Blackie, Andrew --- "Sovereignty on Ice: The Status of Antarctica in International Law" [2016] UNSWLawJlStuS 8; (2016) UNSWLJ Student Series No 16-08

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SOVEREIGNTY ON ICE: THE STATUS OF ANTARCTICA IN INTERNATIONAL LAW

ANDREW BLACKIE

I INTRODUCTION

Popular imagination associates Antarctica with wilderness and scientific endeavour. In reality, however, seven nations advance long-standing territorial claims in the Antarctic: Argentina, Australia, Chile, France, New Zealand, Norway and the UK.^[1] Since 1961, these claims have coexisted within the internationalist framework of the Antarctic Treaty System.^[2]

Under the auspices of the Antarctic Treaty System, geopolitical competition over the polar continent has been muted in favour of scientific cooperation for a period of over 50 years. Since 1959, the date of conclusion of the original Antarctic Treaty, States Parties have expanded from the original 12 members to a current total of 53. Standard accounts^[3] laud the establishment of peaceful scientific collaboration, non-militarisation, and a 1991 prohibition on mining^[4] in the region as particular accomplishments.

Notwithstanding the successes of the regime, it has failed to resolve the fundamental ambiguity of Antarctica in international law. The system preserves a pragmatic compromise whereby territorial claims are ‘frozen,’ but not surrendered.^[5] This has fostered what has been labelled the ‘bifocal approach,’ creating norms that establish the same responsibilities, but are constructively interpreted on the basis of the party’s perceived rights in Antarctica.^[6] The growing geopolitical salience of the continent since the 1960s, underpinned by its rich mineral and marine resources, and reinforced by the high-profile entry of emerging players including China and India, illustrates the delicacy of this balance.^[7] Furthermore, the examples of other sovereignty-contested regions such as the South China Sea and, to a lesser extent, the Arctic, demonstrate the potential for competing claimants to exploit ambiguity in international law for national gain, thereby undermining stability.^[8]

The purpose of this essay is to determine the status of Antarctica in international law, taking into account the effect of the Antarctic Treaty on Antarctica’s legal status, and the extent to which this has been altered or affected by the major additions to the Antarctic Treaty System since its entry into force. The essay first considers whether sovereign claims in Antarctica may be made out. Subsequently, it examines whether sovereignty and territorial claims have been superseded by a common management regime. Finally, it considers the possibility that Antarctica comprises a distinct international law regime in a class of its own. Based on an assessment of these competing regimes, this essay argues that there is no convincing basis in international law to overturn established territorial claims in Antarctica. The logical conclusion is that such claims are valid; however, claimants may be obliged to accept diminished sovereignty as an ineluctable by-product of the Antarctic Treaty System.

II THE INTERNATIONAL LAW CONTEXT

International law has developed to provide distinctions between various spaces in the physical environment. As international law is tethered to the premise of state sovereignty, the concept plays a defining role in shaping the rights, responsibilities and interactions of states in these spaces.^[9] In particular:

1. Landmasses are inherently subject to occupation and territorial claims by states. As established by international jurisprudence, effective territorial claims may give rise to sovereignty;^[10]

2. Sovereignty over land entails, by extension, sovereignty over natural resources^[11] and rivers within the territory, over airspace, and over the surrounding territorial sea;^[12]

3. As established by the United Nations Convention on the Law of the Sea (‘UNCLOS’), sovereign rights extend in waters adjacent to the territory through an Exclusive Economic Zone (EEZ) of 200 nautical miles, and a continental shelf if applicable, and responsibility to respect innocent passage arises;^[13]

4. Sovereignty claims over common areas, such as the high seas, are invalid under international law.^[14]

5. Finally, certain spaces being deemed as non-appropriable, characterised as the ‘common heritage of humankind.’ The deep seabed and outer space are subject to this principle.^[15]

