Chapter 5

Security Beyond Claims

Alan D. Hemmings∗

No nation ever voluntarily gave up the dominion of any province. How troublesome

soever it might be to govern it, and how small soever the revenue which it afforded

might be in proportion to the expence which it occasioned. Such sacrifices, though they

might frequently be agreeable to the interest, are always mortifying to the pride of every

nation … Adam Smith1

1. Introduction

Adam Smith was of course creating the foundational document of classical economics on the eve of the

American Revolution,2 and the “province” to the fore of his thinking was what became, within a relatively

short time, the United States. Clearly it is not necessarily the state presently claiming dominion over

territory which is the final arbiter of its future status. History is replete with the shuffling of territories, as

once dominant states are challenged by either internal revolt or external appropriation. Discussion around

the Antarctic as a political entity tends to assume that international relations there are resolved, stable and

benign for the foreseeable future, and that the struggles between states evident elsewhere will not impinge

on this space. Implicitly, the Antarctic-specific dispensations arrived at in the past will persist, if not quite

                                                                                                                         

∗  Without implicating them in any way in the analyses and positions adopted in this chapter, the author thanks officials responsible for Antarctic policy in a number of states for the opportunity to discuss these matters with them, including: Evan Bloom and Robert Hughes at the State Department, Washington DC; Trevor Hughes at the Ministry of Foreign Affairs and Trade, Wellington; Jane Rumble at the Foreign and Commonwealth Office, London. Appreciation is also extended to officials, fellow authors and other academic participants in the workshops held in Christchurch in July 2009 and Canberra in June 2010, whose comments and insights greatly assisted my thinking on these matters. Thanks also to Chris Hemmings, Karen Scott, Shirley Scott and Don Rothwell for helpful comments on drafts of this chapter. Any errors or oversights, and the particular interpretations here, are of course solely to be attributed to the author.

1 An Inquiry into the Nature and Causes of the Wealth of Nations, 3rd Edition, 1784, Volume 2, IV.vii.c, paragraph 66 (pages 616-617 in the Glasgow Edition: R.H. Campbell, A.S. Skinner, W.B. Todd (eds.), Oxford: Clarendon Press, 1976).

2 The First Edition of Wealth of Nations was published in 1776. Smith’s critique of mercantilism paid particular attention to the American colonies. See R.H. Campbell, A.S. Skinner, W.B. Todd, General Introduction, in Adam Smith An Inquiry into the Nature and Causes of the Wealth of Nations, 3rd Edition, 1784, Volume 1, Oxford: Clarendon Press, 1976 at 33.

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in perpetuity, then at least for a very long time. One of the matters around which this complacency has

been most evident is the question of territorial sovereignty (see Figure [territorial claims]), corralled through

the ingenuity of Article IV of the Antarctic Treaty:3

1. Nothing contained in the present Treaty shall be interpreted as:

a. a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

b. a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;

c. prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's rights of or claim or basis of claim to territorial sovereignty in Antarctica.

2. 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.

Antarctic territorial sovereignty is a curious beast. It stalks the Antarctic Treaty System (ATS),4

elaborated in large part to contain it,5 yet is never formally and openly discussed within its fora.6 The

legitimacy of territorial sovereignty is never held up to the light within the political systems of the claimant

states – neither whether it remains in principle an acceptable form of contemporary state practice, nor in

terms of the justice of the specific basis of claim of that state in the contemporary world. At home,

Antarctic sovereignty is just a given, grounded in unexamined late 19th - early 20th Century conceptions of

global organisation and national dignity (even where the claimant position was not formalised until later)

long overtaken in just about every other international context, and protected from critical analysis by the

absence of the resident peoples’ imperative usual in de-colonisation contexts.7 To the extent that the

purported territorial sovereignty is discussed at all in claimant X, the focus is on an immutable legal basis

                                                                                                                         3 Antarctic Treaty, 402 UNTS 71.

4 Defined in Article 1 of the Protocol on Environmental Protection to the Antarctic Treaty (4 October 1991, ILM, 30, 1991, 1455): “’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 effect under those instruments.”

5 For a general account, see: F.M. Auburn, Antarctic Law and Politics, London, C. Hurst & Company, 1982 at 84-146.

6 A recent issue obviously coupled to territorial sovereignty, coastal state rights under the United Nations Convention on the Law of the Sea (10 December 1982, ILM 21, 1982, 1261) in relation to the extended continental shelf appurtenant to Antarctica, was never discussed in the fora of the ATS. See, inter alia: A.D. Hemmings and T. Stephens, ‘The extended continental shelves of sub-Antarctic islands: Implications for Antarctic governance’, Polar Record, 46, 2010, 312-327; and Mel Weber (Chapter 10).

7 See for example Australia’s subsequent rejection of the anti-colonial critique of territorial claims during the 1980s in: Question of Antarctica: Study requested under General Assembly resolution 38/77, Report of the Secretary-General, Part Two – Views of States, Volume I, Thirty-ninth session of the UN General Assembly, Document A/39/583 (Part II), 29 October 1984 at 87.

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of claim,8 which is always glossed so that whatever uncertainties may attach to others’ claims, “ours” is

indisputable (even if we would prefer not to put it to the test).9 For now over 100 years we have

witnessed a Swiftian “Battle of the Books” around various states’ claims (sometimes at several removals)

to first Antarctic discoveries - arguably of significance for legal stances regarding territorial claims –

without conclusive resolution.10

Further, ethical and pragmatic considerations are entirely overlooked, so that simple questions

such as: “what is the moral basis for country X claiming part of Antarctica?” or “are assertions of

territorial sovereignty by country X realisable?” are simply not asked. And, with these not asked, it is no

surprise that a question such as: “are there better ways of viewing (and thus engaging with) Antarctica

than through the prism of territory?” is not asked either.

This chapter asks these, and other, questions.11 It does so because of a concern that the

unresolved situation around claims to territory is becoming more problematical, notwithstanding the

present modus vivendi predicated upon Article IV, and that in the medium-term this apparent status quo

will prove unsustainable. One has only to consider the reinvigoration of strategic contest in the post

Cold-War Arctic (a region with conventional territorial sovereignty arrangements) in recent years to see

how quickly and profoundly the geopolitics of a region can change as a result of resource aspirations and

changing international power relationships.12

                                                                                                                         8 Details of the areas claimed by the seven states, and the legal basis for the claims, are usefully summarised in V. Prescott and G.D. Triggs, International Frontiers and Boundaries: Law, Politics and Geography, Leiden, Martinus Nijhoff, 2008 at 383-408.

9 For Australia, see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (The Japanese Whaling Case) ‘Outline of Submissions of the Attorney-General of the Commonwealth as Amicus Curiae’ available online at http://www.envlaw.com.au/whale7.pdf e.g. at para 29 “The Attorney-General also notes that a substantive hearing of this case, the issue of an injunction and the issue of a declaration would be expected to harm Australia's relations with Japan as well as other Antarctic Treaty Parties. Moreover, as explained above, the international disagreements and challenges that enforcement could prompt could undermine the Antarctic Treaty and, ultimately, Australia’s position with respect to the AAT.” Note also the refusal of Argentina and Chile to accept the jurisdiction of the International Court of Justice in relation to the Applications brought by the United Kingdom: Antarctica Cases (United Kingdom v. Argentina; United Kingdom v. Chile) [1956] ICJ Pleadings, 64; and Sir Humphrey Waldock’s assertion that “it was largely for the purpose of avoiding any risk of the extinguishment of its claims by prescription that in 1955 the United Kingdom filed a unilateral application with the International Court challenging alleged encroachments by Argentina and Chile on the Falkland Islands Dependencies” (emphasis added). J.L. Brierly, The Law of Nations, 6th Edition, revised by C.H.M. Waldock, Oxford, Clarendon Press, 1963 at 171.

