Introduction
The Antarctic Treaty System (ATS), which is composed of the four key treaties and associated measures and institutions governing the Antarctic continent and adjacent areas of the Southern Ocean, is a successful example of international governance. Among other things, the 1959 Antarctic Treaty settled concerns over the “problem of Antarctica”, that is, the potential for international conflict over the seven sovereignty claims. In particular, the three overlapping claims in West Antarctica had the potential for sparking military conflict and led to the filing of international legal proceedings in the International Court of Justice (ICJ). In addition, the USA and the Soviet Union had histories of Antarctic exploration which gave rise to potential territorial claims elsewhere in Antarctica, including areas claimed by other states and the unclaimed sector of Marie Byrd Land. There was also concern about the possible militarisation of Antarctica following the International Geophysical Year of 1957–1958. For example, Australia was concerned that Soviet Union activities in East Antarctica presented a security threat to the Australian continent and its southern maritime approaches. However, after 60 years of operation, the Antarctic Treaty has prevented international discord over sovereignty and militarisation of the Antarctic. If the effectiveness of the ATS is measured against the mandate of Article I of the Antarctic Treaty, which establishes that “Antarctica shall be used for peaceful purposes only” and “shall not become the scene or object of international discord”, it can largely be viewed as a governance success.
The ATS has shown significant institutional resilience in responding to new governance challenges. Young (Reference Young2010) describes the ATS as demonstrating a history and institutional dynamic of “punctuated equilibrium”. That is, since its inception with the 1959 Antarctic Treaty, the ATS has developed beyond managing sovereignty and security issues to include marine resource management (through the 1972 Convention on the Conservation of Antarctic Seals (CCAS) and 1980 Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention)), environmental impact assessment, pollution control, waste disposal, invasive species control, heritage protection and area management (through the 1991 Protocol on Environment Protection). Young (Reference Young2010) points out that such institutional development has been “punctuated” in the sense that it has periodically responded to governance challenges (e.g. an expansion in Soviet krill fishing during the 1970s) by the development of new treaties (e.g. the CAMLR Convention) to manage these challenges, but still maintained the Treaty’s core principles. It is important to consider ways that the ATS can continue displaying this punctuated equilibrium of institutional development in new contexts.
The ATS is currently experiencing a range of fresh challenges from outside the Antarctic Treaty area that will likely call for further institutional development and governance responses. The first of these challenges is biophysical, but heavily driven by the social and industrial systems of the global economy. As Young (Reference Young2010) points out, some of the most pressing current Antarctic challenges are caused by global environmental pressures, such as anthropogenic climate change, that originate from activities largely outside the Antarctic Treaty area, and for which the ATS has limited capacity to influence. As Stephens (Reference Stephens2018) and McGee and Haward (Reference McGee and Haward2019) argue, the ATS and associated organisations such as Scientific Committee on Antarctic Research (SCAR) can act as effective conduits for the transmission of scientific knowledge to decision-makers within the global climate regime, but have limited capacity to reduce greenhouse gas emissions and prevent climate change impacts on the Antarctic Treaty area.
The second challenge is the return of significant great power competition to international politics. The post-cold war period of US dominance in the international system has shifted to a more complex situation. Importantly, the last three decades have seen a remarkable rise in the economic and political power of China, which many commentators of international politics are now viewing as a new challenge for the international system (Agnew, Reference Agnew2003, Reference Agnew2010; Kennedy, Reference Kennedy1996; Li et al., Reference Li, Zhang, Chen, Chen, Xiaogang Deng, Deng and Zhang2009; Wasserstrom, Reference Wasserstrom2013). China’s new-found political and economic power is seen in more assertive positions taken in international institutions, particularly on issues central to China’s security and economic interests, such as control of adjacent maritime approaches (“China’s assertiveness in the South China Sea”, 2016). Antarctica is clearly not as central to China’s national interests as, say, international trade or maritime issues in areas such as the South China Sea. However, it has been suggested that China views the polar regions, including the Antarctic and the Southern Ocean, as important areas for future resource extraction (Brady, Reference Brady2017). Liu (Reference Liu2020a) argues that rising Chinese economic and political power is driving a desire of Chinese policymakers to reshape international law and institutions to be more aligned with Chinese interests. Liu (Reference Liu2020a) suggests that Antarctic governance is likely to be affected by these developments in international politics. However, Liu (Reference Liu, Spohr and Hamilton2020b) also argues that in pursuing its national interests, China could move beyond an extractive resource approach to a broader vision for environmental protection of the polar areas. If the goals of Chinese policy are indeed still open to leadership in polar environmental protection, the outcomes of Chinese influence on Antarctic governance might therefore be different than first expected. It is important to keep open the possibilities for Chinese leadership on environmental protection in the polar regions, if they indeed exist.
However, it is important to also keep in mind that global great power competition is not an unfamiliar background condition for Antarctic governance. The Antarctic Treaty 1959 was formed during a heightened period of great power competition between the USA and the Soviet Union. The key treaties that followed (CCAS, CAMLR Convention and the Madrid Protocol) were also formed during this cold war period. This history of Antarctic governance shows that significant international cooperation and institutional development are possible during such periods of great power competition. While the recent great power competition between the USA and China might be unfamiliar for those accustomed to the relative stability of US dominance in the immediate post-cold war, it should not necessarily signal a retreat to a more conflictual and unproductive period in Antarctic governance.
This paper focuses upon the second of these challenges, that is, governance of Antarctica in the context of a shifting global international order. The paper examines a case study of two issues causing political tension within the ATS over the past eight years and looks at one possible strategy for resolution. The first of these issues is the Australian-led proposal under the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Conservation Measure 91-04 for the establishment of several marine protected areas (MPAs) off East Antarctica. While this proposal received widespread support within CCAMLR, it has been unable to overcome objections from China, the Russian Federation and, to a lesser extent, Ukraine and Japan. The proposal for these MPAs remains on the CCAMLR agenda, but many commentators consider that the negotiations have reached a deadlock. The second issue is a Chinese proposal under Annex V of the 1991 Protocol on Environmental Protection to the Antarctic Treaty for the establishment of special management arrangements in the areas around Kunlun station located on Dome A in East Antarctica. The Chinese delegation at the yearly Antarctic Treaty Consultative Meeting (ATCM) first introduced the idea of an Antarctic Specially Managed Area (ASMA) around Kunlun in 2013. However, after repeatedly failing to receive support, the proposal has been re-configured as a “code of conduct” for the area around the station. Several states have reservations about the revised proposal as China is the only country operating in that area. Due to the consensus decision-making practice of the ATCM, China’s proposals for a code of conduct similarly stalled. These two issues have been selected as a case study as they share the common characteristics of: (i) being prominent political tension points within current ATS negotiations; (ii) have China as a central player potentially influenced by the wider shifts in international politics discussed above and (iii) involve Australia as a central player in Antarctic affairs. The following analysis is directed to the wider group of scholars and policymakers interested in the current dynamics of Antarctic governance and particularly Australian and/or Chinese policymakers and stakeholders in Antarctic affairs.