III ANTARCTICA AS TERRITORY

Unlike the Arctic, Antarctica is geologically a landmass. Therefore, the continent may prima facie be subject to territorial claims. International law recognises four methods by which territory may be validly acquired.^[16] These are:

1. Effective occupation of terra nullius;

2. Prescription, whereby title to territory flows from effective possession over a period of time;

3. Cession or transfer through treaty; and

4. Accretion through geological processes.

Conquest has been illegitimate as a means of acquiring territory since the emergence of the post-war international order. Antarctica was unpopulated prior to the advent of territorial claims in the early twentieth century. Therefore, effective occupation of terra nullius is clearly the applicable test.

Effective occupation of terra nullius may be established by evidence that the state:

1. Has intent and will to act as sovereign; and

2. Has exercised continuous and peaceful display of state functions in the territory.^[17]

Additionally, public proclamation of the territorial claim is essential to demonstrate effective occupation.^[18] Generally, actual occupation of the territory has also been required to make out effective occupation.^[19] This presents special difficulties in Antarctica owing to the inhospitality and remoteness of the continent; some commentators have even suggested effective occupation of Antarctica to be practically impossible.^[20]

However, this analysis overlooks a significant body of international law jurisprudence holding effective occupation to be a flexible standard depending on the circumstances of the territory.^[21] The case most relevant to determining territorial claims in Antarctica is the 1933 Greenland case,^[22] which ruled on a sovereignty dispute between Denmark and Norway over Greenland. Denmark relied on small settlements on the east and west coast as the basis for a sovereignty claim over the entirety of Greenland; this was manifested through legislation purporting to have effect over the whole territory.^[23] Norway, contending that areas unsettled by Denmark were terra nullius, claimed a territory of its own in Greenland in 1931.^[24] The then Permanent Court of International Justice held that Denmark had established ‘authority to an extent sufficient’ to establish sovereignty.^[25] In particular, the Court stated:

In many cases the Tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other state could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.^[26]

The principles of this case have been affirmed in subsequent judgments by the International Court of Justice.^[27] The effect of the Greenland judgment is that the failure of claimant states in Antarctica to ‘settle’ their ostensible territories in Antarctica would not defeat the presumption that the territories had been effectively occupied, as long as the state is able to demonstrate continuous and peaceful display of state functions, and another state does not possess a superior claim to the same territory.

Determination of a hypothetical critical date, a method commonly used in the adjudication of competing territorial claims,^[28] is of assistance in assessing the display of state functions by Antarctic claimants. The method sets a date at which the dispute between parties ‘crystallised,’ considering only functions and conduct prior to the critical date in order to ascertain the stronger claim to territory.^[29] In the case of Antarctica, the critical date should be set as 23 June 1961, the date at which the Antarctic Treaty entered into force, freezing sovereignty claims in Antarctica for the duration of its validity.^[30] Applying these considerations, it can be observed in the period prior to 1961 all claimant states publicly promulgated their territorial claims, engaged in commercial activity including whaling,^[31] and issued legislation covering the entirety of their respective territorial claims.^[32] Many further embarked on scientific expeditions within their claimed territories.^[33]

Territorial claims to Antarctica are not widely recognised in the international community. Although the Antarctic Treaty has amassed 53 States Parties, the ‘bifocal approach’ of that instrument allows accession without implying recognition of pre-existing territorial claims. Formal recognition is limited within the group of claimant states, although the UK, Argentina and Chile have overlapping claims.^[34] Nonetheless, claimant states may rely on general absence of protest by other states prior to 1961 as a basis consolidating their claims. In the Eastern Greenland case, absence of rival claims was held to be ‘significant’ in assessing state title to territory.^[35]

A significant number of cases in international law provide precedent for the proposition that the challenging Antarctic environment does not prevent claims from being advanced and effectuated. Unless the Antarctic Treaty System has altered the international law character of Antarctica, the territorial claims of the seven claimant states may be considered as effective.