10 To note just three, punctuating the century: Edwin Swift Balch, Antarctica, Philadelphia: Allen, Lane & Scott, 1902 (the priority of Palmer and Wilkes, hence the USA, in large parts of the Peninsula and East Antarctica); Oscar Pinochet de la Barra, La Antártida Chileno o Territorio Chileno Antártic, Santiago de Chile: Imprenta Universitaria, 1944 (asserting a claim to Spanish title prior to 1810 supporting the Chilean (and Argentine) employment of the doctrine of uti possidetis in their basis of claim); R.J. Campbell (ed.) The Discovery of the South Shetland islands, The Voyages of the Brig Williams 1819-20, as Recorded in Contemporary Documents and the Journal of Midshipman C.W. Poynter, London: Hakluyt Society, 2000 (reinforcing assertions that the British were the first to sight the Antarctic Peninsula and surveyed the South Shetlands).

11 A preliminary examination was provided in A.D. Hemmings, ‘Beyond claims: Towards a non-territorial Antarctic security prism for Australia and New Zealand’, New Zealand Yearbook of International Law, 6, 2009, 77-91.

12 The hoopla around the Russian seabed flag planting may be variously cast as legally irrelevant, indicative of strategic intent, or pure theatre, in the context of resolving continental shelf rights, but other facets of the Arctic debate include a degree of contention even amongst Arctic states around whether only coastal states determine the

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Consideration of the Antarctic situation is approached with an awareness of the difficulties these

sorts of questions pose in an international policy field that has deliberately sought to avoid discussion of

high politics if at all possible,13 and certainly no more frequently than every few decades,14 and has instead

focussed its efforts on more limited technical issues.15 Not the least interesting facet is that non-claimants,

including some whose rejection of territorial claims is explicit and longstanding, appear to have entirely

abandoned any efforts to move beyond the pragmatic freezing of positions achieved in 1959.16 The

corollary of these policy choices is that the Antarctic bureaucracies in the various Antarctic states, and

consequently the fora of the ATS itself, are now largely populated by people for whom these sorts of

considerations are likely to appear exotic. Barring “strategic surprise”,17 even if the Antarctic community

decides to reassess its positions on what one might call ‘territoriality’ in Antarctica, it will take time to do

so. With the exception of the very fast negotiation and adoption of the Madrid Protocol,18 speed is not an

evident characteristic of the ATS. Transformation in Antarctic political norms (if possible at all) around

so central a pillar may require decades. But, with the celebrations of the first half-century of the ATS now

behind us, on this matter, as others,19 it may be time to begin some serious thinking about Antarctic

futures. With territoriality so central to states’ sense of their own rights and obligations in the world, there

are short lines between conceptions of national entitlement and both the traditional national security

concerns and non-conventional security issues that are the subject of this volume.20 Is there perhaps

greater security for both claimants and non-claimants, and for the Antarctic regime itself, if we can get

beyond claims to territory in Antarctica?

                                                                                                                                                                                                                                                                                                                                                                                         Arctic dispensation, and the manifest interest of non-Arctic states, including major emergent powers China and India. The resolution of these matters in the Arctic, and the resulting Arctic futures are surely not without consequence for the Antarctic, even with some time-lag.

13 “In more conventional terms, high politics would refer to nontangible variables that form an important part of a nation’s identity – its national philosophy, its self-image, and its national security, and sovereignty”: N. Ørvik, ‘Nordic cooperation and high politics’, International Organisation, 28, 1976, 61-88 at 74

14 Perhaps on only two occasions - around negotiation of the Antarctic Treaty, and during the hiatus between de facto abandonment of the Convention on the Regulation of Antarctic Mineral Resource Activities (25 November 1988, 27 ILM 868 ) and adoption of the Protocol on Environmental Protection to the Antarctic Treaty, note 4, over the period 1990-91.

15 The technical nature of much of the ongoing ATS discourse is immediately clear from the websites maintained by the Antarctic Treaty Secretariat at http://www.ats.aq/index_e.htm and the Commission for the Conservation of Antarctic Marine Living Resources at http://www.ccamlr.org/, and from the Final Reports of the annual diplomatic conferences available at these sites. It is not suggested that these are insignificant matters.

16 The “historical amnesia” noted in K. J. Dodds, ‘Post-colonial Antarctica: an emerging engagement’, Polar Record 42, 2006, 59-70 at 61.

17 The term traditionally used for unanticipated military strikes, but which I have argued (Hemmings, note 11) might as well arise through a sudden crisis in relation to Antarctic territory, given its criticality within the ATS.

18 Which can perhaps be seen as the conclusion of the decade-plus negotiations around the minerals regime as reasonably as a new negotiation of an entirely different instrument.

19 See: A.D. Hemmings, ‘After the Party: Addressing the hollowing of Antarctic governance under the Antarctic Treaty system’. Paper presented at The Politics of Antarctica Conference, The University of Canterbury, Christchurch, New Zealand, 8-9 July 2010.

20 See: Rothwell, Hemmings and Scott (chapter 1) and Nasu (chapter 2).

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2. What is Wrong with Territorial Claims in Antarctica?

The assertion of claims to Antarctic territory was business-as-usual, consistent with the division

between states of the entire land surface of the earth and the long practice of appropriating what was

argued to be terra nullius.21 Given the capacity to reach Antarctica, as night follows day so the European

states (and/or their colonial successors) took state-based territoriality with them. The issue is, then, not

that territorial claims were made in Antarctica, there is nothing very remarkable about that, even allowing

for the relatively recent date of these claims and the particular difficulties that the polar regions pose in

regard to the usual procedures.22 It is the subsequent persistence of this situation that surely merits

comment. The global decolonisation process did not occur in Antarctica because here there were no

colonised people to become independent, (and as a corollary the odium acquired retrospectively through

the appropriation of other people’s land was also absent), and the oddity of Antarctica’s circumstances

meant that it could be argued that no ready model for its governance was evident in emergent United

Nations (UN) norms or practice. It might even be argued that the Antarctic Treaty secured a third phase

of Antarctic imperialism.23

Whilst the claims of seven states were probably always viewed by some other states as

inappropriate, Antarctica was remote, little of value (aside seals and whales – and once the latter became

largely pelagic territorial issues became relatively less salient) was at stake, and few states had the capacity

to get to Antarctica or otherwise challenge the claimants. The three-way squabble in the Peninsula,24 fears

of the consequences of Cold-War penetration of the region,25 and the fact that the post-war superpowers

both asserted a basis of claim alongside their repudiation of the seven overt claims,26 ensured, from the

late 1940s, that some response to the problem was inevitable.27 As we know, it was achieved via the

Antarctic Treaty, and its celebrated Article IV, in 1959. Then there were just 82 UN states, of which 12

were signatories to the Antarctic Treaty and seven of those were territorial claimants. Thereafter, whilst

the human presence became permanent, the focus of Antarctic activities was on shareable public goods

                                                                                                                         21 See A.S. Keller, O.K. Lissitzyn and F.J. Mann, Creation of Rights of Sovereignty through Symbolic Acts 1400-1800, New York, Columbia University Press, 1938.

22 On this last point see: D.R. Rothwell, The Polar Regions and the Development of International Law, Cambridge, Cambridge University Press, 1996 at 59-63.

23 See, S. Scott, ‘Ingenious and innocuous? Article IV of the Antarctic Treaty as Imperialism’, The Polar Journal 1, 2011, 49-60.

24 See, from a British standpoint: C.H.M. Waldock, ‘Disputed sovereignty in the Falkland islands Dependencies’, British Year Book of International Law, 25, 1948, 311-353.

25 S. Chaturvedi, The Polar Regions: A Political Geography, Chichester, John Wiley, 1996 at 107-109.

26 On the US, see C.C. Joyner and E.R. Theis, Eagle Over the Ice: The US in the Antarctic, Hanover, University Press of New England, 1997; on the resumed Russian (Soviet) interest in securing its rights from 1939, see R. Bulkeley, ‘Cold war whaling: Bellingshausen and the Slava flotilla’, Polar Record, 47, 2011, 135-155.

27 See the consideration of options across recognition of existing claims, sale of territory, condominium and the so-called “functional approach” in C.W. Jenks, ‘An international regime for Antarctica?’, International Affairs, 32, 1956, 414-426; and G.C.L. Bertram, Antarctica Today and Tomorrow, Dunedin, University of Otago, 1957. Although writing separately, each acknowledges the cooperation of the other.