In analysing this case study, the paper adopts the lens of negotiation theory. Theories of negotiation (Lax & Sebenius, Reference Lax and Sebenius1985; Sebenius, Burns, & Mnookin, Reference Sebenius, Burns and Mnookin2018; Susskind, Ali, & Hamid, Reference Susskind, Ali and Hamid2014) and rationalist analyses of international law (Eldar, Reference Eldar2008) both suggest that the parties involved in negotiation across a number of issues should consider the joint gains from cooperation that can arise from the practice of “logrolling”, that is, the trade of mutual decision-making support across issue areas. For example, a party might agree to support another party in one decision-making context, in return for similar support in another. Through a logrolling strategy, the parties can avoid deadlock in which both parties fail to achieve their objectives. The corollary is that compromise and cooperation allow both parties to succeed in meeting their aims. Sebenius (Reference Sebenius1984) explains that a logrolling strategy employed by negotiating blocs for developed and developing countries allowed an agreement on the extensive number of issues agreed within the 1982 United Nations Convention on the Law of the Sea (LOSC). This was particularly evident in developed nations’ concern for freedom of naval operations and coastal state developing country concerns over rights over coastal marine resources. Susskind (Reference Susskind2014) provides a prominent logrolling example with the 1990s “debt-for-nature swaps” between developed and developing countries. Rather than repayment of developing countries’ debt and protection of developing countries’ environments being treated as separate issues in international negotiations, agreements known as “debt-for-nature swaps” allowed developed countries to provide debt relief in return for developing countries implementing domestic conservation programmes to improve environmental outcomes (Susskind et al., Reference Susskind, Ali and Hamid2014). Both countries avoided a deadlock in negotiating each issue independently and thereby achieve joint gains from cooperation that might otherwise have been unable to be achieved.
This paper seeks to further discussion of Antarctic diplomacy by asking whether a “logrolling” strategy should be considered as a means of resolving differences within the ATS. The issue was raised in two pieces from Liu (Reference Liu2019a) and Press (Reference Press2019) in relation to East Antarctic MPA and Dome A area management issues. We examine this point further by identifying the risks and opportunities of a logrolling strategy being employed for these two issues and proceed on the basis that any logrolling strategy would involve Australia and China providing mutual decision-making support across the two issue areas within the relevant forums of the ATS.
The Antarctic Treaty has been in place for nearly 60 years and has undergone significant institutional development without overt conflict between the parties. No differences have led to the use of compulsory dispute resolution mechanisms or adjudication. The dispute resolution panel established under the Madrid Protocol has never been used, and the Antarctic Treaty and CAMLR Convention have generated no litigated disputes. The Whaling in the Antarctic case (Australia v. Japan: New Zealand intervening) before the ICJ was under the International Convention for the Regulation of Whaling (IWC), so not within the ATS. The only example of an Antarctic dispute brought to an international court or tribunal can be found in the pre-Antarctic Treaty era, when the UK tried to bring Argentina and Chile before the ICJ. The ATS has been viewed by some as an exceptional success that serves as an example for other areas of global governance (Berkman, Reference Berkman2010). Questions may therefore be raised as to whether Antarctic governance might be an exception to any general tendency to consider logrolling within international negotiations. Similarly, the shifting international political landscape might give a reason for caution for implementing a logrolling strategy, as it may challenge or erode ATS norms. Further, there may be different risks between a logrolling strategy between issues solely being dealt with within ATS forums, as compared to issues relevant to the Antarctic Treaty area but governed by institutions and agreements outside the ATS.
This paper proceeds as follows. The section “MPAS and DOME A” provides background on the case study material on the East Antarctic MPA and Dome A management proposals. The section “Logrolling in negotiation theory” raises ideas from negotiation theory on how logrolling of these issues might allow for pragmatic compromise for the key states involved (Australia and China). In the section “Logrolling and compliance within the ATS”, drawing on theories that seek to provide an explanation of state behaviour regarding treaty obligations, we consider explanations for the apparent high levels of adherence to the norms of the ATS and how this might be affected by a logrolling strategy. In the section “Lack of history of logrolling within the ATS”, we raise the lack of history of logrolling activity within the ATS. We conclude in the final section by noting while arguments might be made under general theories on negotiation for logrolling across issue areas for states to avoid diplomatic deadlock, this general statement needs to be approached with some caution in the context of the ATS.
MPAS and Dome A
Proposal for the establishment of MPAs in East Antarctica
In 2002, CCAMLR committed to creating a network of MPAs following recommendations from the United Nations World Summit on Sustainable Development. Nine years later, Australia’s proposal for a framework for the establishment of MPAs was adopted as CCAMLR Conservation Measure 91-04 with acclamation. To assist in creating this network of Southern Ocean MPAs, the CAMLR Convention Area was divided into nine MPA planning domains. These were formed for planning and reporting on the development of MPAs and to organise future activities related to this effort.
With the establishment of the South Orkney Islands MPA in 2009, CCAMLR made its first step towards establishing a network of MPAs in the Convention Area. That MPA was proposed by the United Kingdom and is just under 94,000 square kilometres in an area within Planning Domain 1. The South Orkney MPA was aimed at the conservation of biodiversity and improving the coordination of scientific research activities in the CCAMLR Subarea 48.2. Negotiations on the establishment of further MPAs in the CCAMLR area have been more complicated. In 2016, CCAMLR adopted a second MPA in the Ross Sea area. The Ross Sea MPA proposal was originally introduced by both the USA and New Zealand in 2012 and it came into force on 1 December 2017. The MPA area covers 1.55 million square kilometres within CCAMLR Planning Domain 8.
Since 2012, three other MPA proposals have been discussed within CCAMLR, but have failed to reach consensus. A proposal for a conservation measure establishing a representative system of MPAs in the East Antarctica planning domain was originally submitted by Australia, France and the European Union in 2011 (the other two proposals recommended the establishment of new MPAs in the Weddell Sea and in the Western Antarctic Peninsula). The proposal was for seven MPAs (Gunnerus, Enderby, MacRobertson, Prydz, Drygalski, Wilkes, D’Urville Sea–Mertz) each forming a representative area with specific conservation objectives and in total covering approximately 1.9 million square kilometres of ocean. The East Antarctic MPA proposal failed to reach a consensus at the annual CCAMLR meeting in 2012. A Special Meeting was held in Germany in mid-2013 to further discuss the MPA proposals for the Southern Ocean but concluded with the same result. Since 2013, the East Antarctic MPA proposal has been revised several times, introducing changes such as in the activities allowed within the MPAs and their geographical scope. The areas under discussion during the CCAMLR meeting in 2019 were reduced from the initial seven to three representative areas (MacRobertson, Drygalski and D’Urville Sea–Mertz) covering some 1 million square kilometres of ocean. Despite all these amendments, China and Russian Federation maintained their objections.
