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Rothwell, Donald R; Nasu, Hitoshi --- "Antarctica and International Security discourse: A Primer" [2008] NZYbkIntLaw 17; (2008) 6 New Zealand Yearbook of International Law 3

Last Updated: 7 February 2019

ANTARCTICA AND INTERNATIONAL SECURITY DISCOURSE: A PRIMER

Donald R Rothwell^[∗] and Hitoshi Nasu^[+]

I. INTRODUCTION

On 1 December 1959 the Antarctic Treaty ^[1] was concluded in Washington and only 19 months later on 23 June 1961 entered into force. The treaty, which between 2009-2011 celebrates two important fiftieth anniversary milestones, formed the basis for what eventually became known as the Antarctic Treaty System (ATS). The ATS includes a number of additional instruments such as the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)^[2] and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol),^[3] plus multiple legally binding recommendations and measures adopted at annual Antarctic Treaty Consultative Meetings (ATCMs). In further evidence of the development of the Antarctic regime, in 2001, the treaty parties decided to establish a permanent secretariat,^[4] which became operational in 2004. When this thickening body of law and institutional development is combined with other bodies of international law that apply in the region, especially that found in the 1982 United Nations Convention on the Law of the Sea (LOSC),^[5] it becomes apparent that there is a distinctive regime which applies in Antarctica and the Southern Ocean.^[6]
Whilst the anniversaries of the Antarctic Treaty and ATS in 2009 and 2011 are both a cause for celebration and reflection, they also provide an opportunity to look forward and consider how the regime will continue to evolve. In that context it is helpful to recall that one of the prime motivators in the conclusion of the Antarctic Treaty was security. The 1950s was a time when Antarctica was the subject of considerable tension. Seven claims had been made to parts of the continent, but they were not widely recognised. The Antarctic Peninsula was particularly contested, with overlapping claims made by Argentina, Chile, and the United Kingdom. The two Cold War protagonists – the then USSR and the US – had a significant presence on the continent, and had reserved their rights to possible territorial claims. Antarctica was being suggested as a venue for the testing of nuclear weapons and there was growing evidence of increased militarisation of Antarctic activities.^[7] In addition, the newly formed United Nations was being urged by countries such as India to take control of Antarctica via some form of trusteeship or condominium.^[8] It is therefore remarkable that at the end of the 1950s it proved possible to conclude the Antarctic Treaty, resulting in the demilitiarization of the continent, creation of a nuclear weapons free zone, the setting aside of sovereignty disputes, promotion of scientific research, and the use of Antarctica only for peaceful purposes.^[9] In effect, a new security construct for Antarctica was created in the form of the Antarctic Treaty.
Security, however, is not a monolithic or static concept, but rather a diverse, context-dependent one. The traditional view of security defines it in military terms with the primary focus on state protection from threats to national interests. Since the end of the Cold War, however, security discourse has expanded beyond the traditional military domain with the proliferation of security agendas including economic security,^[10] environmental security,^[11] food security,^[12] bio-security,^[13] health security,^[14] and human security.^[15] In fact, in 2004 the UN Secretary-General’s High-Level Panel identified economic and social threats and transnational organised crime, as well as inter-state conflict, internal conflict, terrorism, and weapons of mass destruction as global security threats.^[16] The former UN Secretary-General’s 2005 Report, In Larger Freedom, adds to the list poverty, deadly infectious disease and environmental degradation on the grounds that these can have equally catastrophic consequences.^[17] Security concerns have also extended geographically and spatially beyond state borders to the high seas,^[18] and outer space.^[19] Security discourse raises for consideration how Antarctica and the Southern Ocean should be perceived in security terms. Whilst the international community has no trouble in considering ‘Middle East security’^[20] as both an important global and regional issue which encompasses multiple cross-cutting discourses including law, politics, religion, and culture, the notion of ‘Antarctic security’ is less familiar. ^[21] This article attempts an initial exploration of these security issues by first considering current international security discourse, and then assessing some of those issues in an Antarctic context.