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(science). Resource activity was still all but impossible, and only a small number of states were present. In

the absence of any real capacity to realise most resource opportunities through the 1960s, the immediate

risks of friction around territorial sovereignty were eased. So, the practical effects of the continuing formal

positions of both claimants and non claimants around Antarctic territory were as a consequence

extremely limited.

It could be argued that the existence of claimants ensured that Antarctica was sufficiently

significant (politically and in public policy terms) that it created the space for the multinational

governance regime built around the Antarctic Treaty and ensured the participation of some smaller states

than might otherwise have been the case.28 With the unfolding of a collaborative, peaceful international

engagement in Antarctica, mediated by the ATS, the ongoing maintenance costs of vestigial and

unrealised territorial positions there seemed slight to claimants, and peripheral to non-claimants.

Fast-forward to the present, and the picture looks somewhat different. The contemporary world

has 193 UN member states, most of which remain technically or economically disabled from Antarctic

engagement. Only 54 are involved in any part of the ATS, and only 30 exercise substantive influence as

Antarctic Treaty Consultative Parties (ATCPs) or Commission Members under the Convention on the

Conservation of Antarctic Marine Living Resources (CCAMLR).29 The seven claimants are accordingly a

substantially smaller proportion of the global community than they were in 1959. So, one immediate moral

consideration is that the present Antarctic dispensation, including the treatment of territory, was arrived

at prior to the existence of more than half of the world’s present states, as a result of an imperial and

colonial model now generally repudiated. A significant further and practical consideration is that 185 states

appear not to recognise the Antarctic claims, although a smaller number have clearly declared this. The

United States and Russia have well known positions of non-recognition pre-dating the Antarctic Treaty,

the Group of 77 developing states (G-77)30 have implicitly indicated non-recognition in the course of the

‘Question of Antarctica’ process in the UN General Assembly in the 1980s31 and, more recently, some

non-claimant ATCPs have declared (or reiterated) non-recognition in the context of claimant submissions

to the Commission on the Limits of the Continental Shelf (CLCS).32 Some states go further and ‘dispute’

the territorial claims.33 Whether apparent silence on the part of other states in relation to Antarctic

                                                                                                                         28 A.D. Hemmings, note 11 at 81.

29 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, 19 ILM 841.

30 Established in 1964, it now comprising 131 states.

31 Since many G-77 states argued inter alia that Antarctica was the Common Heritage of Mankind. See: Question of Antarctica: Study requested under General Assembly resolution 38/77’, Report of the Secretary-General, Part Two - Views of States, Volumes I-III. Thirty-ninth session of the UN General Assembly, Document A/39/583,.

32 Germany, India, Japan, Netherlands, Russia and the United States - see details and sources in A.D. Hemmings and T. Stephens, ‘The extended continental shelves of sub-Antarctic islands: implications for Antarctic governance’ Polar Record, 46, 2010, 312-327.

33 For detail on disputes, see H.G. Darwin, ‘General Introduction’, in H. Waldock (ed) International Disputes: The Legal Aspects, London, Europa Publications, 1972, 57-75. A Byzantine discourse sometimes develops around the substantive difference between “non-recognition” and “dispute” in the Antarctic context, the general existence of

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territorial claims can be taken as evidence of ‘acquiescence’, where these states have not protested

“against a situation where a right to protest existed and its exercise was called for”34 is an interesting legal

point.35 The majority of states did not exist as such at the time the Antarctic Treaty was adopted and the

claims placed in a diplomatic limbo through Article IV, and at this point the non-recognition of territorial

claims by the two superpowers was already well known. In combination these facts could reasonably have

been seen as fatal to any near-term realisation of claimant aspirations, and thus may have rendered further

explicit repudiation moot. There may have been acquiescence with the dispensation arrived at through

Article IV and to the Antarctic Treaty,36 but whether claimants can assert any wider basis for their

positions than a limited cross-recognition (involving five of the seven claimants)37 is surely debatable.

Certainly, no express recognition of Antarctic claims by any other non-claimant states is identified by the

claimants themselves. The most detailed publicly available examination of an Antarctic sovereignty claim

(for Australia) concludes that outside the immediate areas around its three coastal stations and the

adjacent continental shelf, “there is little evidence to support Australian sovereignty over the vast

hinterland of its claimed sector beyond exploratory expeditions and the extension of sovereignty. It is

thus doubtful whether Australia can support its claim to sovereignty over such territory.”38 Similar doubts

obtain elsewhere, so that “New Zealand’s claim to the Ross Dependency in international law is shaky – as

are all other Antarctic claims”.39 Thus, even from a strictly legal perspective within particular claimants,

the strength of territorial claims is contentious. We have now passed 50 years with all claims ‘parked’

through Article IV of the Treaty.

In combination, these circumstances appear fatal to any prospects of realising claimant rights in

Antarctica, with no intimations that this situation is likely to alter anytime soon. Claimant states evidently

do not exercise sovereignty in any meaningful way in Antarctica, if one applies conventional evidentiary

standards. Judge Huber encapsulated this in the Island of Palmas Case as: “[s]overeignty in relations                                                                                                                                                                                                                                                                                                                                                                                          merely the former being seen by claimant states as evidence of a lower level difficulty with non-claimants. However, in both testimony by US officials in relation to Antarctic budgetary matters (see below, this chapter) and in relation to continental shelf submissions, “dispute” has been used. The Netherlands has referred, inter alia, to “an unresolved land dispute in relation to Australia’s claim to territory in Antarctica” – see Netherlands Note NYV/2005/690 of 32 March 2005, available online at http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_nl.pdf, and repeated this in relation to the Norwegian submission – see Netherlands Note NYV/2009/2458 of 30 September 2009, available online at http://www.un.org/Depts/los/clcs_new/submissions_files/nor30_09/nld_re_nor_2009.pdf

34 R.Y. Jennings, The Acquisition of Territory in International Law, Manchester, Manchester University Press, 1963 at 36.

35 On the doctrine of acquiescence see I.C. MacGibbon, ‘The scope of acquiescence in international law’, British Year Book of International Law, 31, 1954, 143-186.

36 For an argument that the international community has acquiesced to the Antarctic Treaty – albeit an argument that other participants contested - see “Remarks by Rudiger Wolfrum” in ‘Panel discussion on the legal and political background to the Antarctic Treaty’ in Polar Research Board, Antarctic Treaty System: An Assessment, Washington DC, National Academy Press, 1986, 78-80.

37 Australia, France, New Zealand, Norway and the United Kingdom.

38 G.D. Triggs, International Law and Australian Sovereignty in Antarctica, Sydney, Legal Books, 1986 at 322-323.

39 F.M, Auburn, ‘The Ross Dependency – An Undeclared Condominium’, Auckland University Law Review 1(3), 1970, 89-106 at 102. See also generally, F.M. Auburn, The Ross Dependency, The Hague, Martinus Nijhoff, 1972.

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between States signifies independence. Independence in regard to a portion of the globe is the right to

exercise therein, to the exclusion of any other State, the functions of a State” (emphasis added).40 This

situation plainly does not obtain in Antarctica.