IV ANTARCTICA AS COMMON HERITAGE

A The Antarctic Treaty System

The Antarctic Treaty System was created with the explicit purpose of managing Antarctica under international law. From an international law standpoint, the centrepiece of the Treaty is Article 4, which provides:

1. The Treaty does not constitute a basis for renunciation or diminution of a state party’s territorial claim, nor prejudice the position regarding recognition or non-recognition of any state’s right or basis of claim to territorial sovereignty; and

2. No acts or activities taking place while the treaty is in force constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica. New claims and enlargement of existing claims are further prohibited while the treaty is in force.^[36]

In this light, the Treaty enshrines the principles of non-militarisation and freedom of scientific investigation, in Articles 1 and 2, respectively.^[37] It contains provisions on freedom of access to all areas of Antarctica, subjecting personnel in Antarctica to the jurisdiction only of their state.^[38] The Treaty also asserts its conformity with the ‘purposes and principles’ of the UN Charter.^[39] This is significant as the Treaty remains one of the few multilateral treaties concluded outside the auspices of the UN System, as discussed in further detail below.

The Treaty stipulates that parties shall exert appropriate efforts to ensure that ‘no one’ engages in activity in Antarctica contrary to its ‘principles or purposes.’^[40] This would appear to require parties to ensure that even non-parties to the Treaty comply with its terms. This assumes importance as, although accession to the Treaty is open to any state, parties must ‘demonstrate interest in Antarctica by conducting substantial scientific research there’ in order to gain the right to participate in the periodic Antarctic Treaty Consultative Meetings and to modify the terms of the Treaty, a process requiring unanimous consent of Antarctic Treaty Consultative Parties.^[41] This poses a significant hurdle to participation for prospective parties.^[42]

The Antarctic Treaty is supplemented by the 1991 Madrid Protocol, which achieved a total ban on mining in Antarctica. Emerging out of the failed 1988 Convention on the Regulation of Antarctic Mineral Resource Activities, which envisioned mineral extraction in Antarctica, the Protocol reinforces the Antarctic Treaty, designating Antarctica as a natural reserve, elevating protection of the Antarctic environment to a fundamental consideration, and prohibiting ‘any activity relating to mineral resources.’^[43] The latter provision is an entrenched clause, having effect until 2048, and continuing automatically at that time unless the following conditions are met:

1. A binding legal regime on mining activity is proposed;

2. The regime safeguards the interests of all states referred to in Art 4 of the Antarctic Treaty; and

3. Is adopted by a majority of parties;

4. Including three quarters of the Antarctic Treaty Consultative Party states at the time the Protocol was adopted.^[44]

This is a stringent prerequisite, given that reservations to the Protocol are not permitted, and states may not become parties to the Antarctic Treaty without also acceding to the Protocol.^[45] Cumulatively, the two instruments must be read as an attempt to secure universal norms regarding Antarctica, even with respect to non-parties.

During the 1980s, a number of developing states, led by Malaysia, objected to the perceived high barrier of entry to the Antarctic Treaty Consultative Meeting and successfully included the ‘question of Antarctica’ on the UN General Assembly agenda. This arose in the context of the New International Economic Order movement of the era, spearheaded by developing states, which sought to ensure more equitable distribution of global resources and economic benefits.^[46] The resolutions of this period, though not binding upon states, provide useful supplementary material to determine the polar continent’s status in international customary law, including among non-States Parties to the Antarctic Treaty.

Though General Assembly scrutiny of Antarctica is often characterised as a direct challenge to the Antarctic Treaty System,^[47] the resolutions, which span the period 1983-2006, generally mirror the principles embodied in that framework. Prior to the conclusion of the Madrid Protocol, resolutions call for comprehensive environmental protection, reduction of human activity, and a permanent mining ban.^[48] There is a marked shift in the tone of resolutions from 1994 onwards, which explicitly recognise the role of the Antarctic Treaty in furthering UN principles, and endorse the terms of Madrid Protocol.^[49] All resolutions of the period include calls for Antarctica to be reserved for exclusively peaceful purposes. It may therefore be concluded that the key provisions of the Antarctic Treaty System – non-militarisation, environmental protection and a mining prohibition – are reflected also in international customary law.