II. SECURITY DISCOURSE

The multidimensionality of security is nothing new to the discourse of security,^[22] and yet from an analytical perspective, security is an underdeveloped and essentially contested concept.^[23] Because of this immaturity of the security concept in the discourse, different conceptions of security were first made in military-oriented terms, regarding economic and environmental issues as a potential source of armed conflict.^[24] However, since the UN Development Programme launched the concept of human security in 1994,^[25] security as a concept has featured more variously and yet commonly with a people-centred approach.^[26] The focus on human security has transformed the security paradigm in the way that adequate attention is to be given to address real sources of insecurity from which people around the world suffer.
There are several reasons why different issue areas have recently been framed in security terms. One may express a cynical view suggesting that the ‘securitisation’ of a certain issue arises with the aim to elevate attention to that particular issue at the level of security policy, particularly as a way of securing or increasing financial and other resources allocated to address the issue. However, securitisation of a wider range of issues also represents the changing perception of threats and risks in the community as a result of technological development and increasing social vulnerability.^[27] The broadening of the security paradigm based on the community’s perception then reinforces the perceived power of this concept in political circles.^[28] Thus, the language of security has increased its agenda-setting power, posing challenges to more traditional, rights-based strategies.
There is no international law framework for defining the scope of international security or for guiding how those security agendas should be handled. Yet, the expansion of security discourse has had impacts upon international law concerning international and national security. Most illustrative in this respect is the expansion of the concept of a threat to the peace in the sense of Article 39 of the UN Charter,^[29] which provides the legal basis upon which the UN Security Council is authorised to exercise its enforcement powers. The Security Council acknowledged in as early as 1992 that ‘non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security’.^[30] The Security Council has since then responded, for example, to mass influxes of asylum seekers and large-scale human rights violations, although emphasising the exceptional nature of those situations.^[31]
On other occasions, however, security discourse on the Security Council’s table has been given a relatively conservative reception. A 2007 motion by the UK government to discuss climate change met with strong opposition by other members, which raised concerns regarding the Council’s role on this issue.^[32] The humanitarian catastrophe and insecurity exacerbated by the Burmese authorities refusing the entry in 2008 of foreign aid after Cyclone Nargis prompted some to call for Security Council intervention.^[33] Yet, the issue never found its way onto the Security Council’s agenda.
This restrictive approach is understandable, given that the Security Council is the creation of post-World War II politics whereby leaders were pre-occupied with military threats. Although the increased activities of the Security Council in response to massive human rights violations are a positive development, the UN’s institutional responses to these issues remains the subject of critique. Calls have been made for the creation of a Human Security Council to provide leadership in addressing military and non-military security issues,^[34] a greater dialogue between the Security Council and the Economic and Social Council (ECOSOC) to facilitate early response to human rights violations,^[35] and the creation of a Human Protection Council in a more specific context of protecting civilians during armed conflict.^[36]
In the context of national security, the expansion of security discourse has promoted discussion over an extended application of national self-defence, as demonstrated by the assertion of pre-emptive self-defence and the exercise of the right against non-state actors posing non-traditional military threats.^[37] The expanded notion of security potentially widens the window for exercising extraterritorial state criminal jurisdiction over offences committed overseas against nationals or persons who pose a threat to national security.^[38]
The immediate impact of the recourse to an expanded notion of security is the challenge posed to the operation of norms and rules of international law in dealing with non-traditional security threats. The concept of ‘de-securitisation’, which is defined in the Copenhagen School literature as ‘the shifting of issues out of emergency mode and into the normal bargaining processes of the political sphere’,^[39] may not contribute so much to ‘normalising’ the situation as it did in relation to Arctic security issues at the end of the Cold War,^[40] for the concept of security has since then expanded beyond material security concerning military confrontation. The language of security from vaguely defined threats has in fact been used to distort security discourse and justify states stepping back from their international legal obligations to protect individuals and their human rights at risk. Illustrative is the ‘global war on terror’ following the September 11, 2001, terrorist attacks on New York and Washington, which pushed states to cross the line in defiance of their legal obligations under the Geneva Conventions in the handling of Al-Qaeda detainees at Guantanamo Bay,^[41] and to take extreme counter-terrorism measures notwithstanding human rights concerns.^[42] Another example is tighter border control against asylum seekers,^[43] sending them back to less than ideal situations, as illuminated by Australia’s infamous ‘Pacific Solution’.^[44]
Security discourse will inevitably continue to intrude into other issue and spatial areas, as the public perception of fear and threat is broadened and as technology advances. However, concern has been expressed for conceptual overstretch, possibly draining human security of any real operational applicability.^[45] It is also feared that the continued expansion of security discourse may undermine norms and rules of traditional international law in the absence of guidance as to how security discourse should interact with existing and developing norms and rules of international law. Therefore, when security is invoked to address certain issues, policy-makers are required to seek guidance by reference, at least, to the following two points. The first concerns ensuring that the international rule of law will extend to the way in which security issues are to be dealt with. Sound as it may appear, any extension and application of the international rule of law will be complicated due to the fact that it comprehends multiple values.^[46] Basic principles of international law, such as non-use of armed force and the right of self-determination, can pull in potentially conflicting directions, as illustrated by the debate on humanitarian intervention, which underlines the indeterminacy of those basic principles and the extent to which the international rule of law ‘constitutes a highly manipulable regime that lends itself to politicization’.^[47]
Second, any rule-setting has to have due regard to Third World anxieties driven by the history of western colonisation since the seventeenth century and the strong sense of scepticism against any western sponsored enterprises promoting western values. The concept of human security in the Third World is suspected of having a ‘donor driven agenda’, concerned about achieving the donor’s political and economic aims rather than what developing countries truly value or require.^[48] Similar concern has recently been chorused in the UN General Assembly’s 2009 thematic debate on the Responsibility to Protect.^[49] Here, the linkage between security and development agendas must be carefully considered.
Thus, the expansion of security discourse, especially over the past few decades, requires us to revisit the existing norms and rules of international law so as to see how new security agendas and issues have impacted upon the legitimacy and effectiveness of the current legal regimes.

III. ANTARCTICA, THE SOUTHERN OCEAN, AND SECURITY

A. International Security

Turning to a consideration of Antarctica and the Southern Ocean in a security context the first and most traditional perspective is that of international security as viewed by the Security Council when exercising its Chapter VII powers. In this context, the Council has enormous scope to determine whether under Article 39 of the UN Charter it should take action in response to a threat to the peace, breach of the peace, or an act of aggression in order to ‘maintain or restore international peace and security’. That sovereignty in Antarctica remains contested, and has arguably been neutralised for the duration of the Treaty, would be of no concern to the Security Council if an incident took place either on the continent or the Southern Ocean which met the Article 39 threshold. Accordingly any significant tensions between the seven claimant States to the continent, or between those States and third States who may for example have a scientific research base within the territory of a claimant, or even a terrorist act perpetrated by a non-State actor within the region, ^[50] would be a matter of concern for the Security Council.
Setting aside the political dynamics that exist within the Council, and that each of the five permanent members have substantive Antarctic interests,^[51] there would in principle be no reason why the Council would not respond to such an incident via a Security Council Resolution and remain seized of the matter until such time as it was resolved. The 1982 Falklands War between Argentina and the United Kingdom, two founding members of the Antarctic Treaty with Antarctic claims, was conducted beyond the northern limits of the Antarctic Treaty and resulted in substantive engagement by the Security Council, including by the then Secretary-General, in an effort to resolve the dispute.^[52] It would have to be anticipated that if a similar type of dispute arose again, but on this occasion within the limits of the Antarctic Treaty area, then the Security Council would likewise seek to become engaged via the use of its Chapter VII powers.
In this context it should be noted that notwithstanding the provisions embedded within the Antarctic Treaty providing for demilitarisation of the continent,^[53] the Treaty does not create a regional security arrangement consistent with the mechanisms envisaged under Chapter VIII of the Charter. Accordingly, whilst the Treaty does have dispute resolution mechanisms within it,^[54] these only relate to disputes which arise over the interpretation and application of the Treaty and would not directly extend to matters that normally fall within the remit of the Security Council. The Falklands War also highlights the potential for Antarctica and the Southern Ocean to become embroiled in conflict, which has arisen elsewhere, particularly in adjoining regions.^[55] For example, following the September 2001 terrorist attacks upon the United States, the US Department of Defense adjusted its United Command Plan to include Antarctica within the scope of the US Pacific Command, Africa Command and Southern Command.^[56]