China has been hesitant in supporting the establishment of MPAs in the CCAMLR area (Liu, Reference Liu2019b). The adoption of the South Orkney Islands MPA did not cause any inconvenience for China, as it did not interfere with fishing interests (Brooks, Crowder, Österblom, & Strong, Reference Brooks, Crowder, Österblom and Strong2020). The adoption of the Ross Sea MPA was a difficult negotiation. China only agreed to the adoption of the measure after a reduction of 40% of the original geographical scope, the addition of a krill research zone and a time-limited duration of 35 years. Nevertheless, China argues that a separate Research and Monitoring Plan approved by CCAMLR is required for the MPA to become fully operational (Liu, Reference Liu2019b).
The Chinese delegation has claimed that to create a new MPA, the threat of serious or irreversible damage to Antarctic marine living resources must be previously identified by scientific evidence and, in any event, the strong management measures that already exist in the CCAMLR area make the establishment of new MPAs unnecessary (CCAMLR, 2014). In China’s view, MPAs should not interfere with the exercise of the States’ general high seas right to fish established under Article 87 of the LOSC within the CCAMLR area. China’s objection to the East Antarctic MPA proposal might therefore be linked to its interests in the expansion of krill fishing in this region (Liu & Brooks, Reference Liu and Brooks2018). Other commentators suggest that the Chinese desire to not limit krill fishing potential in the East Antarctic should also be considered a part of geopolitical power projection (Liu, Reference Liu2019b). It would not be the first time that China has taken the opportunity to position itself in this way as a polar power (Brady, Reference Brady2017).
China’s proposal for area management at Kunlun station, Dome A
China’s interest in Dome A is not new. It is an area of some 19,000 km2 located in the hinterland of the East Antarctica plateau and includes the highest point on the Antarctic Ice Sheet at 4093 m above sea level. Since the 13th Chinese Antarctic Research Expedition (CHINARE) in 1996/1997, China has promoted its inland ice shelf research expeditions in East Antarctica. Departing from the coastal Zhongshan Station, Chinese researchers arrived for the first time at the summit of Dome A during the 21st CHINARE (2004–2005) (ATCM, 2005). During the expedition, a series of activities such as astronomical observations and ice core drilling was performed; however, the main purpose was to analyse whether it would be possible to establish a Chinese summer scientific research station.
This idea for a Chinese research station did not take long to materialise. At the ATCM XXX–CEP X in 2007, China circulated a note to all Committee for Environmental Protection (CEP) members stating that it would set up a new summer station at Dome A. The proposal claimed that the Dome A Region is, among other things, “an ideal site for supporting a series of field scientific research work on glaciology, climatology and astronomy, and deep-drilling of ice cores with an age exceeding one million years”. With unique geographic and natural conditions, Dome A is a good experimental site for science in specialist fields such as low-temperature engineering materials, telecommunication technologies and human medical sciences under extreme conditions (ATCM, 2008). After discussions at the 2008 open-ended contact group (ICG) established under the CEP’s intersessional procedures, construction of Kunlun station was completed in January 2009 to mark the 25th anniversary of CHINARE (ATCM, 2009). The station has an area of 240 m² and accommodates up to 28 personnel. Kunlun station is located in the Australian claimed area of East Antarctica, and Australia raised no environmental or other issues regarding the establishment of the station. Moreover, cooperation between the Australian Antarctic programme and CHINARE is usual. For instance, during the 27th CHINARE, an Australian emergency team was crucial to save the life of the doctor of the Chinese expedition who suffered from severe symptoms of altitude stress.
Chinese proposals for area management around Kunlun started commenced in 2013. At the ATCM XXXVI–CEP XVI, China introduced a proposal and the draft management plan for an ASMA at Dome A (ATCM, 2013). The proposal claims it is essential to have advanced planning and management for the Dome A area for better protection of its scientific and environmental values and to assist Kunlun station to play a key role in supporting scientific activities as an important international cooperation platform. To obtain the consensus of the countries present, China needed to convince the CEP and the ATCM that the Madrid Protocol supported the formation of an ASMA at Kunlun station. Article 4 (1) of Annex V to the Madrid Protocol provides:
Any area, including any marine area, where activities are being conducted or may in the future be conducted, may be designated as an Antarctic Specially Managed Area to assist in the planning and co-ordination of activities, avoid possible conflicts, improve co-operation between Parties or minimise environmental impacts.
Moreover, Art 4(2) states:
Antarctic Specially Managed Areas may include: (a) areas where activities pose risks of mutual interference or cumulative environmental impacts; and (b) sites or monuments of recognised historic value.
During four rounds of intersessional informal discussions, Argentina, Australia, France, Germany, New Zealand, Norway, United Kingdom, and the USA offered suggestions and expressed concerns. Several Consultative Parties, including Australia and France, argued that the purpose of establishing an ASMA is to co-ordinate activities carried out by more than one State in an area. Even though other Parties may conduct activities in Dome A in the future, China has been the only member State working in the area to date.
Despite China claiming that its proposal was consistent with Article 4 of Annex V to the Madrid Protocol, from the first round of discussions at the CEP there was clear concern from other Antarctic Treaty Consultative Parties about whether an ASMA was appropriate for the Dome A region, given that no other state was active in the area. During intersessional informal discussions, eight States put forward their views, largely focusing on issues such as the protected values, number of operators, conflict of activities, appropriateness, alternative measures, as well as interpretation and application of Article 4 of Annex V to the Protocol. Several Consultative Parties were again concerned about allowing the creation of an ASMA in an area where activities are carried out by only one Party. Brady (Reference Brady2017) suggested that it may also be interpreted as granting China a certain status of “soft-sovereignty” or “soft-presence” over territory within Antarctica (Brady, Reference Brady2017). This concept of “soft sovereignty” relies on the idea that ASMAs and ASPAs can be used by claimant States as means to consolidate their occupation of Antarctica, and for potential claimant states to lay the groundwork for future territorial claims (Brady, Reference Brady2017). This is hypothetical and unlikely. It pre-supposes that accommodations of Treaty Article IV will ultimately fail, notwithstanding that Article IV provides that nothing done during the life of the Treaty can have the effect of establishing or enhancing a territorial claim. It is therefore improbable that Treaty states would rely on the designation of ASMAs and ASPAs to bolster territorial aspirations.
