Historic Perspectives of Antarctic Claimant and Non-claimant Nations

Summary

The Antarctic Treaty System (ATS), spawned by the Antarctic Treaty of 1959, has proved to be one of the successes of 20th century international law and diplomacy. Over the last 50 years, the Antarctic Treaty has preserved the Antarctic continent as a zone of peace and free scientific research and provided an effective model for the management of regions beyond the limits of national jurisdiction according to common values. The reasons for this success are, however, by no means obvious to the casual observer. The language of the Treaty itself and of the interlinked conventions on seals, marine living resources, minerals exploitation and environmental protection, is deliberately ambiguous and vague. The regime has weak inspection, enforcement and governance mechanisms and has been slow to respond to conflict in the Southern Ocean over whaling and illegal fishing.A key to understanding both the successes and limitations of the ATS lies in the differing juridical positions of the member states on sovereign claims to Antarctic territory. Every ATS agreement, measure and recommendation, and state practices in respect of Antarctica, should be viewed through the prism of these national perspectives on sovereignty. This paper, briefly sets out the evolution of the ATS and explores the fundamental role of Article IV and ‘sovereign neutrality’ as the glue that binds the regime by side-stepping potential conflicts over territorial claims, enabling Consultative Parties to manage activities in Antarctica in the wider interests of the international community. For the early years of the 21st century, the vital question is whether the ATS is capable of responding effectively to the challenges posed by illegal fishing and whaling, climate change, commercial tourism, energy and human security. The litigation in the Japanese Whaling case, brought by the Humane Society International in the Australian Federal Court, provides a salutary warning of the risks to the ATS of unilateral assertions of national jurisdiction over activities in the Antarctic region. The Consultative Parties are now on notice to justify the legitimacy of their mandate and to demonstrate the capacity of the ATS to respond to contemporary Antarctic issues. The 50 year historical evolution of the ATS, and its demonstrated capacity for dynamic growth, suggest that the regime and its members have the flexibility and political will to continue its success in the future.

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