The putative plan-B claimant arguments that claims remain unaffected in relation to states which

are not party to the Antarctic Treaty (and thus not insulated by Article IV) and/or may be an insurance

against a collapse of the status quo of the ATS seem, frankly, politically rather fanciful. The former

involves having a bob-each-way, since claimants (like other ATCPs) defended their special rights and

duties in Antarctica against the 1980s challenge of the G-77 in the UN General Assembly by arguing the

general validity of the Antarctic Treaty’s arrangements and consistency with the UN Charter.41 It seems

unlikely that non-Parties will accord much respect to such selective deployment of the Antarctic Treaty

against them.42 The substantive collapse of the multilateral Antarctic regime would surely reflect a

geopolitical event of such moment that assertions of more ancient ‘rights’ at this point would realistically

offer slim, if any, benefits. There is no Golden Age of Antarctic territorial recognition to which one might

return in extremis. To the extent that the stances of other states may collectively be taken as indicative of

international judgement, territorial claims in Antarctica are plainly ‘wrong’ in some sense if they only

attract such slight international support. Put simply, the idea of enduring rights to territory remote from

the metropolitan area has had its day, notwithstanding the scattered remnants of empire.43

For a long time, rejection of claims was a largely abstract affair. Whatever other states (both

inside and outside the ATS) felt about the claims, there was, post Article IV, little real friction because the

sorts of activities conducted in Antarctica did not meaningfully invoke claimant rights issues. The dance

around claimant sensitivities necessary to reach consensus at Antarctic Treaty Consultative Meetings was

just that, a dance and not manoeuvres. Nonetheless, national positions around territorial claims plainly

have had effects on the form of even safe cornerstone arrangements such as scientific cooperation in

Antarctica from the start of the ATS.44 But through an era of Antarctic engagement where the resource in

question was essentially the shareable public goods of scientific research, claims could be put to one side.

                                                                                                                         40 Island of Palmas Case (Netherlands, USA), Reports of International Arbitral Awards, Volume II, 1928, 829-871 at 838, available online at http://untreaty.un.org/cod/riaa/cases/vol_II/829-871.pdf

41 This stance is perhaps best developed in R.A. Woolcott, ‘The interaction between the Antarctic Treaty System and the United Nations System’, in Antarctic Treaty System: An Assessment, Washington DC, National Academy Press, 1986, 375-390. Australia convened the informal group of Treaty parties at the UN in New York during the mid to late 1980s and thus was often expressing general ATCP sentiments in relation to The Question of Antarctica.

42 In relation to Article IV, perhaps the more interesting facet is that, unlike Parties, non Parties are not precluded from asserting territorial claims during the lifetime of the Treaty: D.R. Rothwell et al, International Law: Cases and Materials with Australian Perspectives, Cambridge, Cambridge University Press, 2011 at 290.

43 Most obviously the 14 British Overseas Territories and 10 French Overseas Departments and Territories which include these states’ sub-Antarctic and claimed Antarctic territories. See respectively I. Hendry and S. Dickson, British Overseas Territories Laws, Oxford, Hart, 2011; and R. Aldrich and J. Connell, France’s Overseas Empire: Départements et territories d’outre-mer, Cambridge, Cambridge University Press, 1992.

44 A.D. Hemmings, ‘Why did we get an International Space Station before an International Antarctic Station?’, The Polar Journal, 1, 2011, 5-16.

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This may now have changed. The Antarctic present sees the intersection of two historically problematic

issues: stances around territorial sovereignty and the question of resource access, now that we can actually

do complex things in the region. Our ability to do these things (most obviously resource activities) arises

through technological advances and profound changes in the norms and functioning of the wider

international system post Cold-War, which have dissolved some of the glue that held the ATS together

and brought newly competitive commercial interests into play there.45 If there are now expectations of

realising economic benefits in Antarctica,46 a claimant will surely feel itself entitled to particular privileges

in relation to ‘its’ area, with consequential stimulation of nationalism.47 A nationalism moreover that is

not necessarily entirely within the control of that state’s government.48 It also risks giving edge to the

longstanding rejection of claimant status by other states, which have their own interests in resource access

and decisions around this. Writing soon after the adoption of the Antarctic Treaty, Hayton pointed out

the challenge to the new dispensation posed by the resource issue:

should some very rare and important raw material be discovered there in commercial

quantities – and over the long run this seems highly probable – immediately there will be

renewed nationalistic pressures upon the leadership of all states to acquire rights in the

newly ‘valuable’ region.49 (emphasis in original)

These issues are unfolding against a background in Antarctica, as elsewhere, of changing relative

power in the global system. Whilst the relative decline of the United States and the rise of Chinese power

may be more evident in other places, there are intimations of this in Antarctica too. Geopolitical change,

in a region whose existing governance architecture is based on American blueprints, dating from and

predicated on the Cold-War, poses additional challenges to the viability of claimant positions quite

independently from the challenges of globalism. Suddenly, positions on claims have real-world

consequences. Either the claimant’s historical territorial prism is going to be vindicated, or it is not.50

Realistically it is not likely to be vindicated, and therefore some reappraisal of approaches is in the

national interest of even the claimants. Better to anticipate the reality, and have some prospect of

influencing the future, than to hold on to obsolete ideas and find oneself overtaken by events.                                                                                                                          45 For a consideration of the effects of globalism on the ATS, see: A.D. Hemmings, ‘From the new geopolitics of resources to nanotechnology: Emerging challenges of globalism in Antarctica’, The Yearbook of Polar Law, 1, 2009, 55-72.

46 Currently, from marine harvesting, tourism and bioprospecting, with minerals access (presently constrained under Article 7 of the Madrid Protocol) and both living and non-living resource on the continental shelf (albeit in cold-storage vis-à-vis the CLCS) twinkling on the horizon.

47 On nationalism generally, see B. Anderson, Imagined Communities, 2nd Edition, London, Verso, 2006.

48 For a discussion around the issue of Antarctic nationalism, see: K.J. Dodds and A.D. Hemmings, ‘Frontier vigilantism? Australia and contemporary representations of Australian Antarctic Territory’, Australian Journal of Politics and History, 55, 2009, 513-528; K. Dodds, ‘Sovereignty watch: claimant states, resources, and territory in contemporary Antarctica’, Polar Record, 47, 2011, 231-243: and A. Howkins, ‘Icy relations: the emergence of South American Antarctica during the Second World War’, Polar Record, 42, 153-165 at 163.

49 R.B. Hayton, ‘The Antarctic settlement of 1959’, The American Journal of International Law, 54, 1960, 349-371 at 370.

50 A.D. Hemmings, note 11.

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3. The Antarctic Treaty System as a Shelter for Territorial Sovereignty

Perhaps the most surprising achievement of the ATS is its apparent sheltering of the various

positions on territorial sovereignty for half a century. A fly on the wall of the Washington discussions in

1959 might have supposed that the ingenious crafting of Article IV was essentially a temporary expedient,

the necessary confidence-builder to secure a new dispensation whose inevitable outcome, at some future

date, would be the final resolution of this matter. This might have occurred through active decision-

making;51 it might have occurred through the sense of territorial entitlement falling into disuse. Neither

has eventuated. It is perhaps not entirely surprising that claimants should not subsequently have felt

inclined to reopen the issue; although, as discussed below, New Zealand did toy with the idea in the mid

1970s. The window for such self-reflection by claimants may have been as short as 15 years, in the

interval between the adoption of the Antarctic Treaty and the opening of the resource focus of the mid

1970s.52 For the next 15 years, with the attention of the ATS on (sequentially) resource issues around

seals, marine harvesting and mining, existing claimants were perhaps less likely to entertain even cosmetic

changes. Meanwhile, on some views, Antarctic science has been used as a “surrogate instrument” for

supporting territorial claims.53 The claimant states’ approaches to the continental shelf issue over the past

decade indicates a reinvigoration, rather than any diminution, of territorial interests.54

The more interesting question is why the non-claimant ATCPs and the United States in particular

(as the Antarctic Treaty deus ex machina) seem to have entirely abandoned any serious thoughts about an

Antarctic beyond claims. It may be no surprise that detailed official statements on Russia’s approach to

strategic issues in Antarctica other than a periodic re-statement of their rejection of claims,55 are not

readily available. Indirectly, there is recent evidence of perhaps renewed Russian interest in flagging its

historic rights in Antarctica through celebration of the anniversary of the Bellingshausen expedition.56 But

                                                                                                                         51 E.g, via the review conference allowed for under Antarctic Treaty, note 3, Article XII(2) 30 years after the entry into force of the Treaty. Such a review conference, whilst mooted around the time of the eclipse of the Convention on the Conservation of Antarctic Mineral Resource Activities, has not occurred.