Despite such improbabilities, Brady argues that China considers protected areas as a form of sovereignty (Reference Brady2017), although few other authors have put forward such ideas. Nevertheless, this is fertile ground for speculation because Dome A is a strategically satisfying and symbolic point to occupy. If it can be argued that China’s aspirations for protected area arrangements at Kunlun are driven by sovereign aspirations contrary to Article IV, then it would also be open to accuse Australia of objecting to China’s proposal solely on the grounds that Dome A is in the Australian Antarctic Territory. The latter is highly unlikely because, if it were true, then Australia would have objected to multiple other developments by multiple states within the AAT over several decades. In any event, such objections would be rendered meaningless under the terms of Article IV of the Antarctic Treaty. Were Australia to argue that objections on such grounds are valid, then Australia would be conceding that the numerous past objections to Australia’s maintenance of its territorial claim are equally valid (and, equally improbably, it would expect that other territorial claimants would likewise accept that objections to their claims are valid). Apart from there being no evidence of a sovereign dimension to these disagreements over the ASMA issue, introducing sovereign aspirations or protections as factors in the current deadlock and its resolution would be a “zero sum game” completely out of step with ATS norms. The notional sovereign dimension is therefore not further explored here.
The lack of consensus at the 2013 ATCM did not allow the adoption of the Chinese proposal of the management of Dome A through the establishment of an ASMA. Nevertheless, several Consultative Parties, including Australia and France, stated that China’s national procedures provided a strong basis for the appropriate management of Chinese activities and personnel at Dome A and the content of the draft ASMA management plan would be a relevant reference point for management measures that could be applied through China’s national processes. The USA expressed the view that it was not the ideal time for an ASMA designation at Dome A and suggested national management of Dome A activities (ATCM, 2017).
After failing in four intersessional periods (2013/2014–2015/2016) to obtain consensus on the ASMA proposal, in 2016 China introduced to the CEP and ATCM a proposal for a “Code of Conduct for the Exploration and Research in Dome A Area in Antarctica” (ATCM, 2017). Unlike ASMAs and ASPAs, codes of conduct have been developed as guidelines for conducting a specific Antarctic activity such as the case of the “Environmental Code for Participants in the Australian Antarctic Program” and the “Environmental Code of Conduct for Fieldwork in the McMurdo Dry Valleys”. However, in all cases these have been codes of conduct for domestic administrative use by the operator of the relevant Antarctic programme. They have no mandatory application to the nationals of other Parties (however, visiting scientists may voluntarily adopt the practices, out of good sense or respect). It is therefore quite in order for China to develop a code of conduct for activities of its nationals around Kunlun station, but it should not purport to apply it to others.
Nevertheless, the Chinese proposal for a code of conduct for managing the Dome A area was not well received. The Australian Department of Foreign Affairs spokesperson commented that Australia rejected the proposal as a code of conduct cannot bind third States and has no formal standing within the ATS (any more than any other code of conduct, such as for tourism) (Gothe-Snape, Reference Gothe-Snape2019). In addition, China cannot “intend to pose any potential restrictions for scientific activities in Dome A” as the Treaty allows for freedom to conduct scientific research (ATCM, 2018). The only Treaty mechanism to deal with overlapping activities is through an ASPA or ASMA. As Rothwell argues, “a code of conduct that sought to apply to anyone other than Chinese scientists and support staff would be seen as an assertion of sovereignty” (Gothe-Snape, Reference Gothe-Snape2019). Under these circumstances, the code of conduct proposal could not obtain consensus during the last two consultative meetings in 2018–2019. China’s proposals for, initially, an ASMA and then a code of conduct have so far failed. This is because an ASMA is intended to manage activities likely to create mutual interference (not relevant at Dome A because there is no other operator), and because a code of conduct cannot purport to apply to other states. Thus, like the proposals to establish East Antarctica MPAs, China’s proposals for the Dome A area have stalled.
“Logrolling” in negotiation theory
Decisions within the ATS are taken by consensus. This means that any consultative party to the Antarctic Treaty, or contracting party to the CAMLR Convention, can “veto” any impending decision. In the section above, we discussed how Australia and China’s respective proposals, for an MPA in East Antarctica and an ASMA/code of conduct for the Dome A area, are currently grid-locked by lack of consensus within CCAMLR and the ATCM. This situation raises the question of whether consideration should be given to either formally or informally either (i) linking the two issues in negotiations or (ii) trading support or concessions across the issue areas, as a means of resolving this deadlock. As discussed above, any logrolling strategy would involve either formal or informal linking of discussion of the two issues and agreement for providing reciprocal support in the two decision-making forums of the ATS. It is to this possibility that our analysis turns.
Theory has previously proved useful in unpacking problems in Antarctic governance. Several variants of international relations theory have been used to shed light on issues in Antarctic governance. This includes the strong use of interest-focused, rationalist, game theoretic (van der Lugt, Reference van der Lugt1997) approaches (Joyner, Reference Joyner1998), along with more pluralist regime theory approaches that also incorporate insights from norm-focused, constructivist approaches (Stokke & Vidas, Reference Stokke and Vidas1996; Young, Reference Young2010) and lower scale commons management (Buck, Reference Buck1998). While these studies provide a rich vein of analysis of Antarctic governance, it is more accessible to those coming from an International Relations or commons management background.
With a view to a wider audience, in the following analysis we draw on the broad interdisciplinary field of negotiation theory. Negotiation theory shares a similar game theoretic lineage of the more rationalistic regime theory approaches. It seeks to use rationalist assumptions to provide broad principles applicable to negotiations occurring at various scales and contexts of human interaction. The “Program on Negotiation” (PON) located at Harvard Law School, Massachusetts Institute of Technology and Tufts University has been a centre of negotiation theory through key figures such as Sebenius (Lax & Sebenius, Reference Lax and Sebenius1985; Sebenius, Reference Sebenius1983, Reference Sebenius1984, Reference Sebenius1991, Reference Sebenius1992; Sebenius et al., Reference Sebenius, Burns and Mnookin2018), Susskind (Dinnar & Susskind, Reference Dinnar and Susskind2019; Susskind, Reference Susskind2014; Susskind et al., Reference Susskind, Ali and Hamid2014) and Ury (Fisher, Ury, & Patton, Reference Fisher, Ury and Patton2011; Ury, Reference Ury1993, Reference Ury2007). Negotiation theory has developed strategies for unlocking negotiations through different strategies (Raiffa, Reference Raiffa1982; Sebenius, Reference Sebenius1983).
