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Hemmings, Alan D --- "Beyond Claims: Towards a Non-Territorial Antarctic Security Prism for Australia and New Zealand" [2008] NZYbkIntLaw 20; (2008) 6 New Zealand Yearbook of International Law 77

Last Updated: 7 February 2019


Alan D. Hemmings[†]


This year, 2009, has seen the 50th anniversary of the adoption of the Antarctic Treaty in Washington D.C.[1] At the Thirty-Second Antarctic Treaty Consultative Meeting,[2] and in numerous statements and events in member states, much has been made of the manifest success of the Treaty and the broader Antarctic Treaty System (ATS) subsequently developed from it.[3] It is of course entirely reasonable to celebrate a dispensation that has endured for half a century, and which continues to provide the structure for a peaceful and largely cooperative approach to not only activity there but a still novel form of international governance. Few other places have had as benign a 50 years as Antarctica.
However, this does not mean that one has to suspend all critical faculties. There are some reasonable bases for concern about the future viability of the ATS. Its institutional development seems to have come to a halt, and its core assumptions are facing something of a challenge from the present dominant ideology of globalism.[4] Activity in and around Antarctica is diversifying and accelerating, the players are broadening, and the region’s isolation has ended.[5] Objectively, Antarctica may present a more complex field for management now than in the past, notwithstanding the disappearance of some past problems such as the Cold War. Critically, in my view, the past few years have seen the conjunction of two historically problematical Antarctic issues: territorial sovereignty and resources. This has been evident in several contexts, including whaling, fishing, and tourism, but perhaps most particularly in relation to the extended continental shelf.[6] Whilst resources were of course not explicitly considered in the Antarctic Treaty but left to subsequent ATS instruments, territorial sovereignty (however viewed by the key states) was a prime factor in the diplomatic process that led to the Treaty, and Article IV which addressed it has been seen as just about the most important single element, and something of a master-class in legal drafting.
But is Article IV it, the final word on Antarctic territorial sovereignty claims? Instead of a wise and innovative, but essentially interim, mechanism to bridge the transition into a new internationalised Antarctic future in the late 1950s, has the mechanism in fact entrenched and fortified essentially colonial attitudes long abandoned elsewhere? Are we to accept as a fait accompli the accommodation on territorial sovereignty reached 50 years ago? If so, is it supposed that Article IV will suffice for the next 50 years too? Is this sensible, even for the claimant states, let alone acceptable to the wider international community, a community of states and international institutions that looks very different today than in 1959?
A state whose Antarctic engagement is set in the context of it being a territorial claimant seems likely to “see” the Antarctic in a different way to a state that engages with it as a global commons or the subject of a de facto international condominium. With territoriality so central to the sense of identity and entitlement of states, might the casting of areas of Antarctica as part of the state’s metropolitan territory, or some variant of dependency, risk the characterisation of challenges there in the same way (even if dampened by the geopolitical realities) that they would be characterised “at home”, i.e. as fundamentally national security challenges to the territory of that state – hence the “prism” of this article’s title? If the Antarctic security discourse is indeed to get beyond the traditional and narrow, territorial sovereignty claims warrant attention, not only in terms of their direct viability and desirability but in light of their implications for other security foci in the area.[7]
This paper poses some preliminary thoughts on these matters, on the continuing viability and feasibility of territorial sovereignty as a basis for national engagement in Antarctica, and on sovereignty as a central pillar of the multilateral system of governance there. It focuses upon just two of the seven Antarctic claimants, New Zealand and Australia, as the first stage in a broader consideration.


