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The Moral Limits of Territorial Claims in Antarctica

  • Alejandra Mancilla
Abstract

By virtue of the Antarctic Treaty, signed in 1959, the territorial claims to Antarctica of seven of the original signatories were held in abeyance or “frozen.” Considered by many as an exemplar of international law, the Antarctic Treaty System has come to be increasingly questioned, however, in a very much changed global scenario that presents new challenges to the governance of the White Continent. In this context, it is necessary to gain a clearer understanding of the moral weight of those initial claims, which stand (despite being frozen) as a cornerstone of the treaty. The aim of this article is to offer an appraisal of such claims, which may be divided into two main kinds: those grounded on some relevant link to the territory, and those grounded on official documents and geographical doctrines. After pointing to the limitations and challenges that they face, I conclude with some remarks about how this assessment ought to serve as a starting point to rethink the territorial status of Antarctica.

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I am very grateful to Alfonso Donoso for extensive comments on previous versions of this article. I would also like to thank Megan Blomfield, Kerstin Reibold, Chris Armstrong, and Andreas Føllesdal for written feedback, José Retamales for the illuminating conversations on the topic, and the audiences at the following venues: the “Territorial Rights and Rivers” Workshop, University of Cork; the “Territorial Challenges” Conference, Université du Québec à Montréal; the CSMN Final Conference and “Political Philosophy Looks to Antarctica” Workshop, University of Oslo; and the Political Science Seminar and Seminar on International Legal and Political Theory, University of Oslo. I also thank NorLARNet for financing the Workshop “Norway, Chile, and Argentina as Original Claimants and Current Guardians of Peace, Science, and Environmental Protection in Antarctica,” University of Tromsø, where an earlier version of this article was presented. Finally, I thank the editors and anonymous reviewers of Ethics & International Affairs for giving me substantial feedback, and Hannah Monsrud Sandvik for her research assistance. This work has been financially supported by the Research Council of Norway, as part of the research project “Political Philosophy Looks to Antarctica.”

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1 Although there is no necessity for anything to happen in 2048, the Protocol establishes that fifty years after its entry into force, any of the consultative parties may request a conference to review its operation. Any changes to it would then have to be adopted “by a majority of the Parties, including three-fourths of the States which are Antarctic Treaty Consultative Parties at the time of adoption of [the] Protocol.” The Protocol on Environmental Protection to the Antarctic Treaty opened for signature on October 4, 1991, and entered into force January 14, 1998. See Secretariat of the Antarctic Treaty, “Protocol on Environmental Protection to the Antarctic Treaty,” Article 25, www.ats.aq/documents/recatt/Att006_e.pdf.

2 The Antarctic Treaty System comprises the AT at its core, plus the other legal instruments regulating different Antarctic matters, such as the Convention for the Conservation of Antarctic Marine Living Resources, and the Protocol on Environmental Protection. Regarding Korea's and China's interests in Antarctica, see Brady, Anne-Marie and Seungryeol, Kim, “Cool Korea: Korea's Growing Antarctic Interests,” in Brady, Anne-Marie, ed., The Emerging Politics of Antarctica (Abingdon: Routledge, 2013), pp. 7595; and Brady, Anne-Marie, China as a Great Polar Power (Cambridge: Cambridge University Press, 2017). Reports about China's interests in Antarctica have also surged in recent times. See, for example, “China's Secret Threat to Australia's Antarctic Claim, Report Reveals,” News.com.au, August 18, 2017, www.news.com.au/world/chinas-secret-threat-to-australias-antarctic-claim-report-reveals/news-story/d88ca4389f7d621f5b50d529954de68d; and Dan Southerland, “Does China Want to Explore Antarctica, or Exploit Its Resources?” Radio Free Asia, November 30, 2017, www.rfa.org/english/commentaries/china-antarctica-11302017154333.html.

3 For a succinct presentation of these challenges, see Dodds, Klaus, “Governing Antarctica: Contemporary Challenges and the Enduring Legacy of the 1959 Antarctic Treaty,” Global Policy 1, no. 1 (2010), pp. 108–15. For a more detailed account, see Hemmings, Alan D., Rothwell, Donald R., and Scott, Karen N., eds., Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives (Abingdon: Routledge, 2012).