52 Although discussions around the first resource issue, sealing, and what became the Convention on the Conservation of Antarctic Seals (1 June 1972, UNTS 175 ) started as early as 1964. See A.D. Hemmings and J. Jabour, ‘Already a special case? Australian Antarctic Policy in the first decade of the Antarctic Treaty’, in M. Haward and T. Griffiths (eds) Australia and the Antarctic Treaty System: 50 Years of Influence, Sydney, UNSW Press, 2011. In fact commercial sealing did not recommence.

53 A. Elzinga, ‘Antarctica: The construction of a Continent by and for Science’ in E. Crawford, T. Shinn and S.Sorlin (eds) Denationalising Science: The Contexts of International Scientific Practice, Dordrecht, Kluwer, 1993, 73-106 at 88.

54 A.D. Hemmings and T. Stephens, ‘Australia’s extended continental shelf: What implications for Antarctica?’ Public Law Reporter 20, 2009, 9-16; J. Jabour, ‘The Australian continental shelf: Has Australia’s high-latitude diplomacy paid off?’ Marine Policy 33, 2009, 429-431.

55 For example, in relation to the Australian submission to the CLCS see Translated Russian Federation Note No. 739/n of 9 December 2004, available online at http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/clcs_03_2004_los_russiantext.pdf

56 Embassy of the Russian Federation, ‘Circumnavigation of Antarctica by Russian Explorers’. Special Advertising Feature, Russian National Day, The Canberra Times 11 June 2010, 22.

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no active Russian strategy in relation to claims is evident. The United States presents a more surprising

picture when it comes to understanding its high policy in the polar regions. Until relatively recently

Antarctic and Arctic policy were framed through a common 1994 Presidential Directive.57 However, in

2009 the Arctic was made the subject of its own, publicly available, directive.58 The 1994 Presidential

Directive “remains in effect for Antarctic policy only”,59 but is not publicly available and one is driven to

secondary sources to ascertain current US policy,60 and earlier documents released under Freedom of

Information Act requests which may reveal enduring US Antarctic interests.61 Given the long and intense

Cold-War sensitivities around the Arctic, and the formal demilitarization and presumed transparency

around Antarctic intentions, it is ironic that it is now easier to assess US policy in the Arctic than in the

Antarctic. Evidently there are secret aspects to US Antarctic policy, and one can only presume that they

may attach to military matters, high relations with other states, and/or resource access considerations.

One secondary source states that “the importance of Antarctica for national security, environmental and

scientific interests was reflected in PDD-26 signed by President Clinton” and notes that the US presence

in Antarctica is “particularly important when viewed in the light of the dispute over territorial sovereignty

in Antarctica”.62 The same source notes the US rejection of these claims and that the “United States has a

solid basis of claim in Antarctica, resulting from its activities there prior to 1959”.63 There are no

indications within this admittedly limited material of any strategic approach to resolving the claims

situation. Thus, in a two page paper “Juridical positions of the Antarctic Treaty Parties” within the 1975

NSC Memorandum, it is merely noted that “[t]he United States has not recognised claims of territorial

sovereignty asserted by any country over any portion of Antarctica. At the same time, the United States

has not made a claim itself, and has consistently reserved all its basic historic rights in Antarctica” and

“Article IV of the Antarctic Treaty sets aside the claims issue in the interests of international cooperation

for the duration of the Treaty, or until 1995”.64 Finally, in the listing of “U.S. Interests and Objectives in

Antarctica” in the 1975 Memorandum, the last two of six under “Political and Security” are:

                                                                                                                         57 Presidential Decision Directive / NSC-26 (PDD-26) issued 1994.

58 National Security Presidential Directive / NSPD-66 (Homeland Security Presidential Directive / HSPD – 25) Arctic Region Policy, The White House, issued 9 January 2009, available online at http://www.cmts.gov/docs/arcticpolicy.pdf

59 Paragraph IA of PDD-26, note 57.

60 Some of which are quite anodyne, see for example the Antarctic information at the website of the Department of State http://www.state.gov/g/oes/ocns/opa/c6528.htm

61 United States Policy and Program for Antarctica, Memorandum for the President, NSC Under Secretaries Committee, 29 November 1975. This document is largely concerned with Antarctic strategic issues vis-à-vis the Soviet Union, and US stances in relation to arrangements and property rights around the Antarctic minerals resource matters then under discussion. Copy on file with author.

62 W.J. Burns, ‘Unclassified Memorandum for Andrew D. Sens, Executive Secretary National Security Council on Antarctica: Funding of the United States Antarctic Program, including South Pole Station’, Washington DC, 9 March 1996, available online at http://www.fas.org/irp/offdocs/pdd26.htm

63 Ibid.

64 The 1995 reference alludes to the withdrawal clause at Antarctic Treaty, note 3, Article XII 2(c).

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- Ensure continued access to all areas of Antarctica and the Southern Ocean for peaceful

purposes, and, conversely, prevent any other state from denying such access to the U.S.

or its nationals on the basis of Territorial claims or otherwise;

- Preserve any basis of U.S. claim to territorial sovereignty that existed prior to the entry

into force of the Antarctic Treaty.

The recent case history of non-claimant ATCP notes in relation to submissions by claimants to

the CLCS show the United States, Russia, Germany, India, Japan and The Netherlands variously

reiterating their non-recognition of the territorial claims upon which the asserted coastal state rights in

relation to the continental shelf are predicated. But this does not translate into any apparent active policy

towards a final resolution of this situation.

This is the situation notwithstanding repeated demonstration that claimant positions play an

active part in the operation of the ATS. To adduce just a few examples: Argentine nationalism and British

intransigence in response added years to the resolution of the actual location and modalities of the

Antarctic Treaty Secretariat; Chilean and Argentine claimant stances have effectively stymied reaching

consensus on the prohibition of land-based tourism facilities; New Zealand economic and sovereignty

interests were seen as prime drivers of its initiation of CCAMLR-regulated marine harvesting in the Ross

Sea; the absence of any real tourism activity in the Australian Antarctic Territory and the location of

Australian tourism activities in the Peninsula meant Australia was entirely disinterested in tourism

regulation for almost a decade.

Evidently, these have been difficulties rather than impediments to the functioning of the ATS,

but they intimate a reality bearing on the sort of issues that could be tackled within the ATS, and the

manner in which they might be approached. These difficulties have occurred alongside other sorts of

difficulty: disparities in capacity and national power; differences in outlook between fishing states and

more conservation-focussed states within CCAMLR; varying experience of environmental standards at

home, let alone in Antarctica; and so on. The final pattern of ATS behaviour is rarely solely determined by

positions on territorial sovereignty. But, to introduce a personal note, having sat through 37 ATS

meetings over 20 years, the role that claimancy plays in the workings of this system is inescapable.

Critically, the evolving ATS has seen the accommodation of Article IV essentially embedded in each

succeeding instrument.65

If one looks to the most obvious commitment to engagement with sovereignty-related matters in

the Antarctic Treaty itself, the apparent undertaking to consider “questions relating to the exercise of

jurisdiction in Antarctica”,66 the continuing sensitivities are revealed. Jurisdiction was not even raised until

1992, when a paper “Issues relating to the exercise of jurisdiction in Antarctica” was stimulated by a death

in Antarctica following an incident involving citizens of two Antarctic states. Without openly discussing                                                                                                                          65 Generally through non-derogation clauses, but it is repeated verbatim in CCAMLR, note 29, Article IV.

66 Antarctic Treaty, note 3, Article IX 1(e).

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this, it was decided to refer it to the next ATCM, which in 1994 decided not to consider it further until “a

request was made by a Consultative Party to reinclude it”. That has still not happened.67 Clearly some

profound sensitivities attach to discussing anything touching on territorial sovereignty, notwithstanding

Article IX, even when as here the triggering incident did not directly involve nationals of claimant states,

although it occurred in an area claimed by three. But the fact that considering this matter would

necessarily entail reopening questions around territorial issues was conclusive.