Seven states claim Antarctic territory,[8] three of these claims substantially overlap and are mutually contested,[9] and five claimants recognise each others’ claims;[10] Russia and the United States dispute all the claims but reserve a basis to claim themselves and not one of the other 19 Antarctic Treaty Consultative Parties (ATCPs) recognises any territorial claim. Indeed, a number of ATCPs have recently and publicly reiterated their non-recognition of Antarctic territorial claims in relation to submissions by claimants to the Commission on the Limits of the Continental Shelf (CLCS) under Article 76 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).[11] If there are other states which recognise any or all of the claims, they have so far not publicly declared themselves.
Thus in a world with currently 192 UN member states, one would have to say that claims to territorial sovereignty in Antarctica have only slight support, and that solely from within the small group of fellow claimants. There are no intimations that this situation is likely to change in the foreseeable future. This surely poses a rather stark policy reality check on a mode of Antarctic engagement predicated on assumptions of territorial sovereignty, howsoever finessed. Given this reality, there seems some merit in beginning to think through some alternatives in advance of ‘strategic surprise’[12]
In the negotiation of what became the Antarctic Treaty, it was plain that some sort of accommodation between the seven claimants, the two semi-claimants (Russia and the US), and the remaining three foundation member states (Belgium, Japan, South Africa) around territorial sovereignty questions was necessary. From this need arose Article IV. The twelve original signatories, with claimants forming the majority, adopted the Antarctic Treaty and brought it into force just as decolonisation was beginning elsewhere.[13]
The “Territorial Antarctic Security Prism”, as conceived here, is a complex of assumptions based upon the state’s assertion, and apparent belief in the reality, of its Antarctic territorial claim, the characterisation of that claim as a legitimate basis for particular (whether absolute or instrumental) and preclusive rights accruing to that state, and the use of the existing international system (including the ATS) to safeguard or shelter the claim. The bases for this prism occur at multiple levels: at a formal level in the established constitution, laws and high strategy and policies of the claimant state; at an operational level in the practice of activities and foci of attention in the area (e.g. science policy, infrastructure and logistics networks) and the rhetoric of politicians and officials; and in public discourse in civil society, the media, and inter alia academic discourse and artistic framing.
The historical roots of the particular territorial claims need not here detain us. For New Zealand, the claim to what it calls the Ross Dependency dates from 1923;[14] for Australia the claim to what it calls the Australian Antarctic Territory dates from 1933.[15] Neither state had their first permanent stations in place until much later: 1954 for Australia,[16] and 1957 for New Zealand.[17] What does the territorial claim of New Zealand and Australia mean today, in the context of the Antarctic Treaty, its Article IV, the subsequent development of the ATS, and the conduct of activities within the Antarctic Treaty Area?


Whilst the thrust of this paper is clearly a critique of the propriety and utility of territorial claims in the Antarctic of the 21st Century, Lord Acton’s argument for making a strong case for views he rejected is a useful discipline.[18] What might be the advantages here? First, that the fact of Antarctica being the subject to claims raised the politics of international engagement there to a higher level than might otherwise have been the case. Without the claimants, who would have made the decisions in the late 1950s about future Antarctic arrangements? As it was there were just 12 states formally involved; without the status of territorial claimant, it is at least debatable whether even this number of states would have been in the frame. Substantively then, it may be argued that claimants ensured that the regime that evolved had some depth and nuance, and was more than a crude Cold-War creature. Perhaps more substantively, particularly for the states concerned, the fact of being a claimant has almost certainly locked-in a level of Antarctic engagement that some of these states would not have countenanced otherwise. Despite their relative geographical proximity, would Argentina, Chile and New Zealand (and perhaps Australia and Norway too) have engaged in the Antarctic at the level they have otherwise? Indeed, without this carrot, would the austerity afflicted United Kingdom and France of the 1950s have been so engaged? The very sensitivities that made it difficult but necessary to operationally set sovereignty to the side, resulted in the type of regime (embracing inter alia: free access, consensus decision-making, and the encouragement and entrenchment of science and scientific cooperation as “safe” common ground) that could subsequently create the space to reach accommodations on other complex issues, such as resources and the environment. Further, the peculiarities of the Antarctic situation, and its particular legal regime, has made this part of the world intrinsically less amenable to incorporation into a UN model or system, a situation that today appears attractive to more than just those claimant states. The fact that Antarctica had no indigenous inhabitants, that it was acquired by its claimants without the dispossession of others in situ, has been and remains an argument for disputing colonisation analogues. And as an entirely personal and subjective observation, New Zealand and Australia have been (aside the question of sovereignty) amongst the most progressive and liberal participants in, and developers of, the ATS.