For instance, Young (Reference Young1989) (from outside the PON) has analysed problem-solving options for international environmental negotiations within the model of institutional bargaining. One of the classic strategic moves offered by negotiation theory is for the parties to expand the range or type of issues considered in a negotiation (Sebenius, Reference Sebenius1983; Sebenius et al., Reference Sebenius, Burns and Mnookin2018; Susskind et al., Reference Susskind, Ali and Hamid2014). For instance, Wallace claims that “linkage between unrelated, or only loosely-related, issues to gain increased leverage in negotiation is an ancient and accepted aspect of diplomacy” (Reference Wallace1976). Similarly, Poast comments:
Issue linkage—the simultaneous discussion of two or more issues for joint settlement—is a bargaining tactic used by states to achieve two objectives. First, issue linkage increases the probability of agreement. This is because linkage can create benefits for those parties who would otherwise find an agreement to be of little value. Second, issue linkage motivates states to remain committed to an agreement (Poast, Reference Poast2013).
By linking negotiation of two or related issues, or two regimes established for the governance of distinct substantive areas (“specific issue linkage”), in theory it is possible to reach agreement on relatively narrow questions and avoid deadlocks (Leebron, Reference Leebron2002). Susskind argues that issue linkage in negotiation theory is more usefully thought of in terms of a trade that benefits both sides and he uses “debt-for-nature swaps” as a key example of this strategy (Reference Susskind2014). By linking two different issues—environment and debt—parallel gains could be achieved by both sides (Hansen, Reference Hansen1989). Developed countries succeeded in implementing an environmental protection agenda in developing countries by granting debt reliefs to these countries.
Linking disparate issues in a negotiation can open the possibility for the international equivalent of a “logrolling” strategy (Sebenius, Reference Sebenius1983; Young, Reference Young1989). The term “logrolling” was developed in the US domestic legislative process, where political opponents agreed on providing reciprocal voting support for each other’s legislation, for both to obtain their preferred legislative outcomes. Logrolling therefore refers to two (or more) interest groups trading their mutual decision-making support across issue areas, so both can get benefits that would otherwise not be achievable. A logrolling strategy is one way to reach consensus among parties with roughly equal authority who have mutual veto power. Eldar argues that logrolling should be considered as a type of vote-trading that might be applied across international institutions, particularly between trade issues and other issue areas (Reference Eldar2008). A logrolling strategy can involve promises of reciprocal voting support within the same institution (i.e. “internal logrolling”), or a promise of voting support in one institution in exchange for voting support in another institution (i.e. “external logrolling”) (Eldar, Reference Eldar2008). Logrolling might therefore be best thought of as a specific type of issue linkage in negotiations.
Determining the opportunities and limits of a logrolling strategy is challenging. As an opportunity, Sebenius argues that states might understand issues for negotiation as types of commodities by which they (like traders in a market) can seek to optimise their overall utility. Logrolling might therefore be viewed by states as an efficient negotiation strategy for reaching an agreement where all parties can move towards a position where their overall utility is maximised (Sebenius, Reference Sebenius1983; Tollison & Willett, Reference Tollison and Willett1979). If the parties trade their decision-making support, the “zone of possible agreement” between the parties is expanded and their mutual utility can be optimised without any reduction in the utility of the other party.
However, a logrolling strategy also has some significant limits. It increases not only the scope of the negotiations but also the complexity and hence the risk of failure. As Susskind comments any opposition to logrolling must be “on their merits” (Reference Susskind2014). A logrolling strategy must be legitimised by either a functional or causal connection between issues. With the absence of legitimacy, logrolling is likely to be rejected. Whether the parties will accept logrolling rests on the impact it has on the long-term relationship of the parties (Susskind et al., Reference Susskind, Ali and Hamid2014). Logrolling can potentially erode the existing rules and norms of the institutions involved, or the degree of commitment to those institutions, and the enforcement mechanisms to which the parties are willing to agree (Leebron, Reference Leebron2002). By treating the interpretation and application of rules and norms instrumentally, as instruments of negotiation in trading decision-making support, the parties may undermine the regime by changing the nature of the rules. It is necessary to consider whether a logrolling strategy, while it might benefit national interests in the short term, may erode the collective good of existing institutions in the long term (2008).
While Australia and China might appear to be the main protagonists in the East Antarctic MPA and Dome A area management issues, it would be inaccurate to characterise the current situation as a stalemate between only these states. It is important to keep in mind that the consensus decision-making practice within the ATCM and CCAMLR means that any resolution of the two issues would require acceptance by all the ATCPs or all the members of the CCAMLR Commission, not just Australia and China. Consensus means the absence of formal objection. Accordingly, to resolve these two issues will require that all members of the Commission be supportive (or at least not object) to the declaration of a new East Antarctic MPA, and all ATCPs would need to be supportive (or at least not object) to special management arrangements around Kunlun. Previous experience has shown that more than one party can share the position of another, but remain silent in the debate, thus “hiding” behind the proponent party and allowing them to take the lead (and the heat) on an issue. On the other hand, other states may remain silent as they have no interest in the outcome, one way or the other. Thus, positions for, against or ambivalent may not be revealed until the decision point arrives and the existence of consensus is tested. It is also important not to assume that the states supporting an East Antarctic MPA are the same states that oppose special management arrangements at Dome A.
While Australia and China might consider the possibility of logrolling to come to some sort of mutual accommodation on these issues, there is no certainty that other states would remove their objections. No amount of bilateral logrolling can guarantee consensus of all of the Parties whose consent is required. Multilateral logrolling to ensure a result would be fraught with complexities. That said, the following analysis proceeds on the plausible assumption that as Australia and China are the key proponents for the East Antarctic MPA and Kunlun proposals, any mutual decision-making support (i.e. promises of reciprocal voting) across these issues would carry persuasive weight in efforts to achieve consensus within the ATCM and CCAMLR.
Logrolling and compliance within the ATS
As discussed above, the ATS is widely viewed as one of the most successful examples of international environmental governance (Young, Reference Young2010). Many authors point to the formation of the Antarctic Treaty in 1959 as a point of Cold War conflict resolution which is the normative foundation of a different approach to managing areas of the planet. The ATS has even been offered as an exemplar of potential governance for other international problems involving the management of competing interests and sovereignty claims (Berkman, Reference Berkman2010; Scott, Reference Scott2018). A part of the success of the ATS is that (at least prima facie) there has been a high level of compliance by states with the various rules and norms of the system. A key indicator of this high level of compliance is a lack of formal disputes between parties regarding the application and interpretation of the rules and norms of the ATS. For example, Article XI of the Antarctic Treaty has a formal dispute resolution procedure ending with referral to the ICJ, but this has never been used. Similarly, Article 20 of the Madrid Protocol establishes an Arbitral Tribunal, but this has never been convened to resolve a dispute between the parties. A logrolling strategy commends a particular instrumental approach to the application and interpretation of the rules and norms of the ATS. It therefore is important to consider whether such an instrumental approach to the application and interpretation of rules and norms might otherwise impact upon levels of compliance within, and broader future of, the ATS.