4 A good summary is given in Prescott, Victor and Triggs, Gillian D., International Frontiers and Boundaries: Law, Politics and Geography (Leiden: Martinus Nijhoff Publishers, 2008), pp. 384–91.

5 See Jabour, Julia and Weber, Melissa, “Is It Time to Cut the Gordian Knot of Polar Sovereignty?Review of European Comparative & International Environmental Law 17, no. 1 (2008), pp. 2740; and Triggs, Gillian, “The Antarctic Treaty System: A Model of Legal Creativity and Cooperation,” in Berkman, Paul Arthur, Lang, Michael A., Walton, David W. H., and Young, Oran R., eds., Science Diplomacy: Antarctica, Science, and the Governance of International Spaces (Washington, D.C.: Smithsonian Institution Scholarly Press, 2011), pp. 3950.

6 Today the AT has 29 Consultative Parties, which adopt measures, resolutions, and decisions by consensus at the annual meetings; and 24 Non-Consultative Parties, which can participate in the deliberations but have no vote. These 53 countries represent just over a quarter of the member states of the United Nations, and they include the two most populated countries in the world, China and India. The consultative status of a country depends on its ability to conduct “substantial research activity there.” See Secretariat of the Antarctic Treaty, “Parties,” www.ats.aq/devAS/ats_parties.aspx?lang=e.

7 The grounds offered by the United States and Russia to support their status as potential claimants mostly coincide with the ones presented below, but they also present problems of their own, which I do not examine here.

8 See United Nations General Assembly, Thirty-Seventh Session, 10th Plenary Meeting, A/37/PV.10*, September 29, 1982, p. 132, www.un.org/ga/search/view_doc.asp?symbol=A/37/PV.10. The discussion kept going until the early 2000s.

9 See Vigni, Patrizia and Francioni, Francesco, “Territorial Claims and Coastal States,” in Handbook on the Politics of Antarctica, eds. Dodds, Klaus, Hemmings, Alan D., and Roberts, Peder (Cheltenham, UK; Northampton, Mass.: Edward Elgar Publishing, 2017); and Mel Weber, “Delimitation of the Continental Shelves in the Antarctic Treaty Area: Lessons for Regime, Resource and Environmental Security” in Antarctic Security in the Twenty-First Century: Legal and Policy Perspectives, pp. 172–196.

10 Among many others, see Bernhardt, J. P. A., “Sovereignty in Antarctica,” California Western International Law Journal 5, no. 2 (1974); Conforti, Benedetto, “Territorial Claims in Antarctica: A Modern Way to Deal with an Old Problem,” Cornell International Law Journal 19, no. 2 (1986), pp. 249–58; Hemmings, Rothwell, and Scott, Antarctic Security in the Twenty-First Century; Triggs, Gillian, “Australian Sovereignty in Antarctica – Part I,” Melbourne University Law Review 13 (1981), pp. 123–58; and Triggs, Gillian, “Australian Sovereignty in Antarctica – Part II,” Melbourne University Law Review 13 (1981), pp. 302–33.

11 This is not to say that moral considerations have not been raised by other authors. Alan D. Hemmings, for one, has repeatedly touched upon the issue of the international legitimacy of the ATS, and on the way in which the territorial aspirations of the claimants have hindered progress in terms of governance and regulation. See Alan D. Hemmings, “Security Beyond Claims,” in Hemmings, Rothwell, and Scott, Antarctic Security in the Twenty-First Century, pp. 70–94; and Hemmings, Alan D., “Re-Justifying the Antarctic Treaty System for the 21st Century: Rights, Expectations and Global Equity,” in Powell, Richard and Dodds, Klaus, eds., Polar Geopolitics: Knowledges, Resources and Legal Regimes (Cheltenham, U.K.: Edward Elgar Publishing, 2014), pp. 5573. See also Sahurie, Emilio J., The International Law of Antarctica (New Haven: New Haven Press, 1992). Even though Sahurie's approach is legal, moral issues permeate the book. The contribution this article purports to make to the existing literature is to begin a more methodical appraisal of the different arguments that have (and could) be raised regarding the territorial status of Antarctica. To apply the tools of political philosophy to the Antarctic question promises to deliver conclusions that have been overlooked so far, or that have not been sufficiently examined.