The difficulties are that the past need not be an appropriate guide to the future. Having achieved the ATS, the particular privileges of original signatories, and the now considerable consequential benefits of multilateral engagement, what particular benefits are seen to attach to being a claimant? This is not a question about the continuing rationale for Antarctic engagement; that case appears strong. It is a question about the necessary context in which that Antarctic engagement occurs. The difficulties with a continued reliance on territorial claims as the sheet anchor can be summarised as:

A. Political Strategy

If most states do not recognise the claims to Antarctica, there is little prospect that any of the claimant states will ever in fact acquire the prerogatives of territorial sovereignty over their part of Antarctica. In absolute terms, the “Ross Dependency” and the “Australian Antarctic Territory” are fictions beyond the citizens and residents of New Zealand and Australia who plainly are within the reach of their domestic legal systems. The citizens of other states are, whatever the claimants’ beliefs about the generic application of their legislation across the territories, essentially beyond reach. Imagine if you will, the likelihood of Australia or New Zealand actually arresting a US citizen in their claimed areas on the grounds of a breach of their domestic legislation.
In a future where a constellation of great powers, or global circumstances congeal around particular futures for these areas of Antarctica, the relevant claimant states seem unlikely to be in possession of the sort of power that one would normally associate with sovereign territory. To build one’s standing around a fiction seems inherently risky. However, if these sorts of realities are considered at all by key decision-makers in New Zealand and Australia – and they may not be – one imagines that any overt reflection on this, by way of public statement, may be seen by them as likely to weaken both the public projection and the underlying political strength of the territorial claim.
This leaves us with the instrumental value argument that claims, whilst not finally realisable, deliver benefits up to the point where it is revealed that they are unrealisable. But what exactly are these contingent benefits? There has been one ATS instrument wherein claimants seem to acquire particular standing as claimants; the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA),[19] which is not in force nor is expected to enter into force.[20] In CRAMRA, the 10 member Regulatory Committees established for each area identified for mineral resource activities were to include any members ‘which assert rights or claims in the identified area’; and the two members ‘which assert a basis of claim’ (viz: the Soviet Union/Russia and the United States).[21] This is, one supposes, the sort of benefit that claimants might point to. Frankly, it looks fairly limited, quite aside from the failure of this particular instrument. The only ATS instrument developed subsequent to CRAMRA is the 1991 Protocol on Environmental Protection to the Antarctic Treaty, which appears to offer no specific benefits to claimants.[22] The ATS shows no present inclination to address any other issue through the development of a new instrument. This does not rule out the possibility that some future ATS instrument might (like CRAMRA) offer particular benefits for claimants, but there is no obvious sign of any such development at this point. A much more substantive benefit in any case attaches to the consensus decision-making used throughout the ATS, and this is not restricted to claimants.
As suggested above, once one sees oneself as a territorial sovereign, that self-assumed status predisposes the state in question to view the claim as the basis for particular and preclusive rights in the area. Challenges to the claim and the assumed rights and prerogatives of sovereignty are invariably seen as significant, and become national security issues. In Antarctica, this may well be at a lower level than for that state’s metropolitan territory, but it is just a matter of degree. Challenges therefore potentially invoke what are seen as appropriate responses across the soft-power – diplomatic – economic – military spectrum. In states such as New Zealand or Australia, the mobilisation of arguments and responses is no longer solely in the hands of the state, although the state remains the most significant actor. One has only to review recent media attention given to Japanese whaling to see that New Zealand and (particularly) Australia have been hoist by their own petard in relation to appropriate responses to whaling in “our” waters. The very different responses to whaling by Humane Society International (HSI) in the Australian Federal Court,[23] and Sea Shepherd in Antarctic waters have each sought to build on Australian claims to sovereignty over the Australian Antarctic Territory.[24] At the extreme, the existence of a sense of territorial entitlement may give rise to an unhelpful nationalism in relation to Antarctic affairs.
In terms of the claimant state itself, one may identify specific problems posed by its claimant stance. To canvass merely the most obvious here: Whilst one may argue positives in relation to encouraging Antarctic engagement by that state, which it can be argued generates benefits not only for that state but the broader international system concerned with Antarctica, one is in a sense stuck with riding the tiger. Maintaining a claim entails expensive commitment and ongoing demonstration of one’s claim, and the political risks that may be attendant upon these acts. So, whilst a number of ATCPs have been concerned about problematical issues such as Illegal, Unreported and Unregulated (IUU) fishing in Antarctic waters, the states which have actually conducted the surveillance and interdiction operations have been the claimants and, with the addition of South Africa, the coastal states for the subantarctic islands in or near the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) area.[25] The most active state within the Antarctic Treaty Area has been New Zealand, which in 1999 deployed HMNZS Te Kaha to the Ross Sea, and has regularly used its P-3K Orion maritime patrol aircraft for IUU surveillance there. Recent media reports suggest that the New Zealand Defence Force is developing an interest in unmanned aircraft ‘which have the range to conduct surveillance on the Southern Ocean around Antarctica’ and elsewhere.[26] The issue is not whether these operations are useful, but whether, in the absence of a New Zealand claim to the Ross Dependency, such challenging and expensive operations would be likely to take place. This also raises interesting questions around the ‘securitization’ of New Zealand’s engagement with Antarctica and the discourse now largely associated with the Copenhagen School.[27]
In the course of the Humane Society International v Kyodo Senpaku Kaisha Ltd case noted above, the Australian Commonwealth Attorney-General provided the Court with an amicus curiae submission.[28] Aside from the valuable indication of what Australia really sees the international position of its territorial claim to be, Attachment A to the submission provides an ‘Extract from instructions to Australian Antarctic Division Voyage Leaders’. Whilst Australia has not sought to enforce ‘its laws in Antarctica against the nationals of other States which are Parties to the Antarctic Treaty’,[29] Attachment A reveals that:

The voyage leader should advise any vessels involved in whaling activities within Australia’s EEZ that they are whaling within the Australian Whale Sanctuary and in contravention of Australian legislation. They should then be advised that their details have been passed on to the Australian authorities and be asked to leave Australian waters. (emphasis in original)

There is no evidence that these pro forma advisories have had any effect on Japanese whaling.
What the claimant status also appears to do is generate scepticism on the part of other states about the claimant’s real motivation in relation to policy that may in fact have great merit, and/or be essentially unrelated to claimant status. Of course, where the issue does have some connection to the claimant’s interests as claimant, this scepticism may be reasonable. Two cases of apparent negativity on the part of others attaching to positions which appeared, on the face of it, reasonable, can be instanced as examples:
First, the unsuccessful 1999 New Zealand proposal to establish an Antarctic Specially Protected Area around the Balleny Islands archipelago in the northern Ross Sea.[30] One of the reasons for the failure of this proposal was the view taken by some ATCPs (including some who had other reasons for not wishing to see the area designated – such as the concern of some key fishing states that this would create an unfortunate precedent for other area closures) that the proposal was at core a stratagem to bolster New Zealand’s sovereignty interests in the Ross Dependency. Second, the difficulties that surfaced in 2006 between India and a group of Parties led by Australia around the Management Plan for a Larsemann Hills Specially Managed Area, seem in part to have arisen through some concern on India’s part that it was being pressured by Australia to substantially revise its own advanced plans for a new research station nearby for essentially territorial sovereignty reasons.[31] Again, the issue is not whether the concerns were in fact well-founded, but that they arose.

