A History of the Exploitation of the Ross Sea, Antarctica’, (2009)
Polar Record - doi: 10.1017/S003224740999009X and references
therein.
[37] See the discussion
of Australian Antarctic Interests in A D Hemmings, L K Kriwoken and J Jabour,
‘Looking Forward, Looking
South: An Enduring Australian Antarctic
Interest’ in L K Kriwoken, J Jabour and A D Hemmings (eds), Looking
South: Australia’s Antarctic Agenda (2007), 191.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZYbkIntLaw/2008/20.html