12 Miller, David, “Territorial Rights: Concept and Justification,” Political Studies 60, no. 2 (2012), p. 253.

13 Attempts at systematization from a legal perspective can be found in Prescott and Triggs, International Frontiers and Boundaries, ch. 14; and Sahurie, International Law of Antarctica, ch. 4.

14 Hayes, J. Gordon, Antarctica: A Treatise on the Southern Continent (London: The Richards Press Limited, 1928).

15 See Wilson, Robert E., “National Interests and Claims in the Antarctic,” ARCTIC 17, no. 1 (1964), p. 21; and International Court of Justice, March 16, 1956, “Antarctica Cases (United Kingdom v. Argentina; United Kingdom v. Chile),” The Hague, Netherlands, p. 28.

16 See, respectively, International Court of Justice, “Antarctica Cases,” p. 8; Antarctica New Zealand, “Antarctic Treaty,” www.antarcticanz.govt.nz/environment/policy-and-management/antarctic-treaty/; République Française, “La France et l'Antarctique,” France Diplomatie, www.diplomatie.gouv.fr/fr/dossiers-pays/antarctique/la-france-et-l-antarctique/; Australian Government, “Australian Antarctic Territory Acceptance Act 1933,” www.legislation.gov.au/Details/C2004C00416; Magnus Hovind Rognhaug, ed., Norway in the Antarctic (Tromsø: Norwegian Ministry of Foreign Affairs, 2014), p. 7; Ministerio de Relaciones Exteriores de Chile, Decreto 1747, “Fija Territorio Chileno Antártico” (1940), www.leychile.cl/Navegar?idNorma=1017683; and Fontana, Pablo, La Pugna Antártica: El conflicto por el sexto continente 1939–1959 (Buenos Aires: Guazuvirá Ediciones, 2014), p. 108.

17 In recent years Norway has changed its discourse and now talks about Dronning Maud Land reaching all the way to the South Pole. See Ole Magnus Rapp, “Norge Utvider Dronning Maud Land helt frem til Sydpolen,” Aftenposten, September 19, 2015, www.aftenposten.no/norge/Norge-utvider-Dronning-Maud-helt-frem-til-Sydpolen-28019b.html.

18 The International Geophysical Year was a project of scientific cooperation between Eastern and Western countries that had Antarctica as one of its research objectives.

19 U.S. Department of State, “Antarctic Treaty,” state.gov/t/avc/trty/193967.htm.

20 Hemmings, Alan D., “Considerable Values in Antarctica,” Polar Journal 1 (2012), pp. 139–56, p. 143.

21 “1. Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's rights of or claim or basis of claim to territorial sovereignty in Antarctica. 2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.” Secretariat of the Antarctic Treaty, “Antarctic Treaty” (1959), Article IV, www.ats.aq/documents/ats/treaty_original.pdf.

22 See Brownlie, Ian, Principles of Public International Law, 7th edition (Oxford: Oxford University Press, 2008), p. 130.

23 The two types of grounds coincide to some extent with what historian Patricia Seed has seen as founding the different “ceremonies of possession” by the European powers during the early colonization of America. While relying on official protocols was key for the Spanish, the British prioritized more mundane activities, such as the erection of buildings and actual presence in the place. In the case of Latin American claimants to Antarctica, the use of the principle of uti possidetis iuris could be read as a sign of the Spanish inheritance. The focus on human presence and activity, on the other hand, could be interpreted as a sign of the British influence when it comes to justifying possession. See Seed, Patricia, Ceremonies of Possession in Europe's Conquest of the New World 1492–1640 (Cambridge: Cambridge University Press, 1995), especially chs. 1 and 3. Seed, however, does not pursue a moral evaluation of these different methods.

24 International Court of Justice, “Antarctica Cases,” para. 11–12, my emphasis. Neither Argentina nor Chile recognized the court's jurisdiction.