B. State (National) Security

Closely related to this first category of security, is that of state security or what is more commonly termed national security.^[57] There are two contexts within which this needs to be considered. The first is that of the seven Antarctic territorial claimants,^[58] which when extended to include sub-Antarctic possessions, includes a total of eight States.^[59] The second is the security of States who have interests within the region, whether in the form of scientific bases, personnel, ships, or aircraft. This group would principally include all of the Antarctic Treaty Consultative Parties (ATCPs), but would also extend to flag States whose vessels, especially fishing vessels and cruise ships, operate in the Southern Ocean.
The state security of the seven claimants was, and principally remains, a key component of their engagement in Antarctica and was a catalyst for the negotiation of the Treaty. Many of the claims were asserted early in the twentieth century during the so-called ‘heroic era’ of Antarctic exploration. Antarctica was the last of the continents to be effectively divided by primarily European powers, especially by Great Britain, which eventually divested large portions of its claim to Australia and New Zealand. Whilst the Argentine and Chilean claims have a different historical trajectory,^[60] like the other claims they remained contentious and were not universally recognised. Whilst the claims remained unsettled during the height of the Cold War, and Article IV of the Treaty sought to effectively set aside sovereignty for the Treaty’s duration, there is overwhelming evidence that all of the claimants have in one way or another continued to promote their Antarctic territorial claims, of which the lodging of outer continental shelf claims before the United Nations Commission on the Limits of the Continental Shelf throughout the past decade is illustrative.^[61] While therefore the Antarctic Treaty has placed some limitations upon the active assertion of traditional territorial sovereignty, ‘modified’ Treaty sovereignty still remains in place and is actively being asserted. The security of Antarctic claims therefore remains a key plank of the Antarctic policies of each of the seven claimants,^[62] and whilst this is sometimes expressed in a variety of ways their security is as important as those of equivalent ‘external’ territories and possessions.^[63]
With respect to the security of other States with interests in the region, important differences exist within this category. For the United States and Russian Federation - States with long standing historical interests in Antarctica that may have ‘latent’ interests in Antarctic territorial claims - their state security interests are represented by: their large scientific research stations; their ongoing capacity to maintain influence within the ATS; and their reservation of the right to, at some point in the future, assert an Antarctic territorial claim.^[64] For a country like Japan,^[65] its state security interests are bound up not only in its continental research programs, but also in the ongoing conduct of its ‘scientific’ whaling programs in the Southern Ocean, which in recent years have resulted in clashes between environmental activists and Japanese-flagged whaling vessels. Likewise for other States who may not have direct engagement with the ATS, the presence of their flagged-vessels in the Southern Ocean will create a state security interest in the region, though the level of that interest will ultimately depend upon the nature of the activity and level of engagement with Antarctic affairs.

C. Regime Security

Closely allied to state security in Antarctica is regime security. The Antarctic Treaty and the ATS have over their 50 years of operation developed a strong regime which has proven capable of addressing many of the internal issues confronting Antarctica and the region, of which the most significant were disputes over territorial sovereignty and competing claims over the continent. During its lifetime the ATS has been able to respond to new challenges through the adoption of additional instruments such as Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR), and notwithstanding enormous diplomatic efforts given to the negotiation of a minerals conventions in the 1980s,^[66] was able to complete a quick about-face and abandon a minerals regime, place a 50 year moratorium on all minerals activity, and in its place adopt the Madrid Protocol. A parallel diplomatic effort was necessary in the 1980s to counter fierce criticism directed towards the ATS from some members of the United Nations General Assembly who asserted that the ATS was effectively a ‘closed club’ which was not open to membership by other States in the international community. This argument was strongly resisted by key Antarctic States such as Australia and eventually resolved, partly through a combination of an easing in the processes by which States acquire ATCP status and an acceptance that no mining was going to take place in Antarctica for the foreseeable future.^[67] The responsiveness of key ATS States during this period highlighted the importance they attach to regime security. This is an ongoing issue for the ATS as it moves into its sixth decade because the rise of interest in bioprospecting in Antarctica may result in a new issue emerging that will re-awaken latent ‘Third World anxieties’ over Antarctic governance. When combined with the contemporary development of global justice concepts, it could result in renewed calls for modification of the Antarctic governance model.^[68]
ATS security also promotes security of the ongoing research effort and scientific collaboration in Antarctica, which was another fundamental plank in the 1959 negotiations towards the Antarctic Treaty and has continued as a mainstay of the Antarctic regime.^[69] However, the security of the regime is not only reflected in the innovative international legal mechanisms, but also the strong spirit of cooperation and consensus which prevails amongst the Treaty parties, including an ongoing operational interlinking of a number of Antarctic scientific programs making them effectively co-dependent in terms of logistics.^[70]
The protection that the regime affords the claimant States, whose uncertain territorial claims are effectively granted immunity from close scrutiny whilst the Treaty remains in force, is one which the non-claimants also enjoy, though for different reasons. Joyner and Theis have commented on the US position regarding regime security:^[71]

United States policymakers consider the Antarctic Treaty’s broad prohibition on military activities the sine qua non for successful pursuit of all U.S. national security interests in the region. This general security goal has become an overriding consideration for the United States and the other treaty parties, a factor that has prompted them to cooperate on potentially destabilizing economic matters such as access to natural resources.

A current issue for Antarctic regime security is that the region is becoming a congested area for the application of international law. Not only does the ATS regime have application, so does the LOSC as well as an increasing array of additional international instruments that have developed during the lifetime of the ATS and which intersect, overlap and in some instances create conflicts with that regime.^[72] This is particularly an issue in terms of the potential classification of parts of the Southern Ocean under Part XI of the LOSC as part of the deep seabed or the ‘Area’, thereby making it open to deep seabed mining activities contrary to the moratorium created by the 1991 Madrid Protocol. This is an issue which not only raises regime security concerns, but also cuts across environmental and resource security.

D. Maritime Security

Southern Ocean maritime security has been one of the growing phenomena within the Antarctic region over recent decades and takes a number of dimensions.^[73] The first relates to the security of the maritime claims asserted within the Southern Ocean, and whilst those claims which have been made offshore the continent remain contentious the claims offshore sub-Antarctic islands are not because they are made from territories whose sovereignty is not in dispute and because they fall largely outside of the Treaty area. Consistent with the development of the law of the sea via the LOSC it is therefore possible to track throughout the life of the Treaty a growing interest amongst the claimant States in asserting an ever expanding number of Southern Ocean maritime claims,^[74] which in turn has led to concerns about security issues arsing from those claims. This has particularly been the case for States such as Australia, France, New Zealand, Norway, South Africa and the United Kingdom. They have had to deal with the challenges associated with policing the maritime zones adjacent to their sub-Antarctic possessions. This has involved establishing a maritime surveillance and law enforcement infrastructure far distant from the metropolitan State. In response to these issues, some innovative legal arrangements have been entered into to allow for cooperative maritime surveillance and enforcement measures,^[75] whilst the limits of the hot pursuit regime have been tested in the course of some operations.^[76]
There is another dimension to maritime security in the Southern Ocean and this relates to the security of shipping.^[77] Whilst events during the past decade globally have tended to focus on the security of shipping from terrorism or piracy, in the Southern Ocean the focus has been more with respect to traditional maritime hazardous arising from ice, inclement weather, or equipment failure. This has been highlighted in many ways in recent years in the Southern Ocean from adventurers and their yachts being lost,^[78] to incidents involving the Japanese whaling fleet and protestors in the Southern Ocean,^[79] or the sinking or stranding of cruise ships in waters adjacent to the Antarctic Peninsula.^[80] For Australia and New Zealand, who together possess enormous search and rescue (SAR) responsibilities across the Southern Ocean, this has raised significant maritime safety and security issues, especially the possible consequences in terms of loss of life and international repercussions if a SAR operation fails.^[81] There is also a related human security and environmental security dimension to these operations given the potential for significant loss of life if a ship is lost at sea with little SAR support and the ensuing environmental impact from the wreck.^[82]