B. Moral and Ethical Defensibility

The international community of states reveals great differences of size, capacity, resources, and other forms of wealth. That a large part of some 10 per cent of the earth’s surface is claimed by just seven states, based upon historical contingencies predating the independent existence of most of the world’s states is an unavoidable ethical issue. A variation on this issue, operationally focussed on the legitimacy of a limited number of ATS states appropriating resources in what others (led by the Group of 77) viewed as an area more properly subject to the common heritage principle, was behind the Question of Antarctica in the United Nations General Assembly in the 1980s and 1990s.[32] It remains a concern for some in even the claimant states.
In the case of New Zealand and Australia, there is an interesting contrast between these states’ generally progressive approach to decolonisation and a multilateralism that is sensitive to the needs of the Global South elsewhere, and their continuing attachment to Antarctic territories in large part acquired through the mechanism of British Imperial policy.[33]

C. Environmental Sustainability

There is a general risk that human activities in the Antarctic Treaty Area are not conducted in an environmentally sustainable manner. Notwithstanding the significant obligations enshrined in ATS instruments, there are gaps in coverage and the perennial issue of compliance with existing obligations exists. The Antarctic is not immune to generically problematical human and state behaviour, and appears particularly vulnerable to some pressures, such as climate change.[34] The question here is whether territorial claims and the behaviour associated with those claims pose particular challenges to sustainability.
There appears to be at least one ground for thinking it might. At the very basis of conceptions of territorial sovereignty – particularly in areas where there is no issue around people – is the right to preclusive access to resources. This, surely, is the matter at the heart of claimants’ enduring interest in Antarctic territory, and is reflected in the particular attention the claimants have given to coastal state rights pursuant to UNCLOS Article 76, their serious attention to marine harvesting issues around CCAMLR, and so on. A claimant may forestall resource development in the Antarctic – this is precisely what Australia did in its opposition to CRAMRA[35] – but generally one might expect that claimants seek to be the prime beneficiaries of resource and other commercial activities in their purported territory.
If this is the case, and demonstrating it is neither simple nor possible here, then maintaining claims may stimulate activity. Whether the activity is then conducted in an environmentally sustainable manner is a second question. For example, New Zealand’s decision to commence fishing for toothfish in the Ross Sea in 1996, which had a political as well as a commercial basis, ushered in marine harvesting in the world’s most remote sea. Other states soon joined in, and whilst generally conducted in compliance with CCAMLR standards, there have been robust critiques of the environmental sustainability of the resulting high latitude fishery in the Ross Sea.[36] Put plainly, might territorial claimants’ inherent interest in realising economic benefits from “their” Antarctic territory prevent decisions being taken collectively by the ATS not to exploit Antarctica, or to exploit it at much lower levels? The argument here is not that there is anything inherently greedy about the claimant states, but that a structural consequence of their operating as claimants is a greater likelihood of a decision in favour of exploitation.


To critique the “Territorial Antarctic Security Prism” is implicitly to raise the subject of alternative prisms, and what these might be. To do so is a substantial project. Evaluating which amongst these may be better or worse options in turn raises the question: ‘better or worse for whom?’, the canvassing of which raises an obligation to consider the pros and cons across a range of interests and scenarios. Given these requirements for a substantive treatment of alternative prisms, no more than a preliminary canvassing can be entertained here. The preliminary options are neither comprehensive nor necessarily mutually exclusive.

A. Deliberative Territorial Antarctic Security Prism

If New Zealand and Australia (or any other claimants) expect to translate the present facsimile of territorial sovereignty in Antarctica into reality, some serious upgrading of their effort in this regard would be required. Whilst the acquisition of a capability to materially improve their prospects of realising a real territorial sovereignty seems, frankly, unlikely, it is obviously a theoretical option. But to canvass, even theoretically, the sort of economic, military, alliance and diplomatic wherewithal necessary to be able to, essentially, impose their sense of sovereignty on other states, or persuade them to acquiesce, is to reinforce the sense of futility of such a project.
There seems little likelihood that any but the most powerful states could seriously entertain attempting this, and none of the present claimants are in that league.