B UNCLOS and the Antarctic Treaty System

The entry into force of UNCLOS in 1994 conferred sovereign rights in the adjacent EEZ and, if claimed by the state, a continental shelf.^[50] This entails significant rights to marine resources, and hence the compatibility of UNCLOS with the Antarctic Treaty System is a topic of contention. All Antarctic claimant states have advanced claims to an EEZ and continental shelf in Antarctica.^[51] However, the rights conferred by UNCLOS may also be read as compatible with the earlier Antarctic Treaty; that is, while claimant states are entitled to these rights as a natural extension of sovereignty, claims to maritime rights remain dormant for the life of the treaty in accordance with Article 4.

C The Common Heritage of Humankind

The common heritage of humankind principle is characterised by four elements: non-appropriation; common management; equitable distribution of benefits for the benefit of humankind; and use exclusively for peaceful purposes.^[52] The deep seabed and outer space are two regions explicitly recognised in international law as belonging to the common heritage of humankind. The Antarctic Treaty System predates both treaties regulating these areas, yet comparison of the three primary instruments – the Antarctic Treaty, the 1967 Outer Space Treaty, and the 1982 UNCLOS – reveals similarities.

As in the Antarctic Treaty, the Outer Space Treaty proceeds from the premise of the exploration and use of outer space for peaceful purposes, envisioning scientific cooperation for the ‘benefit and in the interests of’ humankind. The Treaty contains the following provisions which are identical or highly similar to their Antarctic Treaty System counterpart:

1. Freedom of access to all states, with astronauts treated as ‘envoys of [hu]mankind,’ a position analogous to scientific personnel in the Antarctic Treaty;^[53]

2. A ban on militarisation, including the stationing of weapons;^[54]

3. Obligation to conduct activities in a manner that avoids harmful environmental effects.^[55]

UNCLOS further specifically defines the deep seabed as ‘part of the common heritage of mankind,’ and establishes a complex management scheme embodying the principles above.^[56] The object and purpose of multiple measures in the Antarctic Treaty System therefore conform with the common heritage principle as manifested in the Outer Space Treaty and UNCLOS. Academic commentary has argued that the results achieved are also identical.^[57]

In other respects, however, the treaties are distinct in law and in practice. In law, the Outer Space Treaty and UNCLOS expressly deny sovereignty claims and reserve the deep seabed and outer space, respectively, as the province of all humankind.^[58] The two common heritage treaties are further distinguished by their commitment to equality for all states, extending to rights and resources. UNCLOS features complex provisions on distributing financial and economic benefits derived from the deep seabed on a ‘non-discriminatory basis;’^[59] the Outer Space Treaty, while not worded as strongly, includes operative clauses on equality and reciprocity for the benefit of ‘all countries, irrespective of their degree of economic or scientific development,’^[60] as norms in the exploration of outer space.

The content of the Antarctic Treaty is weaker in both instances. The interests of humankind are mentioned only twice, in the Treaty’s preamble, in relation to use for peaceful purposes and freedom of scientific investigation, while the constructive ambiguity of Article 4 obligating states to suspend territorial claims without negating them. Owing to a higher threshold of membership, dependent on acceding states conducting ‘substantial scientific research’ in order to be entitled to Antarctic Treaty Consultative Party status, the operation of the Antarctic Treaty System is also more hierarchical than the common heritage treaties.

