By: Charles H. Norchi
The continent of Australia lies between the Pacific and Indian Oceans in the southern hemisphere. The country grew from an [early] nineteenth century pattern of settlements from England, largely comprising convicts, who arrived at a harsh land that had been inhabited by indigenous aboriginal peoples for tens of thousands of years. Today Australia is an economic powerhouse whose legal system has the same English common law roots as the United States. Asia is north, Antarctica is south. Australia asserts more territorial claims to Antarctica than any other country – forty-two percent of the continent. Hobart, the capital of Tasmania, is a fulcrum of Antarctic activity. This is where the Government of Australia Antarctic Division is based.
The Antarctic is to Tasmania as the Arctic is to Maine. Hobart is 42.8826° S. Portland lays 43.6591° N. Thus, each city lies nearly the same distance from the respective poles. Both are common law jurisdictions with law schools offering specialized polar law study—the Arctic at Maine Law and the Antarctic at the University of Tasmania School of Law. (Locally referred to as Tassie Law)
Distinct from the Arctic, there is an Antarctic Legal Regime. The northern polar region is an ocean bounded by States, each having national laws and regulations, with the exception of Greenland which has two overlapping legal systems because it is within the Danish realm. There are many treaties by which governments undertake legal obligations. The most prevalent in the Arctic is the United Nations Convention on the Law of the Sea (UNCLOS). The core of the Antarctic Regime is a basic treaty with additional protocols and related international agreements. There is a secretariat and a decision-making system in which all treaty parties participate. Although the southern polar system is relatively unitary and the northern fragmented, geopolitics pervades. The public order of the poles are not static systems, they are dynamic. In each, Russia and China loom large. For Antarctica, states active in the region have developed a sui generis regional legal regime. Thus, as Arctic Law is the province of the northern hemisphere, Antarctic Law is the province of the southern.
At the University of Tasmania Sandy Bay campus, a Faculty Club luncheon organized by Professor Jeff McGhee provided an opportunity to compare the polar programs of our two law schools. Pedagogy, especially teaching in comparative perspective, was central to our discussion involving faculty from law, international relations and science. Most Tassie Law courses would be recognizable to our students—Environmental Law and Policy, Climate Change Law and Policy, Oceans Law—but the context is different. Although these are legal subjects of global magnitude, the observational standpoint is the southern hemisphere. These are problems viewed from the bottom of the world up, whereas similar courses at Maine Law inevitably begin with a northern hemisphere standpoint. Thus, the leading program in Antarctic Law was developed at the University of Tasmania and the sole Arctic Law program in the United States was developed at Maine Law. At each school the program is interdisciplinary. Tassie Law School benefits from the Institute for Marine and Antarctic Studies (IMAS) situated in an impressive facility on the Hobart waterfront. Similarly, students in the Maine Law Arctic program benefit from the Climate Change Institute (CCI). At each school, students are exposed to the science that shapes the law; notably, Antarctic Law and Governance at Tasmania and Arctic Law Science and Policy at Maine. Students at Maine Law have the added opportunity of an Arctic field expedition in Greenland.
But in this global age of uncertainty the study of polar law must account for geopolitics. While power has long been a been a feature of polar law, Ukraine and Taiwan have elevated its effects. Russia, which accounts for most Arctic territory, has ceased participation in the regional governance mechanisms. Nuclear saber rattling in Europe also has effects in the Southern Hemisphere. Australia maintains its partnership with NATO,and has entered a security alliance with Britain and the United States known as AUKUS. Chinese force projection in the Strait of Taiwan and naval expansion from the South China Sea to the Solomon Islands —Australia’s backyard – was further exacerbated in a menacing speech by Chinese Ambassador Xiao Qin to the National Press Club in Canberra that Taiwan would be returned to the motherland and warned Australia that there would be no room for compromise. Australia has initiated a defense strategic review, to consider inter alia, how to deter or prevail in an Indo-Pacific conflict with China within three to five years. And in the Arctic, China asserts demands under cover of its “polar silk route.” There is major concern that Antarctic competition will soon mirror the US rivalry with Russia and China in the Arctic.
What might this portend for the international law of the poles? The public order of the polar regions depends on legal obligations undertaken by states. When multiple states conclude that participation in a regime or adherence to specific treaties is in their individual interest, the resulting common interest ensures order, stability and predictability. At present, the common interest of the Arctic is uncertain and along with an array of regional legal arrangements.
The Antarctic Treaty System is rooted in an agreement concluded at Washington, D.C. in 1959. China joined in 1983, investing heavily in research and development recently advancing beyond the United States and Australia. Beijing has been especially assertive over Antarctic fishing rights including joining Russia to oppose any expansion of protected marine areas. The PRC has built five Antarctic stations and analysts in Australia worry that this is prelude to resource claims and a quest for military advantage. Geopolitics intersects with law in the plausible undermining of the commitment to the principles and objectives of the Antarctic Treaty— the stabilization of territorial claims, non-militarization of the continent including the nuclear weapons ban. Both Russian and China could frustrate the decision process of the Antarctic Treaty Consultative Meeting (ATS). And, as in the Arctic, there are the prospects of treaty denunciations and withdrawal.
Our age of uncertainty pervades the study and practice of polar law. And soon, students from the law schools of Tasmania and Maine will be able to pursue the study of Antarctic and Arctic law in both hemispheres through a new exchange program. They will appraise the intersection of law and power at the poles— and learn polar law in an age of uncertainty.