B. Natural Interests

If relative proximity still says something about areas of interest, New Zealand and Australia (and fellow southern hemisphere ATCPs such as Argentina, Chile and South Africa) have vital interests in the area to their near south. Indeed, South Africa (which is not an Antarctic territorial claimant) would seem to have as enduring and legitimate an interest in Antarctica as the claimant states.
The arguments adduced as justifications for territorial sovereignty often appear to be as much about natural interests arising through proximity.[37] Natural interests in Antarctica would ensure that New Zealand and Australia would continue to engage with Antarctica. For both, this region is inherently more critical than (say) the Arctic, whatever global interests they have in the stability of that region too. The question (as touched upon above) is whether without the stimulant of territorial interest per se the level of commitment would remain. Given the objective biophysical significance of the Antarctic, the seamless connections to the metropolitan territory (including their subantarctic territories, which would be unaffected by a change in stance towards Antarctic territory), the traditions of scientific engagement for over a half century and the even longer cultural connections, there is no reason why the level of commitment to Antarctica should change.

C. Conventional International Relations

For claimant states, engagement with the Antarctic is a curious hybrid of foreign relations and domestic administration. Were New Zealand and Australia to move away from their positions as claimants, one might suppose that the Antarctic would become more clearly a matter of foreign affairs rather than a domestic issue – although of course the traditional boundaries between foreign and domestic policy have been significantly eroded in all areas. In this case, it might be expected that the relative attention given Antarctica would ebb and flow as any other foreign policy issue, but, like some other issues, it could well be that proximity and historic associations ensured that it maintained a consistently high profile. There is the possibility that shorn of the territorial imperative, interest in Antarctica would wane. However, this is the prism through which a number of other, non-claimant, ATCPs view the Antarctic, so it is not impossible that former claimants could too.

D. Antarctic Exceptionalism

Whether on environmental or other grounds, it would be theoretically possible, because of the very unusual situation of the region, to view Antarctica in a different manner from other areas, in what one might call a new Antarctic exceptionalism. Under a scenario where there are no Antarctic territorial claims, the area would be in a novel post-Westphalian situation. This is not to say that states would cease to be the primary players in relation to it – although that is a possibility – and indeed a formalised or de facto condominium over the area would constitute merely a new variant on the Westphalian system.
There is no guarantee that this sort of prism (or indeed any other) would offer a benign Antarctic future compared to the present dispensation. The Antarctic exceptionalism could result in the first post-Westphalian and/or post-industrial continent; it could result in massive resource or other use under the successor collective governance arrangement. The argument about values and desired futures would still need to be made.

E. Paradigm Shift

Finally there is what might be termed the paradigm shift prism. This captures some ideas that might arise under several of the other putative prisms, and may be viewed as forms of Antarctic exceptionalism. Theoretical possibilities here include casting Antarctica as World Heritage, whether under a UN or other regime, or other striking decisions that would make Antarctica a quite different place politically and economically from the rest of the planet. Politically, this option offers Antarctica as a place for innovation and bold leadership.
There is plainly great uncertainty about the sort of options that might be possible if Antarctica, and more particularly the claimants, can get beyond claims: really get beyond claims as a matter of deliberate policy; not just trust to the hope that somehow territorial claims will fade from view through a persistence of the ATS. The tentative alternative prisms sketched above purport to do no more than suggest the opening of a debate.