The overriding practical reason, however, why it would be inaccurate to class the Antarctic Treaty System as part of the common heritage of mankind is that it secures and prioritises the vested interests of claimant states. The Antarctic Treaty was borne more of pragmatism than internationalism: a prime motivator in the context of the 1950s Cold War was security. Claimant states were increasingly concerned by the robust activities of the US and Soviet Union in Antarctica, and by indicators of potential militarisation, yet at the same time opposed proposals by states such as India to submit the continent to UN trusteeship.^[61] Article 4 was a successful compromise to preserve original claims at the critical date of 1961, when claimant states were in a far more advantageous position vis-à-vis the international community than today. It compounds this advantage by debarring new claims for the life of the treaty.

The Madrid Protocol, though it consolidated Antarctica’s status as a natural reserve by achieving a prohibition on exploiting mineral, makes it impossible to circumvent the interests of claimant states in any future move towards allocating resources. This is achieved by requiring the approval of three quarters of the 1991 makeup of the Antarctic Treaty Consultative Parties for modification of the existing regime. In these circumstances, it is probably not coincidental that the Antarctic Treaty Consultative Meeting became more open to the international community only after agreement of the Madrid Protocol in 1991. Only after this time, for example, did it begin to submit meeting reports to the UN Secretary-General.^[62] Future modification to the Antarctic Treaty System would likely need to involve taking into account pre-existing territorial claims. It should not be expected that claimant states would cede these interests.

V ANTARCTICA AS SUI GENERIS REGIME

Ambiguity over Antarctica’s international law position has led to suggestions that it may comprise a sui generis regime.^[63] The conduct of the Antarctic Consultative Treaty Parties and claimant states since 1991, in particular through invocation of the ‘special legal and political status’ of Antarctica, contributes to this hypothesis.^[64] Two particular trends, scientific influence and common concern, are relevant to determination of Antarctica’s status.

A Scientific Influence

The Antarctic Treaty System, though professing to operate for the benefit of mankind, implements a system whereby certain states have greater rights than others. Brady argues that a unique regime for acquiring status and influence in Antarctic governance has evolved under the auspices of the treaty system, depending on, inter alia, number and distribution of scientific bases, research output, and funding levels.^[65] In her view, the policy of rising nations in Antarctica is predicated on traditional territorial claims being supplanted by this alternative ‘soft claim,’ conferring comparatively greater rights and future decision-making ability.^[66] This strategy is an attempt to subvert the framework of the Antarctic Treaty System by exploiting the hierarchy implicit within the Treaty. From an international law standpoint, however, it is incapable of conferring rights beyond status as an Antarctic Treaty Consultative Party, as Article 4 prevents these activities being used as the basis for territorial claims.

B Common concern

In the late twentieth century, the ambit of international environmental law expanded conceptually to incorporate certain phenomena, including climate change and biodiversity, as within the ‘common concern of humankind.’^[67] This principle is reflected in international environmental agreements including the Convention on Biological Diversity,^[68] and is compatible with state sovereignty.^[69] At least since 1991, environmental principles and the precautionary approach have guided management of Antarctica, including measures such as conservation of fauna and environmental preservation that are central to international environmental law.^[70] Applying the concept of common concern of humankind to Antarctica would be commensurate with the region’s hybrid status in international law. However, no legal instrument has yet recognised it in connection with Antarctica.^[71] Care would also be needed in extending to a landmass a conceptual framework that has, to date, regulated more abstract natural phenomena.

As such, despite the relevance of scientific influence and common concern to Antarctica, neither has evolved to the extent that would allow Antarctica to be defined as a sui generis regime with sufficient clarity.

VI CONCLUSION

Since the inauguration of the Antarctic Treaty, all claimant states have continued to assert sovereignty over relevant sectors of Antarctica through a combination of legislative actions, official conduct and public statements. Perhaps more significantly, domestic measures pursued by claimant states, including education and the media, have reinforced consciousness of Antarctica as national territory among claimant state populations.^[72] The possibility that the seven claimant states would willingly submit to an agreement explicitly relinquishing sovereignty claims may therefore be assessed as remote.