E. Environmental, Resource and Human Security

Environmental and resource security are closely intertwined in Antarctica, especially with respect to sustainable development.^[83] Large scale whaling and sealing operations had been conducted throughout the Southern Ocean in the nineteenth and twentieth centuries and were in effect the first industrial and commercial activities in the region. Whilst a decline in demand for whale and seal products saw much of this activity cease in and around the mid-twentieth century, the protection and conservation of living resources in Antarctica was on the minds of those negotiating the Antarctic Treaty and Article IX reflected this concern, providing an ongoing mandate as the ATS evolved to address these issues. The initial response was the 1964 Agreed Measures,^[84] followed in 1972 by the Seals Convention,^[85] and then in 1980 by CCAMLR. All of these sought to place constraints on the exploitation of Antarctic wildlife, including Southern Ocean fisheries and krill. The tension and interaction between resource and environmental security perhaps reached its height during the debates over CRAMRA in the 1980s and the eventual rejection of a mining regime in favour of the Madrid Protocol. Since that time, with Antarctica having been declared a ‘natural reserve, devoted to peace and science’,^[86] there has been a very strong focus within the ATS on environmental security.^[87] The effect is that nearly all issues concerning Antarctica are seen to have an environmental dimension,^[88] ranging from the conduct of scientific research, to tourism activity including shipping operations and air navigation, to the building of new scientific stations and infrastructure, and the introduction of disease with its potential impact upon wildlife.^[89]
However, in some instances, Antarctic environmental security is becoming increasingly contentious. One of those areas relates to whaling. Japan’s conduct of the JARPA II research program in the Southern Ocean has generated considerable controversy, especially with respect to the legitimacy of the research program under the 1946 International Convention for the Regulation of Whaling (ICRW).^[90] Japan has ignored repeated calls to halt its scientific research program and between 2007-2009 there were repeated clashes between the Japanese whalers and vessels of the Sea Shepherd Conservation Society protesting against Japan’s whaling activities.^[91] Australia, a party to both the ICRW and the ATS, has suggested that it may seek to challenge the legitimacy of the Japanese whaling program before international courts.^[92]
Another aspect of environmental security which has in recent years brought Antarctica very much into global focus has been climate change. There is overwhelming evidence of the impact of climate change throughout Antarctica ranging from rising temperatures to increased ice melt.^[93] However, unlike nearly all of the environmental issues which have been addressed to date within the ATS, climate change is often viewed as an external issue to the regime and very few of the ATPs or even the claimants States, consider their climate change responsibilities in the context of Antarctica. Whilst considerable attention has been given to climate change in Antarctic science programs,^[94] as French and Scott have argued this focus has been at the ‘expense of developing a targeted normative and institutional response to climate change’.^[95] Nevertheless, climate change is an environmental security issue for Antarctica having multiple legal, policy and political ramifications within the region which will need to be addressed at a national and regime level.^[96]
As suggested above, resource security issues in Antarctica are closely linked to environmental security.^[97] This is clearly illustrated by the manner in which CCAMLR was negotiated in order to implement a precautionary approach to the harvesting of krill in the Southern Ocean, ^[98] and the ongoing issues which have confronted the CCAMLR regime as it has struggled to cope with IUU fishing and the consequences of the overfishing of certain stocks. ^[99] For sub-Antarctic States such as Australia, New Zealand, and France, they have clearly linked the sustainable management of their Southern Ocean fisheries with concerns over environmental and resource security especially in regards to the toothfish fishery, which has been developed in the past decade.^[100] A recent phenomenon that also has a resource and environmental security linkage is that of bioprospecting, which continues to raise ongoing issues with respect to its effective management in Antarctica.^[101]
Whilst the management of Antarctic non-living resources has had a different dynamic, resource security has been an issue throughout the recent life of the ATS and will inevitably return to prominence in the future. One of the clear sticking points during CRAMRA negotiations was recognition of the particular interests of the claimant States in any mining activities that would have taken place within their claimed territories,^[102] and the recognition and maintenance of those interests may well have been at the forefront of the decision to eventually scuttle the convention in favour of the Madrid Protocol.^[103] Whilst the Protocol has placed a 50 year moratorium on mining activities in Antarctica, given the global demand for oil and gas it has to be anticipated that toward the middle of the twenty-first century there will be considerable pressure placed upon the ATS to make Antarctic mineral resources accessible. This pressure may be even greater if oil and gas finds are made off sub-Antarctic islands north of the Antarctic Treaty area. If this were to occur then Antarctic resource security could take on global dimensions depending on how the world was coping with its energy needs at the time.
A related resource issue is that of icebergs and whether there may be scope for freshwater exploitation in the foreseeable future. Whilst this raises multiple legal issues,^[104] including its compatibility with the Madrid Protocol, let alone questions as to how icebergs may be harvested. Given the unknown consequences of climate change for some Southern hemisphere States which already experience drought this is an issue which may have Antarctic resource security implications for the future.
The final security dimension which has relevance is that of human security. Whilst Antarctica does not have any indigenous peoples, and although the populations of the permanent settlements that do exist in the form of the scientific research bases are seasonal, there remains a human security dimension due to the fact that those who live and work in Antarctic do so in a very inhospitable environment. If there were to be a major calamity at one of the bases, such as a devastating fire, or the break-up of ice endangering the lives of the expeditioners, a major search and rescue operation would need to commence in ways not dissimilar to those which occur in other parts of the world following disasters. Antarctica also has implications for human security elsewhere throughout the world, whether it be through its capacity to provide food products, energy, resources, or water.