For those not wedded to the idea of a national manifest destiny in Antarctica, the expectation has perhaps been that with time, with the demonstrable success of multilateralism through the Antarctic Treaty System, claims to territorial sovereignty in Antarctica would fade. Like compulsory church-going or the Treaty of Tordesillas, gradually it would fall into disuse. But whilst for the first twenty years after the adoption of the Antarctic Treaty the issue of sovereignty appeared to reduce in profile, with the arrival of the technical capacity to realise various resources, and an economic rationale for doing so, it gained new life.
The most significant stimulus to the sovereignty issue has been the recent flurry of activity around the extended continental shelf off Antarctica, although whaling, fishing, tourism and bioprospecting have all had an impact too. All the indications are that of itself aspirations of territorial sovereignty will not just fade away.
If this is the case, and if one sees difficulties around Antarctic futures where territorial sovereignty is still an active principle; if one sees in fact no prospect of the supposed benefits, but only the negatives in a world now significantly different from the colonial context of the initial claims, then one needs to think about whether and if so how one might move beyond territorial sovereignty in Antarctica.
A debate around the desirability and practicality of Antarctic territorial claims will not be easy. The claims are so entrenched that they now barely gain consideration in the states that make them. They are a given, upon which an entire edifice of domestic law, administrative practice, elite and public stance and framing are based. Even if it is possible to change this situation, it will take time. Some claimants may be more difficult to persuade than others. This paper is a modest contribution to the beginning of a debate that we need to have.