The effect of the Antarctic Treaty System in international law has been to preserve territorial claims while preventing new ones. This eliminates the effectiveness of further territorial claims being made. Even if a non-party to the Antarctic Treaty were to hypothetically advance an overlapping territorial claim, the case of Eastern Greenland provides authority for the proposition that an earlier effective claim would prevail. Emerging international law principles, such as the common heritage or common concern of humankind, lack the degree of cogency and specificity with respect to Antarctica that would permit territorial claims to be overturned outright. Therefore, Antarctica retains the status of territory in international law, and territorial claims are valid, providing that each claim is effectively made out by the claimant state.

However, this is accompanied by the important caveat that principles central to the management of Antarctica, especially non-militarisation, freedom of scientific investigation, environmental protection and a prohibition on mining, have passed into international customary law. The application of these principles to Antarctica, and their acceptance by claimant states in their Antarctic activities, necessarily involves a significant diminution of normal sovereign rights. The status of Antarctica in international law in the twenty-first century finds most apt expression in a ‘muted sovereignty,’ taking into account the unique environmental conditions and nature of inter-state relations that characterise the last continent.

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^[1] The respective dates of claim are: Argentina 1942, Australia 1933, Chile 1940, France 1924, New Zealand 1923, Norway 1939 and the UK 1908. Additionally, the US and Russia reserve the right to make territorial claims to the entire continent. Details on claims are provided in Gillian Triggs, ‘Australian Sovereignty in Antarctica Part I’ [1981] MelbULawRw 15; (1981) 13 Melbourne University Law Review 123, note 5.

^[2] Primarily the Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 5778 (entered into force 23 June 1961) (‘Antarctic Treaty’). There are 53 states parties to the treaty, including all claimant states.

^[3] See for example Hillary Clinton, ‘Remarks at the Joint Session of the Antarctic Treaty Consultative Meeting and the Arctic Council, 50^th Anniversary of the Antarctic Treaty’ (Speech delivered in the Loy Henderson Conference Room, Washington DC, 6 April 2009) <http://www.state.gov/secretary/20092013clinton/rm/2009a/04/121314.htm> Jackson, Andrew, ‘Antarctica Without Borders’ (2012) 100 Issues 12.

^[4] Protocol on Environmental Protection to the Antarctic Treaty, signed 4 October 1991 [1998] ATS 6 (entered into force 14 January 1998) Art 7 (‘Madrid Protocol’).

^[5] Antarctic Treaty Art 4.

^[6] Alex Elferink, ‘The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?’ (2009) 40 Netherlands Yearbook of International Law 121, 134.

^[7] Kaye, Stuart, ‘IUU Fishing in the Southern Ocean: Challenge and Response’ in Gillian Triggs and Anna Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (British Institute of International and Comparative Law, 2007) 39; Jane Perlez, ‘China, Pursuing Strategic Interests, Builds Presence in Antarctica,’ The New York Times (online); Simon Romero, ‘Countries Rush for Upper Hand in Antarctica,’ The New York Times (online), 29 December 2015.

^[8] Chua, Grace, ‘To Ease the South China Sea Dispute, Look to the Arctic,’ Hakai Magazine (online), 3 March 2016 <http://www.hakaimagazine.com/article-short/ease-south-china-sea-dispute-look-arctic> .

^[9] Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press, 2008) 551, 551.

^[10] Island of Palmas (United States v the Netherlands) (Judgment) (1928) 2 RIAA 829.

^[11] Permanent sovereignty over natural resources, GA Res 17/1803, UN GAOR, 17th sess, 1194th plen mtg, Agenda Item 39, UN Doc A/RES/17/1803 (14 December 1962).

^[12] Maritime Delimitation and Territorial Questions (Qatar v Bahrain) (Judgment) (2001) ICJ Rep 40, 101.