IV. CONCLUDING REMARKS

The proliferation of security agendas in the past few decades has resulted in the expansion of security discourse. Its impacts upon the norms and rules of international law have to be examined in terms of their legitimacy and effectiveness in the light of evolving security concerns. Whilst little attention has been paid by contemporary scholars to Antarctica in security terms, any analysis of the international relations surrounding Antarctica in the immediate post-War years and in the run up to the 1959 Washington Conference quickly confirms how significant Antarctic security was at that time. However, consistent with the way in which security was often viewed at that time, the focus was upon traditional security constructs such as international and national security. Yet just as security discourse has shifted in the past 50 years so too has the understanding of Antarctic security. As Joyner and Theis have observed, the Antarctic security dimension has evolved from one of serious concern over the possible militarization of the continent to its status today as the largest demilitarized zone on earth. This fact has afforded all States greater opportunities for economic, social, and environmental activities throughout the region.^[105]
Increased human activities in Antarctica and the Southern Ocean, developments to which the ATS has both promoted and contributed, have resulted in an expansion of the security dimension in the region, ranging from international and national security in a traditional sense to regime security, maritime security, environmental and resource security, and even to human security. Over the past 50 years the ATS has been flexible enough to meet new challenges and issues, and yet there have also been signs of disagreements and concerns as to how new security matters in the region should be handled. This suggests that the time is ripe for a more considered assessment of Antarctic security in the twenty-first century.