25 Rognhaug, Norway in the Antarctic, p. 7.

26 See, respectively, Australian Antarctic Division, “Australian Antarctic Territory,” 2017, www.antarctica.gov.au/about-antarctica/australia-in-antarctica/australian-antarctic-territory (my emphasis); and Prescott and Triggs, International Frontiers and Boundaries, p. 386.

27 New Zealand Ministry for Culture and Heritage, “First among Men,” July 22, 2014, nzhistory.govt.nz/politics/Antarctica-and-nz/people.

28 Antarctic expeditions were also carried out by Belgians, Americans, Russians, Swedes, and Japanese.

29 Rognhaug, Norway in the Antarctic, p. 7.

30 Americans were also active, but I omit them here to focus exclusively on the claimants.

31 Alberto L. Daverede, “Política y actividades antárticas de la República Argentina,” Conference Proceedings, Aula de Estudios Antárticos, Madrid (1987), p. 3.

32 de la Barra, Oscar Pinochet, Chilean Sovereignty in Antarctica (Santiago de Chile: Editorial del Pacífico, 1955), p. 32, my emphasis.

33 Tønnessen, Johan Nicolay and Johnsen, Arne Odd, A History of Modern Whaling (London: C. Hurst; Canberra: Australian National University Press, 1982), p. 178.

34 Brownlie, Principles of Public International Law, p. 133.

35 Giving a full account of the arguments from state activity that each country uses to stake their claims would constitute an article of its own. A good summary can be found in Sahurie, International Law of Antarctica, pp. 259–277.

36 Pinochet de la Barra, Chilean Sovereignty in Antarctica, p. 27.

37 See note 16 above.

38 Brownlie, Principles of Public International Law, pp. 142–43.

39 To this, the concept of “geological continuity” is sometimes also added; namely, that the Antarctic Peninsula and mountain range is a prolongation of the Chilean Andes. See Wilson, “National Interests and Claims in the Antarctic,” p. 23.

40 Brownlie, Principles of Public International Law, p. 143.

41 For an extended criticism of the application of the sector principle in Antarctica, see Auburn, Francis M., Antarctic Law and Politics (Bloomington: Indiana University Press, 1982), pp. 2331.

42 Grotius, Hugo, The Rights of War and Peace, ed. Tuck, Richard (Indianapolis: Liberty Fund, 2005), see especially Book II, chs. 2 and 3.

43 For the individualist version, see Locke, John, Two Treatises of Government, ed. Laslett, Peter (New York: Cambridge University Press, 1988); and Simmons, A. John, “On the Territorial Rights of States,” Philosophical Issues 11, no. 1 (2001), pp. 300–26. For the collectivist version, see Nine, Cara, Global Justice and Territory (Oxford: Oxford University Press, 2012).

44 Kolers, Avery, Land, Conflict, and Justice: A Political Theory of Territory (New York: Cambridge University Press, 2009).

45 David Miller, “Territorial Rights: Concept and Justification.”

46 Moore, Margaret, A Political Theory of Territory (New York: Oxford University Press, 2015).

47 The other main type of normative theories of territorial rights is function-based. These justify territorial claims in terms of certain functions that the territorial agent (typically, the state) fulfills—like securing the basic human rights of its members or establishing property laws that comply with some basic legitimacy conditions. See Buchanan, Allen, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004); and Stilz, Anna, “Why Do States Have Territorial Rights?International Theory 1, no. 2 (2009), pp. 185213. For functionalists, then, the link between the people and the territory is a contingent fact: what matters is that a people have “a” (rather than “this” or “that”) territory to enable their state to fulfill important functions for them. They thus tend to focus on the present and future rather than the past. Because the Antarctic claims here examined are all special claims to “this” rather than “a” territory, I leave aside function-based theories for the purposes of the analysis. They will reenter, however, toward the end of the article.

48 Note that I am not dealing here with the more fundamental and thornier question of whether it is morally meaningful to become the owner and/or sovereign of a geographical space just by virtue of doing certain things in it. Even if, for the purposes of the discussion, we assume that this makes sense, the problem still remains of how to fix the borders of that appropriation.

49 Not to be confused with the better-known “boundary problem,” which regards the issue of delimiting democratic polities. See Whelan, Frederick G., “Prologue: Democratic Theory and the Boundary Problem,” Nomos XXV: Liberal Democracy (1983), pp. 1347.