The existence of the ATS, and most particularly the 1959 treaty at its core, may have created its

own Catch-22. Unresolved territorial sovereignty necessitated the creative mechanism of the Antarctic

Treaty, but having done so it is now so central to that treaty that to tackle sovereignty is now allegedly to

threaten the treaty, and nobody wants to do that for fear of something worse. If this continues to be the

political judgement, then possibly the Antarctic Treaty will have preserved the original problem much

longer than it would otherwise have survived unaided. Of course the consequences of its past resolution

by alternate means may not have been very satisfactory; but that in itself hardly provides grounds for

forever postponing any attempt at resolution.

So why has there been no attempt at resolving territorial sovereignty after half a century of the

Antarctic Treaty? In part no doubt it reflects the marginal significance of Antarctic affairs for most non-

claimants. There are always the proverbial bigger fish to fry in international relations. Unless and until the

Antarctic is beset by a significant crisis, it simply does not warrant the diplomatic and political effort that

challenging territorial sovereignty there would require. Note also that the ATS lacks a political forum – its

highest fora are meetings of officials. So structurally, it is not best placed to consider what are essentially

political matters.68 But might there be another calculation – at least for the more economically robust

members of the Antarctic club? So long as territorial sovereignty is not resolved, there is a ready check on

the extent of internationalisation of Antarctic arrangements. The dance around sovereignty sensitivities

effectively constrains the level and form of governance and operational management of human activity in

Antarctica. Perhaps the claimants are beneficiaries of this – their amour-propre reassured by limiting the

further surrender of their sovereignty. But other beneficiaries may be those states which conduct, or wish

to conduct, particular activities in Antarctica, because they remain unencumbered by international

obligations. On this view, the apparent constraint of international regulation resulting from the failure to

resolve the territorial sovereignty complication is in fact a convenient laundering mechanism for a sort of

restrained free-for-all, in which the most powerful are the freest. The defeat of territorial sovereignty

would seemingly require the establishment of a new system architecture for the ATS,69 one that would

                                                                                                                         67 This is examined in more detail, and sources provided, in A.D. Hemmings, ‘After the Party: Addressing the hollowing of Antarctic governance under the Antarctic Treaty system’. Paper presented at The Politics of Antarctica Conference, The University of Canterbury, Christchurch, New Zealand, 8-9 July 2010.

68 On the question of the ATS institutional architecture see Hemmings, ibid.

69 One might suppose that an immediate effect might be to leave the Antarctic Treaty Area as more clearly and generally a condominium than can presently be argued to be the case.

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likely still depend upon consensus decision-making, and whilst that would give states (including the large

and powerful ones) some reassurance about the sorts of things that would be actively managed, they

would be more exposed than they may be now. Either they would deny the consensus to manage the

activity in question, or they would to some extent become enmeshed in collective issue-arrangements

around which presently there are no substantive obligations. This is necessarily speculative, but it is

canvassed here because of a sense that territorial claimants are not necessarily the only states which have a

vested interest in the perpetration of only a very limited form of international governance in Antarctica.

However, if resolution of territorial sovereignty is possible, what sort of form might that take and

by what process might it eventuate? In general terms, four sorts of options seem to present themselves: (i)

the question of resolving the territorial claims is brought to a head by non-claimant states, perhaps most

obviously those non-claimants which are Antarctic Treaty Consultative Parties – i.e. challenge from within

the ATS; (ii) a forceful challenge from outside the ATS, either whilst the Antarctic regime is still fully

functioning, or at some point of ‘crisis’ whereat the ATS itself comes under challenge; (iii) a reassessment

is initiated by one or more of the claimants themselves; and (iv) without any ‘active’ process the territorial

framing (what I have termed elsewhere the territorial prism)70 simply falls into disuse.

Clearly the last option has not eventuated over 50 years, so although it remains a theoretical

possibility, it seems the least likely option, particularly post-CLCS submissions.71 The external challenge

option was, to a degree, tried in the 1980s through the Question of Antarctica in the UN General

Assembly, around the then-current debate about future minerals exploitation in Antarctica. Whilst that

challenge was about more than claimant positions (including a general G-77 charge of appropriation of

global resources by the developed world) it subsumed some concerns about claims. The wider ATS

bought off that challenge through a progressive opening up of ATS membership and by the eventual

abandonment of minerals resource exploitation. In the medium term (20+ years?) this issue may be

revisited.72 The variant on this option grounded in non-claimant members of the ATS has not been tried,

and may be the more likely route in the medium term. Finally, the option of a claimant or claimants

deciding to abandon claims presents itself. These last two options are discussed in more detail.

4. Predicament of a Reluctant Claimant?

The claimant states, whilst having some common interests, have not been monolithic in the detail.

Viewed across the period since adoption of the Antarctic Treaty, some might be characterised as ‘hard’

                                                                                                                         70 A.D. Hemmings, note 11.

71 Disuse might have been demonstrated if the claimant states, or a substantial bloc of them, had decided not to raise their Antarctic continental shelf coastal state rights in relation to the Antarctic continental shelf.

72 For example, in relation to bioprospecting. See A.D. Hemmings and M. Rogan-Finnemore, ‘Access, obligations and benefits: Regulating bioprospecting in the Antarctic’ in M.I. Jeffery, J. Firestone and K. Bubna-Litic (eds), Biodiversity Conservation, Law + Livelihoods: Bridging the North-South Divide, New York, Cambridge University Press, 2008, 529-552.

  15  

claimants (Argentina, Australia, Chile), others as ‘softer’ (France, Norway) with New Zealand and the

United Kingdom somewhere between, and changing over time. Australia, New Zealand and the United

Kingdom inherit claim positions that are linked to an imperial past and joint recognition and, with France

and Norway, form the group which cross-recognise each others’ claims. Argentina and Chile, despite their

competing Peninsula claims, sometimes have common regional perspectives and have some joint

operational arrangements. France seems the least assertive claimant – perhaps a consequence of having

the smallest claimed territory without great obvious economic potential. For France, the sub-Antarctic,

and other Indian Ocean islands north of the Antarctic Treaty area,73 may be the more critical concern.

With Norway there is a sense that today its prime political concern is avoiding precedents which might

have implications for the strategically more important, complex and proximate Svalbard. New Zealand

seems to be the state which has come closest to really reassessing the merits of being a claimant in the

1970s, but became more assertive again in the 1990s, essentially around Ross Sea fishing. The United

Kingdom, outside its difficult bi-lateral relationship with Argentina around disputed territorial claims both

north and south of 60°S, may be easing off its Antarctic claimant position. New Zealand and the United

Kingdom present contrasting illustrations of the practical difficulties faced by claimants who may be

prepared to re-examine the utility of positions as territorial claimants.

New Zealand under Prime Minister Walter Nash was prepared to consider abandoning its claim

to the Ross Dependency as part of an Antarctic dispensation in the 1950s.74 The question was not taken

to conclusion and the Antarctic Treaty was adopted with New Zealand as a claimant. However, during

the Second Reading debate for the Bill implementing the Treaty, Nash made possibly his clearest

statement about the claims:

What we as a Government desired on behalf of the people of New Zealand was the

abandonment in its entirety of claims by nations having or asserting sovereignty over any area,

thus making it a completely international area without any possibility whatever of war.75

Note that Nash indicated a preference for a general abandonment of claims, not just New

Zealand’s, but this was not acceptable to other claimants, whom he identified:

We were prepared to revoke our own sovereignty in favour of an international regime, and

Britain was in the same position, but there was some reluctance on the part of other countries,

some of them within the Commonwealth of Nations, to do that. Australia has a large investment

in Antarctica, and Chile and the Argentine were of the opinion that Antarctica was contiguous to

                                                                                                                         73 R. Aldrich and J. Connell, note 43.

74 See C. Beeby, The Antarctic Treaty, Wellington, New Zealand Institute of International Affairs, 1972 at 8-9; K. Sinclair, Walter Nash, Auckland, Oxford University Press, 1976 at 325; and for Nash’s varying positions on this M. Templeton, A Wise Adventure: New Zealand and Antarctica 1920-1960, Wellington, Victoria University Press, 2000.

75 Second Reading, Antarctica Bill, 12 October 1960, Parliamentary Debates (Hansard), Fourth Session, Thirty-second Parliament, House of Representatives, 325, 1960, 2979-2995 at 2979.