^[∗] Professor of International Law, ANU College of Law, Australian National University; Co-convenor of the Responding to Contemporary Challenges and Threats to Antarctic Security: Legal and Policy Perspectives Project (2008-2009).
^[+] Lecturer, ANU College of Law, Australian National University. This article builds upon presentations delivered at the Responding to Contemporary Challenges and Threats to Antarctic Security: Legal and Policy Perspectives Colloquium, School of Law, University of Canterbury, 5-7 July 2009. We remain grateful to the participants at that colloquium for their insights and comments on this article, particularly Duncan French, Alan Hemmings, Chris Joyner and Karen Scott, and also to Ms Alison McLennon for her research assistance, however, all responsibility for errors and omissions remain with us.
^[1] Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
^[2] Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982).
^[3] 1991 Protocol on Environmental Protection to the Antarctic Treaty (opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998).
^[4] Karen Scott, ‘Institutional Developments Within the Antarctic Treaty System’ (2003) 52 International and Comparative Law Quarterly 473.
^[5] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).
^[6] For discussion of the ATS and related instruments as a regime see Olav Schram Stokke and Davor Vidas, ‘Effectiveness and Legitimacy of International Regimes’ in Olav Schram Stokke and Davor Vidas (eds), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (1996) 13; Donald R Rothwell, The Polar Regions and the Development of International Law (1996) 409-417.
^[7] See Kenneth J Bertrand, Americans in Antarctica 1775-1948 (1971) 483-546 discussing US military exercise conducted in Antarctica between 1946-1948.
^[8] Rothwell, above n 7, 64-66.
^[9] For some assessments at the time of the conclusion of the Treaty as to these achievements see John Hanessian, ‘The Antarctic Treaty 1959’ (1960) 9 International and Comparative Law Quarterly 436; Robert D Hayton, ‘The Antarctic Settlement of 1959’ (1960) 54 American Journal of International Law 349.
^[10] See, eg, Maria Magdalena Kenig-Witowska, ‘Development Ideology in International Law’ in Subrata Roy Chowdhury, Erik M G Denters, and Paul J I M de Waart (eds), The Right to Development in International Law (1992), 35, 36-38.
^[11] See, eg, Simon Dalby, Security and Environmental Change (2009); Narottam Gaan, Environmental Security: Concept and Dimensions (2004); Karin Dokken and Nina Græger, The Concept of Environmental Security – Political Slogan or Analytical Tool?: International Peace Research Institute Report No 2 (1995).
^[12] See, eg, Wael Allam, ‘Food Supply Security, Sovereignty and International Peace and Security: Sovereignty as a Challenge to Food Supply Security’ in Ahmed Mahiou and Francis Snyder (eds), Food Security and Food Safety (2006) 325; Melaku Geboye, ‘Food Security and International Trade Law: An Appraisal of the World Trade Organization Approach’ (2001) 35 Journal of World Trade 449; Researchers based at New York University have been proposing the adoption of International Food Security Treaty, as can be found at <http://www.treaty.org/MainFrame3.html> at 14 September 2009.
^[13] See, eg, David P Fidler and Lawrence O Gostin, Biosecurity in the Global Age: Biological Weapons, Public Health, and the Rule of Law (2008); Mark Wheelis and Malcolm Dando, ‘Neurobiology: A Case Study of the Imminent Militarization of Biology’ (2005) 87 International Review of the Red Cross 553.
^[14] See, eg, David P Fidler, ‘From International Sanitary Conventions to Global Health Security: The New International Health Regulations’ (2005) 4 Chinese Journal of International Law 325.
^[15] See, eg, Shahrbanou Tadjbakhsh and Anuradha M Chenoy, Human Security: Concepts and Implications (2007); Gerd Oberleitner, ‘Human Security: A Challenge to International Law?’ (2005) 11 Global Governance 185; Richard Falk, ‘Pursuing the Quest for Human Security’ in Majid Tehranian (ed), Worlds Apart: Human Security and Global Governance (1999) 1.
^[16] Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, UN Doc A/59/565 (2004), 25. For discussion, see, Gershon Shafir, ‘Legal and Institutional Responses to Contemporary Global Threats: An Introduction to the U.N. Secretary-General’s High-Level Panel Report on Threats, Challenges and Change’ (2007) 38 California Western International Law Journal 1, 6-14.
^[17] Kofi A Annan, In Larger Freedom: Towards Development, Security and Human Rights for All (2005) [78].
^[18] See, eg, Natalie Klein, Joanna Mossop, and Donald Rothwell (eds), Maritime Security: International Law and Policy Perspectives from Australia and New Zealand (2009).
^[19] See, eg, Michael Bourbonnière and Ricky J Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ (2007) 18 European Journal of International Law 873.
^[20] A Google search of this term reveals approximately 82,100,000 hits (16 September 2009).
^[21] A Google search of this term reveals approximately 1,780,000 hits; whilst ‘Arctic security’ reveals 9,960,000 hits (16 September 2009), highlighting the attention which since the start of the Cold War has been given to Arctic security; for a contemporary assessment of polar security issues see Gunhild Hoogensen, ‘Security at the Poles: The Arctic and Antarctic’ in Hans Günter Brauch et al (eds), Facing Global Environmental Change: Environmental, Human, Energy, Food, Health and Water Security Concepts (2009) 951-960.
^[22] See, eg, Richard H Ullman, ‘Redefining Security’ (1983) 8(1) International Security 129; Jessica Tuchman Mathews, ‘Redefining Security’ (1989) 68(2) Foreign Affairs 162.
^[23] Jeremy Waldron, ‘Safety and Security’ (2006) 85 Nebraska Law Review 454, 455-461; David A Baldwin, ‘The Concept of Security’ (1997) 23 Review of International Studies 5-26; Barry Buzan, People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era (2nd edn, 1991) 3-11.
^[24] See, eg, Thomas Homer-Dixon, ‘On the Threshold: Environmental Change as Causes of Acute Conflict’ (1991) 16(2) International Security 76; Daniel Deudney, ‘The Case Against Linking Environmental Degradation and National Security’ (1990) 19(3) Millennium 46.
^[25] United Nations Development Programme, Human Development Report (1994) 22-40.
^[26] See, eg, 2005 World Summit Outcome, UN Doc A/RES/60/1 (2005) [143]; Final Report of the Commission on Human Security (2003) available at <http://www.humansecurity-chs.org/finalreport/index.html> at 8 September 2009.
^[27] See generally, Cass R Sunstein, Laws of Fear: Beyond the Precautionary Principle (2005); Ulrich Beck, World Risk Society (1999).
^[28] See, David P Fidler, ‘Governing Catastrophes: Security, Health and Humanitarian Assistance’ (2007) 89 International Review of the Red Cross 247, 257-259.
^[29] Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945).
^[30] Provisional Verbatim Record of the Three Thousand and Forty Sixth Meeting, UN SCOR, 47th sess, 3046th mtg, 143, UN Doc S/PV.3046 (1992).
^[31] Inger Österdahl, ‘The Exception As the Rule: Lawmaking on Force and Human Rights by the UN Security Council’ (2005) 10 Journal of Conflict & Security Law 1.
^[32] UN SCOR, 62nd year, 5663rd mtg, UN Doc S/PV.5663 (2007).
^[33] See, Rebecca Barber, ‘The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study’ (2009) 14 Journal of Conflict & Security Law 3.
^[34] Mahbub ul-Haq, ‘Global Governance for Human Security’ in Majid Tehranian (ed), Worlds Apart: Human Security and Global Governance (1999) 79, 88-94.
^[35] Claire Breen, ‘The Necessity of a Role for the ECOSOC in the Maintenance of International Peace and Security’ (2007) 12 Journal of Conflict & Security Law 261.
^[36] Hitoshi Nasu, ‘Operationalizing the “Responsibility to Protect” and Conflict Prevention: Dilemmas of Civilian Protection in Armed Conflict’ (2009) 14 Journal of Conflict & Security Law 209.
^[37] See generally, eg, Christian J Tams, ‘The Use of Force against Terrorists’ (2009) 20 European Journal of International Law 359; Kimberley N Trapp, ‘Back to Basics: Necessity, Proportionality, and the Right of Self-Defence against Non-State Terrorist Actors’ (2007) 56 International and Comparative Law Quarterly 141; Jack Beard, ‘America’s New War on Terror: The Case for Self-Defense under International Law’ (2002) 25 Harvard Journal of Law and Public Policy 559, 580-582.