50 Simmons, A. John, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), p. 268, emphasis in original.

51 Ibid., p. 276, emphasis in original.

52 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 174–75. To get a picture of the magnitude of the claims, notice that four of the seven claimants claim areas that are vastly larger than their own metropolitan territories: Chile and New Zealand claim a territory almost twice their size, the United Kingdom claims a territory six times its size, and Norway claims a territory seven times its size (if one interprets its claim as extending all the way to the South Pole).

53 “It is not due to accident that not a single State can effect the occupation even of those Polar islands that are adjacent to its coast in a more ‘effective’ manner than through the establishment of small posts and a periodic patrol by avisoes, etc. Therefore, considering Polar conditions, the form of occupation practiced today by Polar States is all that can be ‘reasonably required.’” Lakthine, W., “Rights over the Arctic,” American Journal of International Law 24, no. 4 (1930), p. 710.

54 Antarctic imperialism is a topic that has been well examined by scholars in international relations, geopolitics, and history. See, for example, Dodds, Klaus J., “Post-Colonial Antarctica: An Emerging Engagement,” Polar Record 42, no. 1 (2006), pp. 5970; and Shirley Scott, “Three Waves of Antarctic Imperialism,” in Dodds, Hemmings, and Roberts, Handbook on the Politics of Antarctica, pp. 37–49. However, while the focus has been to criticize Antarctic imperialism, not much has been said of where this should leave us today, in a context where these practices are no longer acceptable.

55 For an account of Antarctica as a “resource frontier,” see Howkins, Adrian, The Polar Regions: An Environmental History (Cambridge, U.K.: Polity, 2016), p. 47.

56 Kolers, Land, Conflict, and Justice, p. 76.

57 Grotius, Hugo, The Free Sea (Indianapolis: Liberty Fund, 2004), p. 16.

58 Waldron, Jeremy, “Superseding Historic Injustice,” Ethics 103, no. 1 (1992), pp. 428.

59 The principle of continuity was invoked by colonial powers in Africa to justify control of the hinterland (the regions lying inland from the coasts), while the principle of contiguity was used to justify claims to land separated by water from the territory of the claimant state. See Heron, David W., “Antarctic Claims,” Foreign Affairs 32, no. 4 (1954), p. 663.

60 Auburn, Antarctic Law and Politics, p. 27.

61 Other entities might include, for example, NGOs such as the Antarctic and Southern Ocean Coalition or organizations such as the Scientific Committee on Antarctic Research.

62 “Preamble,” Antarctic Treaty.

63 An interesting question to ask here is whether Antarctica should become a state of its own. The challenge, of course, would be to figure out who the Antarctic demos would be. For a proposal of increased human settlement and political engagement in Antarctica (albeit without full sovereignty), see Abdel-Motaal, Doaa, Antarctica: The Battle for the Seventh Continent (Santa Barbara, Calif.: Praeger, 2016).

64 The lack of participation is especially serious in the case of African countries, of which only South Africa is a party to the treaty.

* I am very grateful to Alfonso Donoso for extensive comments on previous versions of this article. I would also like to thank Megan Blomfield, Kerstin Reibold, Chris Armstrong, and Andreas Føllesdal for written feedback, José Retamales for the illuminating conversations on the topic, and the audiences at the following venues: the “Territorial Rights and Rivers” Workshop, University of Cork; the “Territorial Challenges” Conference, Université du Québec à Montréal; the CSMN Final Conference and “Political Philosophy Looks to Antarctica” Workshop, University of Oslo; and the Political Science Seminar and Seminar on International Legal and Political Theory, University of Oslo. I also thank NorLARNet for financing the Workshop “Norway, Chile, and Argentina as Original Claimants and Current Guardians of Peace, Science, and Environmental Protection in Antarctica,” University of Tromsø, where an earlier version of this article was presented. Finally, I thank the editors and anonymous reviewers of Ethics & International Affairs for giving me substantial feedback, and Hannah Monsrud Sandvik for her research assistance. This work has been financially supported by the Research Council of Norway, as part of the research project “Political Philosophy Looks to Antarctica.”

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