[†] Alan D Hemmings, Adjunct Associate Professor, Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury, New Zealand and Research Associate, Institute of Antarctic and Southern Ocean Studies, University of Tasmania, Hobart, Australia.
This paper develops the presentation under the same title delivered at the Colloquium Responding to Contemporary Challenges and Threats to Antarctic Security: Legal and Policy Perspectives, held at the School of Law, University of Canterbury, 5-7 July 2009. The author extends his appreciation to the convenors of that Colloquium and its sponsors. This paper, whilst still a preliminary consideration of the issues, greatly benefited from the comments in Christchurch by project colleagues and the New Zealand officials from several agencies who participated in the Colloquium. Particular thanks are extended to Karen Scott for helpful comments on the manuscript. The author is solely responsible for the views expressed here.
[1] Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
[2] Final Report of the Thirty-Second Antarctic Treaty Consultative Meeting – Constituent Parts <> at 28 September 2009.
[3] ‘“Antarctic Treaty System” means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in force under those instruments’: Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998), art 1.
[4] A D Hemmings, ‘From the New Geopolitics of Resources to Nanotechnology: Emerging Challenges of Globalism in Antarctica’ (2009) 1 Yearbook of Polar Law 55.
[5] A D Hemmings, ‘Globalisation’s Cold Genius and the Ending of Antarctic Isolation’, in L.K. Kriwoken, J Jabour and A D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (2007), 176.
[6] In relation to the extended continental shelf, see Alan D Hemmings and Tim Stephens, ‘Reconciling Regional and Global Dispensations: The Implications of Subantarctic Extended Continental Shelf Penetration of the Antarctic Treaty Area’ [2008] NZYbkIntLaw 30; (2008) 6 New Zealand Yearbook of International Law 273.
[7] Donald R Rothwell and Hitoshi Nasu, ‘Antarctica and International Security Discourse: A Primer’ [2008] NZYbkIntLaw 17; (2008) 6 New Zealand Yearbook of International Law 3.
[8] Argentina, Australia, Chile, France, New Zealand, Norway, United Kingdom.
[9] Argentina, Chile, United Kingdom.
[10] Australia, France, New Zealand, Norway, United Kingdom.
[11] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). State responses to submissions to the Continental Shelf Commission are available online at <
commission_submissions.htm> at 26 October 2009.
[12] See C F Parker and E K Stern, ‘Bolt from the Blue or Avoidable Failure? Revisiting September 11 and the Origins of Strategic Surprise’ (2005) 1 Foreign Policy Analysis 301 and A J Levite, Intelligence and Strategic Surprise (1987). Although the term is conventionally attached to major military attacks, there seems no reason why a correspondingly significant shift in the security environment could not arise through a sudden crisis in relation to Antarctic territory, given the centrality of this matter in the ATS.
[13] In 1958 there were 82 UN Member States; by 1960 this had increased to 99. Significant differences in approach are evident between Antarctica and conventional colonial territories elsewhere - where of course in the inhabited areas the issue was given particular force by the concept of self-determination and human rights, concepts not readily applicable in the historically unpopulated Antarctic.
[14] See M Templeton, A Wise Adventure: New Zealand and Antarctica 1920-1960 (2000).
[15] See: D R Rothwell and S V Scott, ‘Flexing Australian Sovereignty in Antarctica: Pushing Antarctic Treaty Limits in the National Interest?’ in L K Kriwoken, J Jabour and A D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (2007), 7.
[16] K Dodds and A D Hemmings, ‘Frontier Vigilantism? Australia and Contemporary Representations of Australian Antarctic Territory’, (2009) 55 Australian Journal of Politics and History 513.
[17] Templeton, above n 14.
[18] G E Fasnacht, Acton’s Political Philosophy: An Analysis (1952).
[19] Convention on the Regulation of Antarctic Mineral Resource Activities, opened for signature 2 June 1988, 27 ILM 868 (not in force).
[20] Statement by New Zealand, the CRAMRA depository: New Zealand Ministry of Foreign Affairs and Trade,> at 29 September 2009.
[21] 1989 CRAMRA, art 29.
[22] 1991 Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1455 (entered into force 14 January 1998).
[23] Humane Society International v Kyodo Senpaku Kaisha Ltd [2008] FCA 3. For detailed discussion of this case see the ‘Special Issue: Japanese Whaling in Antarctica’, (2008) 11 Asia Pacific Journal of Environmental Law.
[24] A D Hemmings, ‘Problems Posed by Attempts to Apply a Claimant’s Domestic Legislation Beyond its Own Nationals in Antarctica’, (2008) 11 Asia Pacific Journal of Environmental Law, 207. J Jabour and M Uliff, ‘Theatre Sports in the Southern Ocean: Engagement Options for Australia in Whale Research Protest Action’, (2009) 63 Australian Journal of International Affairs, 268.
[25] Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982).
[26] P Gower, ‘Spy Drones on NZ Defence Wish List’, The New Zealand Herald, 30 September 2009 < & objectid=10600341> at 30 September 2009.
[27] See, eg, O Wæver, ‘Securitization and Desecuritization’ in R D Lipschutz (ed), On Security (1995), 46. The “Copenhagen School” is a security studies community initially centred on Barry Buzan, Ole Wæver and others associated with the Copenhagen Peace Research Institute. ‘Securitization’, a term first used by the Copenhagen School but now deployed more widely, means a speech act whereby the invoking of security casts the issue in question in particular prescriptive terms, rationalising and sanctioning particular sorts of responses.
[28] Outline of Submissions of the Attorney-General of the Commonwealth as Amicus Curiae (25 January 2005).
[29] Ibid [16].
[30] J Burgess, E Waterhouse, A D Hemmings and P Wilson, ‘Declaration of Marine Protected Areas – The Case of the Balleny Islands Archipelago, Antarctica’, in J P Beumer, A Grant and D C Smith (eds), Aquatic Protected Areas: What Works Best and How do we Know? (2003), 196.
[31] See [54]-[64], ‘Report of the Committee for Environmental Protection’, in Final Report of the Twenty-ninth Antarctic Treaty Consultative Meeting (Edinburgh, 12 – 23 June 2006)
<> at 24 November 2009.
[32] See, eg, L M Elliot, International Environmental Politics: Protecting the Antarctic (1994) 106-108.
[33] See, eg, S Chaturvedi, The Polar Regions: A Political Geography (1996) and K Dodds, Pink Ice: Britain and the South Atlantic Empire (2002).
[34] O A Anisimov et al, ‘Polar Regions (Arctic and Antarctic)’, in M L Parry et al, (eds), Climate Change 2007: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007), 653.
[35] A variety of considerations beyond the scope of this paper were relevant to that decision.
[36] See D G Ainley, ‘A History of the Exploitation of the Ross Sea, Antarctica’, (2009) Polar Record - doi: 10.1017/S003224740999009X and references therein.
[37] See the discussion of Australian Antarctic Interests in A D Hemmings, L K Kriwoken and J Jabour, ‘Looking Forward, Looking South: An Enduring Australian Antarctic Interest’ in L K Kriwoken, J Jabour and A D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (2007), 191.

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