Normative-based and interest-based theories of treaty compliance provide quite different approaches to this issue. Normative-based explanations of compliance rely on states acting on a “logic of appropriateness”, that is social standards of what it means to be a “good citizen” within the international society of states (Finnemore, Reference Finnemore1996). For such constructivist understandings of compliance, state interests are open to being at least partly defined and/or changed by the social standards that develop between states within international society. For example, as a part of their identity within the international system, states directly or indirectly accept and adhere to fundamental norms relating to sovereign independence and respect for the territorial boundaries of other states in the system. Some normative-based explanations of compliance focus on the procedural qualities of legal rules and institutions (Brunnée & Toope, Reference Brunnée and Toope2010; Franck, Reference Franck1990; Tyler, Reference Tyler2006) and suggest that they may produce a “legitimacy” in international law that can “pull states towards compliance”, regardless of their immediate interests. Proving the accuracy of normative-based explanations of compliance is a very difficult empirical exercise (Brunnée & Toope, Reference Brunnée and Toope2010; Franck, Reference Franck1990), which has not yet been attempted for the ATS or many other regimes. It would require extensive interviewing of the subjective understandings of key stakeholders to attempt to identify and separate the influence of state interests, the standards of the international citizenry and the legitimacy of the rules within the ATS. However, this line of thought on compliance still allows a broad observation that to the extent that logic of appropriateness operates among states within the ATS, treatment of the rules and norms of the ATS in an instrumental, short-term manner (i.e. through logrolling) risks changing understandings of good citizenry among ATS states and/or eroding the legitimacy of the rules of the ATS.
In contrast, interest-based theories of compliance are based on rationalist calculations of state interest and more prevalent within practitioner communities. These approaches view international law as essentially an expression of the mutual compromise of the national interests of the states involved in the treaty or in customary international law (Guzman, Reference Guzman2008). States primarily approach compliance with the rules and norms of international law through a “logic of consequences”, whereby they assess and respond to the extent to which participation in, and compliance with, an international treaty will serve their national interests. As Young (Reference Young1989) points out, national interests of states are not necessarily fixed, and may be open to some institutional bargaining between states and other actors during treaty formation and operation. However, the important point with interest-based theories is the primacy of a logic of consequences in assessing national interests as being a key driver to explain the behaviour of states in their engagement with the rules and norms of international law.
An interest-based approach to understanding compliance within the ATS leads to an interesting argument which focuses on geography and the human condition. As Michael Byers (Reference Byers2019) has argued, states have displayed significant ability to cooperate for mutual advantage in “cold, dark and dangerous places” (i.e. space, deep seabed and polar areas) that are largely hostile to human habitation. This argument suggests that in these hostile areas there is a strong incentive for all states to cooperate in avoiding conflict and sharing capacities for human interaction. The cost to states in adopting a non-conflictual and capacity sharing approach in these “cold, dark and dangerous” places is significantly less than in more hospitable areas of the planet, in which the physical conditions provide opportunities for significant and abundant resource extraction, settlement and other economic activities. On this view, the approach of the Antarctic Treaty parties to put aside differences of view over sovereignty and use the continent as an international space for peaceful purposes and scientific research is less one of farsighted internationalism and more explainable by the expense and difficulty of engaging in human habitation and the usual extractive resource activities. A logrolling strategy in this context might be approached optimistically, and with little downside, if states attempting to find mutual areas of cooperation on Antarctic governance are driven by the physical difficulties of human habitation in this remote and difficult area of the planet.
The “cold, dark, and dangerous places” interest-based explanation of the success of the ATS might be more persuasive in explaining the behaviour of states at the time of the formation of the Antarctic Treaty in the 1950s and the immediate period thereafter. However, human capacities for safe sea and air travel and resource extraction in Antarctica have developed rapidly since that time. The costs and risks of individual state action in Antarctica are also significantly less. This means that in 2020, the remoteness and difficult conditions of operations in Antarctica should have a lesser role in states assessing their interests in cooperating with other states in Antarctic affairs. That being the case, it is important to consider other interest-based explanations that might explain compliance in the ATS.
A more convincing and current interest-based explanation of the success of the ATS focuses on states seeing it as being important to promote either their short- or long term national interests in Antarctica. If more than one State views the ATS as furthering their national interests, then there is a zone of “mutual advantage” (Keohane, Reference Keohane1984), where the interests of both countries might be furthered through cooperation in entering into and adhering to the Treaty. For example, Australia has clearly set out maintenance of the ATS as important in furthering its national interests in the Antarctic (Commonwealth of Australia, 2016). Other claimant states similarly view the ATS as the best way of protecting their interests, avoiding conflict and facilitating science. This coalescing of interests provides an incentive for such states to join in and comply with rules and norms of the ATS, based upon the pursuit of their national self-interests. A state in this situation might choose to adhere to rules and norms which provide it with a short-run loss of utility, but are more important for the sake of longer-term utility of national interests. In this view, the success of international governance is again purely driven by a logic of consequences of states seeing adherence to the treaty is in their (at least) long-term national interests.
This type of interest-based explanation of compliance with the rules and norms of the ATS might in theory be open to a logrolling strategy. The focus on national interests as the key driver of state behaviour in the ATS might be amenable to states pursuing those interests by avoiding deadlock in negotiations and trading decision-making support between issue areas. In this way, countries such as Australia and China, as key proponents of initiatives within different parts of the ATS, might pursue their national interests (at least in the short term) by formally linking discussion of the issues and offering reciprocal voting support of each other’s initiatives to achieve short-term national goals. The “logrolling” literature referred to above largely adopts this type of short-term, instrumental logic in assessing the possibilities for states to cooperate in the short term to maximise their achievement national interests through mutual support of legislative and/or other governance initiatives.
This approach of logrolling through a focus on short-term maximisation of national interests across issue areas may overlook an important aspect of national interests in terms of maintenance of the institutions of Antarctic governance. As mentioned above, Australia is one of several countries that specifically identify the maintenance and furthering of the ATS as being a core national interest in relation to Antarctica. While an argument might be made that resolving impasses in consensus relating to key initiatives from important players in the ATS might strengthen the system in the longer term, a logrolling strategy might carry significant other risks to the strength of the rules of the system. If states choose to pursue short-term national interests in resolving disputes by treating the application and interpretation rules of institutions instrumentally, this could have longer-term effects of weakening the willingness of key players to adhere to rules and norms where they are not in their immediate short-term interests. When the parties negotiate their mutual support in decision-making processes, as if they were just different types of commodities, the raison d’être of the result of the negotiation would be just a mutual gain between the parties and not the strengthening of the regime. A state willing to enter into logrolling activity in the short term to maximise national interests may effectively facilitate the erosion of the strength of the rules and norms of an institution which is viewed as being in their long-term national interests.