^[38] See generally, Ilias Bantekas and Susan Nash, International Criminal Law (2nd ed, 2003) 154-155; Ignaz Seidl-Hohenveldern, International Economic Law (3rd revised ed, 1999) 63-64; Iain Cameron, Protective Principle of International Criminal Jurisdiction (1994).
^[39] Barry Buzan, Ole Wæver, and Jaap de Wilde, Security: A New Framework for Analysis (1998) 4.
^[40] Cf Kristian Ǻtland, ‘Mikhail Gorbachev, the Murmansk Initiative, and the Desecuritization of Interstate Relations in the Arctic’ (2008) 43 Cooperation and Conflict 289.
^[41] See, eg, Mark Drumble, ‘Terrorist Crime, Taliban Guilt, Western Victims and International Law’ (2003) 31 Denver Journal of International Law and Policy 1; Fleur Johns, ‘Guantanamo Bay and the Annihilation of the Exception’ (2005) 16 European Journal of International Law 613.
^[42] See generally, Dora Kostakopoulou, ‘How to Do Things with Security Post 9/11’ (2008) 28 Oxford Journal of Legal Studies 317-342; Miriam Gani and Penelope Matthew (eds), Fresh Perspectives on the ‘War on Terror’ (2008).
^[43] See generally, Alice Edwards, ‘Human Security and the Rights of Refugees: Transcending Territorial and Disciplinary Borders’ (2009) 30 Michigan Journal of International Law 763; Gregor Noll, ‘Securitizing Sovereignty? States, Refugees and the Regionalization of International Law’ in Edward Newman and Joanne van Selm (eds), Refugees and Forced Displacement: International Security, Human Vulnerability, and the State (2003) 277; B S Chimni, ‘Globalization, Humanitarianism and the Erosion of Refugee Protection’ (2000) 13 Journal of Refugee Studies 243.
^[44] Mary Crock, Ben Saul, and Azadeh Dastyari, Future Seeker II: Refugees and Irregular Migration in Australia (2006) 115-125.
^[45] See, Summary of the General Assembly Thematic Debate on Human Security, 22 May 2008, [7], available at <http://www.un.org/ga/president/62/ThematicDebates/humansecurity/
summary.pdf> at 14 September 2009.
^[46] See generally, Simon Chesterman, ‘An International Rule of Law?’ (2008) 56 American Journal of Comparative Law 101.
^[47] Ruti G Teitel, ‘Humanity’s Law: Rule of Law for the New Global Politics’ (2002) 35 Cornell International Law Journal 355, 387.
^[48] See, Priyankar Upadhyaya, ‘Human Security, Humanitarian Intervention, and Third World Concerns’ (2004) 33 Denver Journal of International Law and Policy 71, 86-89.
^[49] UN GAOR, 63rd sess, 98th-101st mtgs, UN Doc A/PV.98-101 (24-28 July 2009).
^[50] This could not only encompass a terrorist incident on the continent (seemingly a remote likelihood), but more probably a terrorist act committed against a vessel (either tourist, fishing, or governmental) within the Southern Ocean.
^[51] France and the United Kingdom are claimant States; the Russian Federation and the US have major scientific bases on the continent and are original parties to the Antarctic Treaty, while China (PRC) is an ATCP and has a significant scientific research program in Antarctica.
^[52] See UN Security Council Resolutions 502 (1982) and 505 (1982), and see generally Lawrence Freedman, The Official History of the Falklands Campaign, Vol II : War and Diplomacy (2007).
^[53] Antarctic Treaty, art I.
^[54] Antarctic Treaty, art XI.
^[55] See Robert D Kaplan, ‘Center Stage for the Twenty-first Century: Power Plays in the Indian Ocean’ (2009) 88 (2) Foreign Affairs 16.
^[56] Klaus Dodds and Alan D Hemmings, ‘The United States 2002 Unified Command Plan: Antarctica and the Areas of Responsibility of Military Commanders’ (2008) 44 Polar Record 173, 173.
^[57] Caution needs to be exercised when suggesting that traditional ‘national security’ exists in Antarctica and the Southern Ocean because none of the claimant States assert the existence of a ‘homeland’ or principal metropolitan State in Antarctica. With the exception of Argentina and Chile, the remaining five continental claimant States consider their Antarctic possessions to effectively be ‘overseas’ or ‘external’ possessions or territories; ie. New Zealand refers to the ‘Ross Dependency’ in the context of the New Zealand claimed area.
^[58] Those being Argentina, Australia, Chile, France, New Zealand, Norway, United Kingdom.
^[59] Because of South Africa’s claim to the Prince Edward Islands.
^[60] See discussion in Shirley V Scott, ‘Universalism and Title to Territory in Antarctica’ (1997) 66 Nordic Journal of International Law 33, 43-46; and Maŕia Luisa Carvallo and Paulina Julio, ‘Implementation of the Antarctic Environmental Protocol by Chile: History. Legislation and Practice’ in Davor Vidas (ed), Implementing the Environmental Protection Regime for the Antarctic (2000) 337, 337-338.
^[61] See eg. Alan D. Hemmings and Tim Stephens, ‘Australia’s Extended Continental Shelf: What Implications for Antarctica?’ (2009) 20 Public Law Review 9; Rosemary Rayfuse, ‘Melting Moments: The Future of Polar Oceans Governance in a Warming World’ (2007) 16 Review of European Community and International Environmental Law 196, 208.
^[62] For a discussion of the Australian position see Donald R Rothwell and Shirley V Scott, ‘Flexing Australian Sovereignty in Antarctica: Pushing Antarctic Treaty Limits in the National Interest?’ in Lorne K Kriwoken, Julia Jabour and Alan D Hemmings (eds), Looking South: Australia’s Antarctic agenda (2007) 7.
^[63] The sensitivity associated with the ‘protection’ of Antarctic sovereignty, however that may be expressed, was particularly highlighted for Australia during the 1990s and early 2000s in response to illegal, unregulated and unreported (IUU) fishing off its sub-Antarctic possessions of Heard and McDonald Islands: see Sam Bateman and Donald R Rothwell (eds), Southern Ocean Fishing: Policy Challenges for Australia (1998); Rachel Baird, ‘Coastal State Fisheries Management: A Review of Australian Enforcement Action in the Heard and McDonald Islands Australian Fishing Zone’ [2004] DeakinLawRw 4; (2004) 9 Deakin Law Review 91.
^[64] Christopher C Joyner and Ethel R Theis, Eagle over the Ice: The U.S. in the Antarctic (1997) 1. Here it needs to be recalled that Antarctic Treaty, art IV (1)(b) makes clear that nothing in the Treaty represents ‘a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica...’.
^[65] In this context it is important to recall that under the Treaty of Peace with Japan opened for signature 8 September 1951, 136 UNTS 45 (entered into force 28 April 1952), art 2(e), Japan renounced any right of title to or interest in the Antarctic area.
^[66] Convention on the Regulation of Antarctic Mineral Resource Activities, adopted 2 June 1988 and opened for signature until 25 November 1989, 27 ILM 868 (not in force). For some discussion see Christopher C Joyner, ‘The effectiveness of CRAMRA’ in Olav Schram Stokke and Davor Vidas (eds), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (1996) 152.
^[67] See the discussion in Richard Woolcott, The Hot Seat: Reflections on Diplomacy from Stalin’s Death to the Bali Bombings (2003) 211.
^[68] See Duncan French, ‘Global Principles, Universal Values and Regional Contexts: Law and the Application of Notions of Justice and Sustainability in Antarctica’ [2008] NZYbkIntLaw 19; (2008) 6 New Zealand Yearbook of International Law 63.
^[69] See discussion of this point in Julia Jabour and Marcus Haward, ‘Antarctic Science, Politics and IPY Legacies’ in Jessica M. Shadian and Monica Tennberg (eds), Legacies and Change in Polar Sciences: Historical, Legal and Political Reflections on the International Polar Year (2009) 101.
^[70] For example, the U.S. Antarctic Program uses Christchurch as its operations base for an air link between New Zealand and the U.S. Antarctic base at McMurdo.
^[71] Joyner and Theis, above n 65, 152.
^[72] See discussion in Alan Hemmings, ‘Regime Overlap in the Southern Ocean: The Case of Southern Blue Fin Tuna and CCSBT in the CCAMLR Area’ [2006] NZYbkIntLaw 11; (2006) 3 New Zealand Year Book of International Law 207; Donald R Rothwell, ‘A Maritime Analysis of Conflicting International Law Regimes in Antarctica and the Southern Ocean’ [1994] AUYrBkIntLaw 5; (1994) 15 Australian Yearbook of International Law 155.