^[13] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 31363 (entered into force 16 November 1994) (‘UNCLOS’) Arts 3, 33, 56.

^[14] Ibid Art 89.

^[15] Ibid Art 137; Treaty on principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies, opened for signature 27 January 1967, 610 UNTS 8843 (entered into force 10 October 1967) (‘Outer Space Treaty’).

^[16] Based on Triggs, above n1, 127.

^[17] Island of Palmas (United States v the Netherlands) (Judgment) (1928) 2 RIAA 82

^[18] Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ (ser A/B) No 53.

^[19] Triggs, above n1, 127.

^[20] Indi Hodgson-Johnston, ‘Australian Politics and Antarctic Sovereignty: themes, protagonists and antagonists’ (2015) 7(3) Australian Journal of Maritime and Ocean Affairs 183, 184; Ruth Davis, ‘Enforcing Australian Law in Antarctica: the HSI Litigation’ [2007] MelbJlIntLaw 6; (2007) 8 Melbourne Journal of International Law 142, 148-9.

^[21] Island of Palmas (United States v the Netherlands) (1928) 2 RIAA 829, 840, 855; Clipperton Island (France v Mexico) (1931) 2 RIAA 1105; Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgment) [2008] ICJ Rep 12, 36.

^[22] Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCIJ (ser A/B) No 53.

^[23] Ibid.

^[24] Ibid.

^[25] Ibid 50-1.

^[26] Ibid 45-6.

^[27] Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgment) [2008] ICJ Rep 12; Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment) [2002] ICJ Rep 625.

^[28] Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgment) [2008] ICJ Rep 1, 28.

^[29] Ibid. There are exceptions, notably for acts which are the ‘normal continuation of prior acts’ occurring before the critical date: Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) (Judgment) [2002] ICJ Rep 625, 682.

^[30] Antarctic Treaty Art 4.

^[31] Gillian Triggs, ‘Australian Sovereignty in Antarctica, Part II’ [1982] MelbULawRw 2; (1982) 13 Melbourne University Law Review 302, 302.

^[32] Argentina: Decree No 9905 1948; Decree No 17040 1948

Australia: Australian Antarctic Territory Acceptance Act 1933 (Cth); Whaling Act 1935 (Cth).

Chile: Decree No 1747 1940; Law No 11486 1955 (note, however, that the former decree remained unpublished until 1955)

France: Law No 55-1052 1955.

New Zealand: Ross Dependency Boundaries and Government Order in Council 1923 (NZ) SR 1923/974.

Norway: Dependency Act 1933.

UK: Orders in Council under the British Settlements Act 1887 (UK) were issued in 1923 and 1933.

^[33] For example the British, Australian and New Zealand Antarctic Research Expeditions (BANZARE) of 1929-1931.

^[34] Triggs, above n31, 317.

^[35] As affirmed in Sovereignty Over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore) (Judgment) [2008] ICJ Rep 1, 35.

^[36] Antarctic Treaty Art 4.

^[37] Ibid, Arts 1(1), 2.

^[38] Ibid, Arts 7(2), 8(1).

^[39] Ibid, Preamble.

^[40] Ibid, Art 10.

^[41] Ibid, Arts 9, 12(1)(a), 13.

^[42] Louise Angelique de la Fayette, ‘Responding to Environmental Damage in Antarctica’ in Gillian Triggs and Anna Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (British Institute of International and Comparative Law, 2007) 109, 114.

^[43] Madrid Protocol Arts 2, 3, 7.

^[44] Ibid, Art 25(2), (3), (5).

^[45] Ibid, Arts 22(4), 24.

^[46] Bradley Larschan and Bonnie Brennan, ‘The Common Heritage of Mankind Principle in International Law’ (1983) 21 Columbia Journal of Transnational Law 305, 306-8.

^[47] Klaus Dodds, ‘Sovereignty watch: claimant states, resources, and territory in contemporary Antarctica’ (2011) 47(242) Polar Record 231, 235.