To put it plainly, even on an interest-based approach, there may well be a trade-off between states using the rules and norms of institutions in a short-term instrumental manner and the maintenance and strength of those rules in the long term. If a country such as Australia considered a logrolling strategy across the East Antarctic MPA and Dome A ASMA issues, it might carry a significant risk that other rules and norms of the ATS would be treated in a similar instrumental manner at later times. This risk of normative erosion of the rules of institutions from logrolling activity is specifically identified by Susskind (Reference Susskind2014) and by Leebron (Reference Leebron2002). The latter argues that adding issues to negotiation may lessen fidelity to a regime’s values and could more broadly subvert adherence to fundamental rules and norms (Leebron, Reference Leebron2002).
A proponent for the use of logrolling strategies may query the level of risk of normative erosion. As discussed above, the term “logrolling” comes from a practice well embedded within the US domestic legislative process, which arguably has not demonstrated widespread normative erosion. An argument might be made that if domestic logrolling practices between politicians at a domestic level have not eroded the rules and norms of the system, perhaps such concerns about adopting logrolling strategies within the ATS are overstated. A full analysis of the general conditions that might give rise to a risk of normative erosion in international institutions from logrolling practices would require extensive empirical investigation across multiple institutions and issue areas, has not been carried out to date and is beyond the scope of this paper. However, it is possible here to identify some important contextual differences between the ATS and the US domestic legislative context that might point to higher risks of normative erosion from logrolling with the ATS and also serve as a point of departure for future wider inquiry.
Firstly, the ATS is a successful governance system that has managed spatial conflict over territorial claims by setting aside the disruptive argument over those claims in favour of advancing the international common goods of scientific inquiry, peaceful use and environmental protection. Strong norms and practices have therefore developed in the ATS around the importance of cooperation in protecting these common goods and decision-making processes built on the consensus of the consultative party states. This situation is in contrast to the typical highly partisan and conflictual context of the domestic legislative context which is often dominated by political party loyalties, party ideological commitments and the interests of political financial donors and/or lobbying industries. The instrumental use of voting support as a commodity is arguably more suited to, and less risky to existing norms and rules, in an already partisan, conflictual social context, such as domestic legislatures.
Secondly, as discussed below, the ATS has exhibited a remarkable tendency over the last 60 years to operate in a manner that has largely quarantined itself from wider political and ideological contests within the international system. Similarly, global ideological competition between the US and Soviet Union during the cold war period was largely able to be kept at bay during ATS meetings of that period. This quarantining of wider conflict has allowed for a renewed and ongoing focus on the central rules and norms of the system that promote the common goods of science, peace and environmental protection. Again, this stands in contrast to the domestic legislative context which is often dominated by wider political party loyalties, ideological commitments and economic interests.
Thirdly, as a counter, we have seen how China has positioned itself as political and economic power able to challenge the US’ position in the global order (Liu, Reference Liu2020a). But Chinese compliance with the rules and norms of international law has concerned some in the international community (Evans, Reference Evans2012). China has been prepared to challenge such rules and norms when its core national interests are at stake, such as in the South China Sea Arbitration (Republic of Philippines v. People’s Republic of China), when China dismissed the ex parte award given by the arbitral tribunal constituted under Annex VII to the LOSC in 2016. Despite a desire to be considered as a great polar power (Brady, Reference Brady2017), it is unlikely to view Antarctica as close to its core national interests as the South China Sea. Nevertheless, the apparent willingness of China to challenge existing rules and norms of international legal order (Liu, Reference Liu2019b, Reference Liu2020a, Reference Liu, Spohr and Hamilton2020b) may be considered a circumstance that creates an added risk of normative erosion within the ATS. In contrast, the domestic legislative context typically has relatively settled background political conditions based on political parties with long-term acceptance of the basic rules and norms of the domestic political-legal system.
Lack of history of logrolling within the ATS
The factors that point to a heightened risk of logrolling within the ATS are consistent with past practices of the ATS parties to avoid the use of logrolling strategies. There are few, if any, examples of such strategies being used on substantive issues in the various forums of the ATS. Even in the 1970s and 1980s developments on marine living resources and mineral resources, there was no attempt to make trade-offs between the two negotiations. In addition, there was no attempt to link the law of the sea negotiations with Antarctic developments—on the contrary, Antarctica was quarantined from the law of the sea negotiations even though Article VI of the Antarctic Treaty specifically made allowance for future developments relating to the high seas. Furthermore, when the Antarctic Treaty came under sustained criticism in the United Nations over the “Question of Antarctica”, on one view it might have been considered an expedient time to employ a logrolling strategy between the two forums to make the accommodation of the different views easier to achieve. However, in our view there is no evidence that issue linkage (or more particularly logrolling) was attempted. The approach of the Antarctic states was, on their own initiative and not as part of a bargain, to respond to the criticisms by making the ATCMs more open, making documents and reports more readily available, and encouraging participation in the Treaty by the states most critical of it. This approach also coincided with demands from environmentalists for greater transparency and external engagement. The Antarctic states were primarily responding to normative pressure, from both within and outside the system, for greater transparency and inclusiveness of the ATS. The Treaty Parties’ approach clearly worked to satisfy the critics and maintain the integrity of the ATS as a whole including, most importantly, its traditional handling of sensitive issues like sovereignty and access to resources.
In more recent practice, the absence of logrolling is in part because the ATS forums are not held simultaneously, in fact they are normally months apart and with discrete agendas. In addition, different players participate in these meetings and it is often the case that the presence of specific individuals has considerable bearing on the conduct of meetings. But even where meetings are held concurrently, such as the ATCM and the meetings of the CEP, there is little evidence of logrolling being employed between the various sessions, even with the same individuals present. Indeed, even within a single forum (such as the ATCM) there is scant evidence of logrolling between the issues addressed within the sub-working groups. That is not to say there are no contentious issues, simply that the norms and practice of the meetings avoid trade-offs between concurrent sessions. Such forbearance is a hallmark of the ATS, even though it results in thwarted or delayed decisions.