^[73] Maritime security issues in the Southern Ocean are generally discussed throughout Klein, Mossop, and Rothwell, above n 19.
^[74] The issues associated with the making of these claims, their consistency with international law, and enforcement, are discussed in the papers collected in Alex G Oude Elferink and Donald R Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001).
^[75] See 2003 Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, opened for signature 24 November 2003, [2005] ATS 6,(entered into force 1 February 2005); 2007 Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands, opened for signature 8 January 2007, [2007] ATNIF 1 (not yet in force); and discussion in Warwick Gullett and Clive Schofield, ‘Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean’ (2007) 22 International Journal of Marine and Coastal Law 545.
^[76] See E J Molenaar, ‘Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean: the Pursuits of the Viarsa 1 and the South Tomi’ (2004) 19 International Journal of Marine and Coastal Law 19.
^[77] Rayfuse, above n 62, 210-211.
^[78] Maritime New Zealand ‘French Yacht Crew Rescue’, Media Release (18 February 2008), <http://www.maritimenz.govt.nz/news/media-releases-2008/20080218a.asp> at 24 November 2009.
^[79] In February 2007, following a fire aboard the Japanese whaling vessel Nisshin Maru, the then New Zealand Prime Minister expressed concern over the safety of life at sea, potential marine environmental risk arising from the incident and New Zealand’s search and rescue obligations in that part of the Ross Sea: ‘Japan Implored to Move Damaged Whaler Before Fuel Spills’ Environmental News Service, 19 February 2007 at <www.ens-newswire.com/ens/feb2007/
2007-02-19-05.asp> at 24 November 2009; see also Joanna Mossop. ‘Law of the Sea and Fisheries’ (2007-2008) 5 New Zealand Year Book of International Law 217, 219.
^[80] The M/V Explorer sank near King George Island in the South Shetland Islands on 22 November with all 154 passengers and crew rescued: ‘Antarctic cruise liner hits iceberg, 150 rescued’, Agence France Press (Paris), 24 November 2007.
^[81] For a New Zealand perspective see, New Zealand, Maritime Search and Rescue Incidents in the Antarctic Treaty Area: the Role of Rescue Coordination Centres (WP 20) (2008) submitted at the XXXI ATCM (Kyiv, 2 – 13 June 2008) <http://www.ats.aq/documents/ATCM31/wp/
ATCM31_wp020_e.doc> at 24 November 2009.
^[82] Some of these issues are highlighted in Julia Jabour, ‘Underneath the Radar: Emergency Search and Rescue Insurance for East Antarctic Tourism’ (2007) 4 Tourism in Marine Environments 203.
^[83] See Duncan French, ‘Sustainable Development and the 1991 Madrid Protocol to the 1959 Antarctic Treaty: The Primacy of Protection in a Particularly Sensitive Environment’ (1999) 2 Journal of International Wildlife Law and Policy 291.
^[84] 1964 Agreed Measures for the Conservation of Antarctic Fauna and Flora, Recommendation III –VIII adopted at ATCM III (1964) reprinted in W.M. Bush, Antarctica and International Law: A Collection of Inter-State Documents, vol I (1982) 146-169.
^[85] Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, 1080 UNTS 175 (entered into force 11 March 1978).
^[86] Madrid Protocol, art 2.
^[87] This is also reflected in the position taken by some of the claimant States; New Zealand for example in March 2006 adopted a ‘Ross Sea Strategy’ designed to facilitate the future management of marine living resources and biodiversity in the Ross Sea: Trevor Hughes, ‘CCAMLR in the Antarctic Treaty System: New Zealand’s Initiative at ATCM XXIX’ [2007] NZYbkIntLaw 17; (2007) 4 New Zealand Yearbook of International Law 305, 305.
^[88] It is arguable that this is perhaps an inevitable consequence of the provisions of the Madrid Protocol with its requirement of the conduct of environmental impact assessment so that virtually ‘every’ activity associated with Antarctica has an environmental dimension which becomes predominant; see Madrid Protocol, art 8 and generally the papers reproduced in Davor Vidas (ed), Implementing the Environmental Protection Regime for the Antarctic (2000).
^[89] See the collection of papers in Knowles R Kerry and Martin J Riddle (eds), Health of Antarctic wildlife: A Challenge for Science and Policy (Springer, 2009).
^[90] International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 74 (entered into force 10 November 1948).
^[91] See, eg, Shane McLeod, ‘Sea Shepherd, Whaling Ship Collide’ ABC News, 6 February 2009, <www.abc.net.au/news/stories/2009/02/06/2484748.htm> at 24 November 2009. For a review of some of the recent Southern Ocean clashes between protestors and the Japanese whaling fleet in the Southern Ocean see Andrew Darby, Harpoon: Into the Heart of Whaling (2007) 230-239.
^[92] Stephen Smith and Peter Garrett, ‘Australia Acts to Stop Whaling’ (Australian Government – Joint Media Release, 19 December 2007) <www.foreignminister.gov.au/releases/2007/fa-s002_07.html> at 24 November 2009. The matter has been considered by Australian courts; see Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2008] FCA 3; see also the discussion in Joanna Mossop, ‘When is a Whale Sanctuary not a Whale Sanctuary? Japanese Whaling in Australian Antarctic Maritime Zones’ (2005) 36 Victoria University of Wellington Law Review 757.
^[93] See the most recent observations of the Intergovernmental Panel on Climate Change in 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) 653-685.
^[94] Though as Kellow has noted it has been a basis upon which expansion of the Antarctic research program has been justified for some States: Aynsley Kellow, ‘A Caution on the Benefits of Research: Australia. Antarctica and Climate Change’ in Lorne K Kriwoken, Julia Jabour and Alan D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (2007) 165.
^[95] Duncan French and Karen Scott, ‘International Legal Implications of Climate Change for the Polar Regions: “Too Much, Too Little, Too Late”’ [2009] MelbJlIntLaw 33; (2009) 10 Melbourne Journal of International Law 631.
^[96] See generally Jeffrey Loan, ‘The Common Heritage of Mankind in Antarctica: An Analysis in Light of the Threats posed by Climate Change’ [2004] NZYbkIntLaw 9; (2004) 1 New Zealand Yearbook of International Law 149.
^[97] Joyner and Theis, argued in 1997 that ‘geostrategic interests in the Antarctic have evolved into a complex blend of environmental, resource, and security concerns’: Joyner and Theis, above n 65, 133.
^[98] Rothwell, above n 7, 306-314; and more generally Stuart B Kaye, International Fisheries Management (2000) 355-442.
^[99] See Marcus Haward, ‘IUU Fishing: Contemporary Practice’ in Alex G Oude Elferink and Donald R Rothwell (eds), Oceans Management in the 21st Century: Institutional Frameworks and Responses (2004) 87, 95-97.
^[100] See Gail L Lugten, ‘Net Gain or Net Loss? Australia and Southern Ocean Fishing’ in Lorne K Kriwoken, Julia Jabour and Alan D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (2007) 100.
^[101] See discussion in Sanjay Chaturvedi, ‘Biological Prospecting in the Southern Polar Region: Science-Geopolitics Interface’ in Jessica M Shadian and Monica Tennberg (eds), Legacies and Change in Polar Sciences (2009) 171-188; and see also the papers collected in Alan D Hemmings and Michelle Rogan-Finnemore (eds), Antarctic Bioprospecting (2005).
^[102] Christopher C Joyner, ‘The effectiveness of CRAMRA’ in Olav Schram Stokke and Davor Vidas (eds), Governing the Antarctic: The Effectiveness and Legitimacy of the Antarctic Treaty System (1996) 152, 158-161.
^[103] Ibid, 164 noting that ‘Establishment of a multinational minerals regime was perceived by some as undermining the legal validity of Australia’s claim to sovereign title to the continent.’
^[104] See B S Geon, ‘A Right to Ice? The Application of the International and National Water Laws to the Acquisition of Iceberg Rights’ (1997) 19 Michigan Journal of International Law 277.
^[105] Joyner and Theis, above n 65, 145.