  16  

them, and had at one time been part of their area. They had claims they desired to sustain. So it

was agreed that all claims should be left in their present state for the duration of the treaty.76

New Zealand possibly considered the abandonment of its claim again before the Eighth ATCM

in Oslo in 1975 at the behest of Prime Minister Bill Rowling. No paper trail comparable to the 1950s

exists in any New Zealand document so far secured,77 and no record of such a discussion appears in the

Final Report of the ATCM.78 My understanding is that whilst Rowling raised this with officials, it was

agreed that it would only be explored informally, and was only touched upon by officials in Oslo, who

reported back a lack of support. If this is a correct understanding of the way in which this matter was in

fact handled, the absence of documentary evidence is unsurprising. Certainty on these matters is

impossible, but another matter supposedly raised by New Zealand in Oslo, establishing Antarctica as a

World Park, which is addressed in the Submission to the Prime Minister (again in paragraph 9) was also

raised only orally, left no record and went down like “a lead balloon”.79 A tentative conclusion about the

New Zealand abandonment of claim option in 1975 is that New Zealand officials (perhaps recalling the

1959 discussions) who were not enthusiastic about the idea, persuaded their political masters that

informal and general discussions only were best, cast the possibility to their overseas colleagues (perhaps

only other claimants, or even just Australia and the United Kingdom) in general terms, and received the

anticipated answer that this might not be helpful. This killed the initiative. Whatever the exact details, the

difficulties with a single claimant (or perhaps even two, drawing on Nash’s characterization of the British

position) considering abandonment of its claim obviously include the attitudes of other claimants,

particularly where those may see such an action as a zero-sum-game in relation to their own territorial

claims. Moreover, in 1975 (as in 1959) the Antarctic regime was at a critical juncture for other reasons (its

establishment in 1959, the commencement of the 15 years plus debate around minerals in 1975).

Reassessment of claims at this point (the more so if it was likely to engender a general debate on claims)

could be seen, or painted, as inimical to wider interests and stability. A unilateral reassessment of claimant

status would necessarily require greater conviction and political effort than was evident in New Zealand

on these two occasions. But, is there a cautionary tale here about the prospects for any unilateral

abandonment of an Antarctic territorial claim?

The United Kingdom is one of three states claiming substantially the same area of the Antarctic

Peninsula, and so faces as complex a territorial position as any. Its situation is complicated further by the

                                                                                                                         76 Ibid at 2980.

77 Prime Minister’s Office, Press Statement, ‘Eighth Antarctic Conference’, 9 June 1975. Copy on file with author; and Submission to the Prime Minister from the Secretary of Foreign Affairs, Eighth Antarctic Treaty Consultative Meeting: New Zealand Position on Mineral Exploitation, 29 May 1975. Note that there are numerous redactions in the document as released, some of which seemingly relate to claims issues generally.

78 Norway, Antarctic Treaty: Report of the Eighth Consultative Meeting Oslo, 9-20 June 1975, Oslo, Ministry of Foreign Affairs, 1976.

79 M. Templeton, Protecting Antarctica: The Development of the Treaty System, Wellington, New Zealand Institute of International Affairs, 2002 at 24.

  17  

existence of a sovereignty dispute with Argentina around the South Georgia and South Sandwich groups

in the sub-Antarctic, and around the Falklands/Malvinas, which of course resulted in military conflict in

the early 1980s.80 These out of area events have necessarily impinged on Anglo-Argentine relations within

the Antarctic area,81 and underlay periodic statements about their respective positions in ATS fora.82

Whatever the administrative and legal measures the United Kingdom has introduced to separate these

areas into three distinct British Overseas Territories,83 its interests and policies across these territories

from the Falklands/Malvinas, through the Scotia Arc into the Peninsula are still seen as administratively

and practically coupled,84 particularly by Argentina. Legally distinct, they remain, inter alia, “colonies”.85

However, there are indicators that the United Kingdom is in fact less focussed on the British Antarctic

Territory than some other claimants are on their asserted Antarctic territories. The strength and

international standing of the British scientific programme in the Peninsula, and its substantial logistics

capacity there would appear to deliver the necessary influence within the ATS, without further props.

British practice has suggested a willingness not only to divest itself of stations there, but to transfer these

to other states, including two transfers to competing claimant Chile.86 Although station transfers are not

territory transfers, on the face of it they are not the actions of an assertive claimant either. This approach

contrasts, inter alia, with Australian arrangements with Romania over a station in the Australian Antarctic

Territory, whereby although Romania in practice operates the facility, formally it is shared and not

transferred.87 For the United Kingdom, the difficulty may be whether it could more clearly or formally

step back from its claim to the British Antarctic Territory without sending signals to Argentina in relation

to its long term commitment to territories north of the Antarctic Treaty area. Recall that it was suggested

that the United Kingdom’s announcement of the retirement of its ageing ice patrol vessel HMS Endurance

and cuts to the British Antarctic Survey in the early 1980s were taken by Argentina as indicative of waning

                                                                                                                         80 Around which a voluminous literature has developed, but see L. Freedman’s two-volume The Official History of the Falklands Campaign, Abingdon, Routledge, 2005 for a thorough recent treatment using British sources.

81 See Dodds (Chapter 6).

82 For a typical (and not the longest) exchange see Antarctic Treaty Consultative Meeting, Final Report of the Twenty-ninth Consultative Meeting (Edinburgh, 12 – 23 June, 2006) at paras. 47 – 49.

83 British Antarctic Territory, Falkland Islands, South Georgia and the South Sandwich Islands. See I. Hendry and S. Dickson, note 43.

84 The Governor of the Falkland Islands is also the Commissioner of South Georgia and the South Sandwich Islands, and was previously also the Commissioner for the British Antarctic Territory, although the last has, since 1989, been an official in the Foreign and Commonwealth Office in London. See http://britishantarcticterritory.fco.gov.uk/en/governance/administration So the practical connections have been clear.

85 Hendry and Dickson, note 43 at 4.

86 A.D. Hemmings, note 44.

87 Ibid.

  18  

British interests in the region, and were contributory to Argentine decision-making around the invasion of

the Falkland Islands.88

The New Zealand and United Kingdom cases may suggest that even if a claimant is prepared to

consider the nature of its territorial stance (and in neither case has there been a recent clear signal that they

would in fact finally abandon their respective claims), it is quite difficult to pursue this without creating

any number of complications: in relation to other claimants’ concerns about what this might mean for the

viability of their own claims; in relation to what strategic consideration is presumed to lay behind the

decision; and perhaps in relation to that state’s more general commitment to engagement in the Antarctic

regime. These concerns may suggest that although it remains possible for a claimant to unilaterally

abandon its claim to territory in Antarctica, there are political costs to so doing which may make this an

unattractive diplomatic option barring very significant political needs. If this is the case, then it may

suggest that a change in relation to territorial sovereignty positions may require some form of collective

action by the claimants (or a significant number of them). That requirement obviously raises the threshold

for action, and given the strong Antarctic nationalism evident in some claimants, makes it a harder

proposition. Indeed, right now such a requirement would seem unrealisable given the stances of some

claimants. Unless some other factors come into play.

5. A Challenge for the Non-Claimants?

The majority (21 of 28) of the present Antarctic Treaty Consultative Parties are non-claimants.

Consultative Party membership includes the major OECD states and the powerhouse states of the Global

South.89 By any reasonable reckoning the non-claimant Consultative Parties are a major force, not

obviously in thrall to claimant states in the early 21st Century. Why would these states be prepared to

countenance the continuation of a situation where a small number of their fellow parties claim particular

rights? The historic answer is that these supposed rights have had little opportunity for exercise and have

been formally constrained by Article IV. They may be content for this situation to continue. However, if

the continuance of territorial pretensions in fact constrains the sorts of arrangements, interests and

possibilities that non-claimants attach value to in Antarctica, as opposed to exercising a restraint on what

claimants may be able to do, this tolerance may be tested. The non-claimants, after all, operate in

Antarctica without the supposed comfort of being claimants. They are ordinarily quite able to secure their

national interests (which, like the claimants, invariably includes the maintenance of the ATS) through the

routine exercise of national power, persuasion and influence, and through the consensus decision-making

                                                                                                                         88 See: Falkland Islands Review - Report of a Committee of Privy Counsellors, Chairman The Rt Hon the Lord Franks, London, Her Majesty’s Stationary Office, 1983, available online at http://www.margaretthatcher.org/document/E415E0802DAA482297D889B9B43B70DE.pdf; and L. Freedman, note 80, volume 1.