^[48] Question of Antarctica, GA Res 44/124, UN GAOR, 44^th sess, 81^st plen mtg, UN Doc A/RES/44/124 (13 December 1989) paras 4, 5 (‘GA Res 1989’); Question of Antarctica, GA Res 45/78, UN GAOR, 45^th sess, 66^th plen mtg, UN Doc A/RES/45/78 (12 December 1990) paras 2, 4; Question of Antarctica, GA Res 46/41, UN GAOR, 46^th sess, 65^th plen mtg, UN Doc A/RES/46/41 (6 December 1991) paras 6, 9, 10 (‘GA Res 1991’); Question of Antarctica, GA Res 47/57, UN GAOR, 47^th sess, 81^st plen mtg, UN Doc A/RES/47/57 (9 December 1992) paras 9, 12, 13 (‘GA Res 1992’); Question of Antarctica, GA Res 48/80, UN GAOR, 48^th sess, 81^st plen mtg, UN Doc A/RES/48/80 (16 December 1993), paras 8, 11, 12.

^[49] Question of Antarctica, GA Res 49/80, UN GAOR, 49^th sess, 90^th plen mtg, UN Doc A/RES/49/80 (15 December 1994). Resolutions on the ‘Question of Antarctica’ since this time in 1995, 1997, 1999, 2002 and 2006 have reaffirmed the position of the 1994 Resolution.

^[50] UNCLOS Arts 3, 33, 56, 76.

^[51] Alex Elferink, ‘The Continental Shelf in the Polar Regions: Cold War or Black-Letter Law?’ (2009) 40 Netherlands Yearbook of International Law 121, 164.

^[52] Larschan and Brennan, above n48, 305.

^[53] Outer Space Treaty Arts 1, 5.

^[54] Ibid, Art 4.

^[55] Ibid, Art 9.

^[56] UNCLOS Part XI, in particular Art 136.

^[57] Patrizia Vigni, ‘The Interaction between the Antarctic Treaty System and the Other Relevant Conventions Applicable to the Antarctic Area’ in J.A. Frowein and Rüdiger Wolfrum, Max Planck Yearbook of United Nations Law (Kluwer Law International, 2000) 481, 500 (note 48).

^[58] Outer Space Treaty Art II; UNCLOS Art 137.

^[59] UNCLOS Art 140.

^[60] Outer Space Treaty Arts 1, 12.

^[61] Hayton, Robert, ‘The Antarctic Settlement of 1959’ (1960) 54 American Journal of International Law 349.

^[62] Notably, the Antarctic Treaty Consultative Meeting became more open to the international community only after agreement of the Madrid Protocol in 1991, beginning to submit its meeting reports to the UN Secretary-General in 1992: see GA Res 1992, UN Doc A/RES/47/57.

^[63] Rothwell and Nasu, above n20, 3-4.

^[64] Madrid Protocol Preamble para 4; Government of the Commonwealth of Australia, ‘Diplomatic Note from the Permanent Mission of Australia to the UN, to the UN Secretary General, regarding Australia’s Submission to the Commission on the Limits of the Continental Shelf,’ Note No 89/2004 (November 2004).

^[65] Anne-Marie Brady, ‘Evaluating China as an Antarctic State’ (Working Paper, Wilson Center, 2014) 1, 3.

^[66] Ibid, 4.

^[67] Brunnée, above n9, 552-3.

^[68] Opened for signature 5 June 1992, 1760 UNTS 30619 (entered into force 29 December 1993).

^[69] Vigni, above n57, 501 (note 55).

^[70] Alan Brown, ‘Some Current Issues Facing the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)’ in Gillian Triggs and Anna Riddell (eds), Antarctica: Legal and Environmental Challenges for the Future (British Institute of International and Comparative Law, 2007) 85, 90.

^[71] Vigni, above n70, 502.

^[72] Dodds, above n50, 236.