As mentioned above, it is also the practice to consciously quarantine ATS meetings from political or policy differences occurring in other regimes. There are important examples of this, for example, the conscious refusal of the ATCM to take into account political differences between the states at the time of widespread marginalisation of South Africa in other forums over apartheid policies. Similarly, in tensions closer to the Antarctic, the ATCM did not allow the existence of conflict over the South Atlantic islands to interfere with important developments in Antarctic governance. In these circumstances, where trade-offs might have been contemplated, the parties agreed that maintaining harmony within the ATS and strict adherence to the principles, norms and rules of the Antarctic Treaty itself was paramount. It is therefore argued here that the use of logrolling strategies in the ATS would be a significant departure from established norms and practice and could create potentially damaging precedents. Were it to be contemplated, it would allow the possibility of issues unrelated to Antarctic governance to be introduced, or the risk that the enduring principles of the Treaty itself become part of a bargain for short-term gains. This is in addition to the risk of escalation of differences in a tit-for-tat trade. Thus, while Young correctly observes that the ATS is one of the most successful governance regimes, perhaps it is because it has not been reduced to “doing deals” to make progress.
In the case studies used here, a further difficulty for logrolling is that it appears that Australia’s objections to the Dome A management arrangements are motivated by protecting the integrity of the protected area provisions of the Madrid Protocol, and that its advancement of East Antarctic MPAs is motivated by advancing the ecosystem protection objectives of Conservation Measure 91-04 (and its objections to a Kunlun ASMA or code of conduct are contrary to existing provisions). In other words, some might argue that Australia is altruistically motivated by preserving the integrity of the rules and norms of the regimes. At the same time, some might argue that China’s motives concerning the Kunlun are to consolidate its occupation of Dome A––a motive that can be characterised as a pursuit of a singular national interest to its own advantage. If this is the case, then it is open to question whether logrolling could be used to resolve successfully such fundamentally different national motives.
Conclusion
For nearly 60 years, the ATS has successfully managed geopolitical tensions in the region, and it is considered by many to be a successful example of international governance. One of the peculiarities of the ATS has been its significant institutional resilience in identifying and responding to new governance challenges. Nevertheless, in the early 21st century, the institutional and legal framework governing Antarctica is facing a new set of external pressures, including climate change and a shifting international political context, that require innovative approaches to balance a variety of different interests. This paper has attempted to contribute to the second challenge, that is, governance of Antarctica in the context of a return of great power competition to the International geopolitical order.
In the past eight years, two critical issues have awakened political tensions within the ATS, and both have Australia and China as key participants. In CCMLR, the Australian-led proposal for the establishment of several MPAs in East Antarctica could not reach consensus due to the objections of principally China and Russia. Likewise, the Chinese efforts to manage the Dome A area first through a proposed ASMA, and later through a code of conduct, have not received Australian support in the ATCM. In this context, the paper examined whether a strategy of “logrolling” between both ATS institutions could be considered as a means of resolving this deadlock. It must be noted, however, that the delay in resolving differences over the East Antarctic MPA and the Dome A proposals is short relative to the time taken to advance other issues within the ATS. Take, for example, the more than 40 years required to resolve the seemingly simple proposal for administrative support for the ATCM, first proposed in 1961 and not resolved until the Antarctic Treaty Secretariat was established in 2003. Or consider the time taken to address the obligation to put in place rules relating to liability under the Madrid Protocol—13 years to negotiate rules (that arguably fall well short of the agreed objective), eventually adopted by consensus in 2005, and yet to enter into force.
As discussed, negotiation theory provides some bases for considering whether “logrolling” between issues within different institutions in the ATS might be a strategy to unlock the negotiations at the ATCM and CCAMLR. In order to analyse the risk and opportunities of logrolling across Antarctic institutions, we have approached an underexplored topic, that is, the reasons behind the apparent high levels of compliance within the ATS, evidenced by the lack of formal dispute between the parties over application and interpretation of treaty provisions.
In considering both normative and interest-based explanations of compliance with international rules and norms, we have uncovered significant risks of logrolling activity within the ATS. Normative-based theories are more difficult to operationalise, but point to the risk that logrolling may shift norms of good international citizenry within the ATS towards resolving disputes be weakening longstanding interpretations of rules and norms. This may cause significant long-term change to the ATS. From the Australian viewpoint, this definitely would be undesirable.
Interest-based theories of compliance with rules and norms view the primacy of national interests as a key driver to explain the behaviour of states in their efforts at problem-solving through engagement in international law. On this explanation, the success of the ATS resides in states understanding the regime as being important to promote either their (short or long term) national interests in Antarctica. A state in this situation might choose to adhere to a treaty provision which might provide a short-run loss of utility in return for the instrumental benefit of the long-term utility of national interest being pursued through staying within the Treaty system. In this view, the success of international governance is again purely driven by the logic of consequences of states seeing adherence to the treaty is in their at least long-term national interests. If Australia and China considered their short-term gains by trading mutual decision-making support, they might help achieve the adoption of the MPAs in East Antarctica and an ASMA or a code of conduct for Dome A area. This might suggest that a “logrolling” strategy would benefit their short-term national interests. However, as in any negotiations, when the parties enter a “logrolling” strategy, they should analyse the potential risk of the negotiations and the possible national gains and losses in the short and long term. In addition, it is also likely the case that most Antarctic states consider it in their national interest that all other Antarctic states are within the System and adhering to it—international acceptance of the regime is therefore in the national interest. The parties should therefore consider whether the gains in the short term are worth putting an international regime, which has always been considered as an example of good international governance, in danger. As Australia values the ATS as important to its long-term interests in Antarctica and the Southern Ocean, entering into logrolling activity with China may carry significant risk to its normative and institutional framework, especially if this becomes a signal to a more frequent practice of instrumentalising compliance and interpretation of the existing rules of the ATS. We expect these findings for states will be of interest to states such as Australia, which highly value a continuation of the ATS in its current form. However, states which are more amenable to change within the ATS will also hopefully find this analysis useful.
In conclusion, while arguments might be made under general theories of negotiation for logrolling of decision-making support across issue areas for states to avoid diplomatic deadlock, this general statement needs to be approached with caution, particularly in the context of the ATS. The ATS is a successful regime, with ostensible high rates of compliance with its rules and norms, which has successfully managed international conflict over territorial claims and resource extraction for over 60 years. In our view, states such as Australia, which are highly invested in maintaining the ATS, would run significant risks in engaging in any form of logrolling strategy within the ATS. Both normative and interest-based explanations suggest that treating interpretation and application of rules and norms in an instrumental manner, to achieve short-term diplomatic success, may run a significant risk of normative erosion which could result in a weakening of the ATS. This is particularly the case in negotiations with China, which has shown a willingness to challenge existing understandings of the rules and norms of international law, in areas considered important to its national interests. To date, Australia has therefore not surprisingly adopted a strategy of keeping the East Antarctic MPA and Dome A area management issues formally separated, and will likely continue to do so.
Acknowledgements
The authors wish to express their appreciation to the Editors and two anonymous reviewers of this paper for their constructive review comments. Funding for this research was provided under Australian Research Council Discovery Grant DP190101214 titled “Geopolitical Change and the Antarctic Treaty System”.
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