89 Most obviously Brazil, China and India.

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that runs across the ATS. Ultimately they might suppose that the consensus mechanism provides

sufficient comfort for claimants too.

There is presently no agitation within the non-claimant Consultative Parties for a campaign

against territorial claims in Antarctica, and a spontaneous eruption of moral outrage on this point on their

part seems unlikely in the immediate future. The question may be whether as a result of, or in

combination with, other pressures such an internal source of challenge to the claimants might arise.

Without implying that these are imminent, some candidate scenarios might be: (i) initiation of a major

resource activity on land within the Antarctic Treaty area of the sort anticipated by the Convention on the

Conservation of Antarctic Mineral Resource Activities (CRAMRA), even if not necessarily minerals

activity, which revives the external critique of the proprieties of the ATS; (ii) an attempt by a claimant to

unilaterally exercise claimant or coastal state rights in relation to activities in the Antarctic Treaty area; (iii)

through a frustration with the inhibition of Antarctic regime development by claimants concerned to

maximise their freedom of action or appearance of autonomy in claimed territory; (iv) the appearance of a

major state (or group of states) in the Antarctic, which repudiates participation in the ATS in whole or in

part because of the residual claims situation there; or (v) a major transformation in the political power

system of Antarctica consequent upon major shifts in the global balance of power (the decline of the

West, rise of China/India/country X sort of argument). The likelihood of, or timelines for, such

contingencies are plainly indeterminate.

6. Concluding Observations

The purpose of this chapter has not been to consider alternative bases for the Antarctic regime,90

but merely to challenge the implicit assumption that the present sheltered position of territorial claimants

is unremarkable, normal and perhaps even positive. So enamoured have we become of the ingenuity of

Article IV of the Antarctic Treaty that we tend to overlook or explain away the continuing eccentricity of

our treatment of territorial sovereignty in Antarctica. Is this not a contemporary example of the

shortcomings of the international legal system … in which law frequently lags behind morals to

an extent unknown in the law obtaining within the State, and in which the process of adapting

the law to changed conditions is still in a rudimentary stage?91

We have on the one hand, a small group of states whose continuing attachment to people-less

dependencies there depends on them deliberately not exercising their supposed sovereignty (or exercising

                                                                                                                         90 Some alternatives canvassed in the 1950s (e.g. Jenks 1956 and Bertram 1957, note 27) may remain valid. For consideration of some options for deepening the internationalisation of Antarctic management over the challenging time horizon of the next 50 years see K. Scott, ‘Managing sovereignty and jurisdictional disputes in the Antarctic : The next 50 years’, Yearbook of International Environmental Law 20, 2011, 3-40; and the revisiting of the Trusteeship option in Chaturvedi (chapter 14). Some alternative “prisms” through which claimants could view Antarctica are briefly sketched in A.D. Hemmings, note 11 at 88-91.

91 H. Lauterpacht, The Function of Law in the International Community, Oxford, Clarendon Press, 1933 at vii-viii.

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it with sufficient stealth that we do not notice), whilst other states which believe these claims to be

variously misguided, archaic or absurd quietly disregard their rights but do not openly challenge them. If

you are not a citizen, resident or otherwise under the control of a claimant state when you are in

Antarctica, it is indeed a “fiction” that country X has sovereignty there. Use illicit substances as a US

citizen and it will be the FBI and not the claimant’s constabulary that come calling, howsoever one

finesses the explanation,92 and whatsoever the effect of the existence of claims on the shape of the

Antarctic regime.

More substantively, the persistence of a neutered pretence of territorial sovereignty in Antarctica

is not without consequence for the nature and functioning of the Antarctic regime, and that has

consequences for the place itself. Whilst constraints on the development and shape of the regime are not

only due to territorial sovereignty, this has been a major factor.93 As more things become possible in

Antarctica and as more (and more diverse) actors engage there, the regime functions in an ever more

complex environment, where the cumulative effect of even individually slight complications arising from

territorial sovereignty positions builds. Consensus decision-making is particularly, if not exclusively, a

requirement for states whose position as claimants precludes them being outvoted in decision-making

attaching to ‘their’ territory. The slow pace of (and since 1991 apparent halt to) development of the ATS

is also in part a function of the de-minimis governance favoured by claimants (or the most powerful states

irrespective of whether they are claimants). It may not necessarily ensure best practice in, for example,

environmental management, or (to select a current ATS issue) the management of tourism in the

Antarctic marine environment.94 Although other non-claimant states such as Japan and the United States

also resist the argument, part of the difficulty in gaining agreement to develop any targeted regulation of

bioprospecting activity in Antarctica is due to resistance from claimant states.

Whatever immediate difficulties there may be in exciting the existing Antarctic players into a

reassessment of the acceptability of persisting Antarctic territorial claims – and more significantly

stimulating them to actually seek a resolution – it may now be timely to do so. Whilst there has never

been a perfect time to do so (although the first 15 years of the Antarctic Treaty seem, with hindsight, the

missed opportunity), with the continental shelf issue essentially over, now may be as good as any. Leaving

the matter until a future when once again Antarctic resource issues loom large (as they surely will) may

risk a new external challenge to the entire basket of Antarctic regime arrangements, and not just to the

legitimacy of territorial claims. The containable nature of the G-77 challenge to the ATS in the 1980s may                                                                                                                          92 See, for example, the careful exposition of the situation in relation to “Crimes committed in Ross Dependency” in van Bohemen, G. The Laws of New Zealand, Antarctica, Wellington, Butterworths, 1994 at 23-24.

93 For example, Australian concerns about the jurisdictional, and hence territorial sovereignty, implications of the Scientific Committee for Antarctic Research (SCAR) becoming an independent source of scientific advice to the ATCM, and the development of the 1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora, influenced its (otherwise positive) approach to these matters; see A.D. Hemmings and J. Jabour, ‘Already a special case? Australian Antarctic Policy in the first decade of the Antarctic Treaty’, in M. Haward and T. Griffiths (eds), note 52.

94 See Jabour (chapter 13).

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not obtain the next time those sorts of questions arise. If the ATS has hopes of continuance for anything

like another 50 years, it surely needs to recover a confidence and capacity to evolve, and the judgement

here is that this now requires it to re-evaluate some of its foundational norms.

The Antarctic Treaty System has provided an innovative and, overall, stunningly successful

response to the challenges and peculiarities of this region as we found it in the immediate post World War

II world. With good will, a generally low level of human activity in Antarctica, and the relatively slow pace

of new issues’ arrival there, it was possible to build this system by the progressive addition of new issue-

specific instruments. But at its heart have remained the norms of the 1950s, including most obviously the

existence of territorial claims. Those could not be challenged then because to do so would have rent the

western alliance system upon which the United States and its allies wished to build their containment of

the overwhelming challenge of the age: the Soviet Union. That world has passed, and through

globalization, technical progress and associated pressures on the environment, the Antarctic of the 21st

Century is a different place. Its security, the security of the arrangements through which the international

community organizes itself there, and the security of those states (including the present claimants) which

see themselves as having particular interests there, depends upon us collectively having approaches fit for

purpose. The challenge is now to “re-imagine the Antarctic and the Southern Ocean in a changing

political world”.95 It is the proposition of this chapter that across all of these interests and levels of

Antarctic engagement, a framing which either employs, or has to take into account, the claims to

territorial sovereignty of a very few of the world’s states is no longer helpful; that in the final analysis, it

decreases security in Antarctica.

                                                                                                                         95 K. Dodds, Geopolitics in Antarctica: Views from the Southern Oceanic Rim, Chichester, John Wiley, 1997 at 224.