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Monitoring penguins by an automated camera set up by the Australian Antarctic Division at Whitney Point near Casey station. Australian Antarctic Division/Colin Southwell

Is Australia’s claim to Antarctica at risk?

While Australia’s commitment to a 20-year plan for Antarctica has been welcomed by some it has also raised concerns over the nation’s ability to fulfil a credible research role in the south polar region.

The issue was raised this week with claims Australian researchers should have been deployed to study an issue at the Totten Glacier, just 400km from the Australian Casey base. Instead, a US mission had been sent, ironically via Hobart.

Faced with growing interest in the region from other nations such as China, South Korea, India, Russia and Iran, there was a call for an extra A$10-20 million a year in Australian Antarctic research.

Central to the 20 Year Australian Antarctic Strategic Plan, released last week, is whether any funding cuts to research programs, and lack of capacity and infrastructure is leading to a dilution of Australian sovereignty over the Australian Antarctic Territory (AAT).

So what is Australia’s claim to the region and could that be under threat?

The AAT & The Antarctic Treaty

The Australian Antarctic Acceptance Act 1933 proclaimed the AAT and gave the country “sovereignty” over almost 6-million km2 of Antarctica.

Two decades later, post-war fears of conflict led to 12 nations (including Australia) developing a treaty that would put aside the problem of overlapping and rival territorial claims to the continent during the life of the treaty.

The various claims on the Antarctic include the two Australian sections. Australian Antarctic Division

The Antarctic Treaty was signed and came into force in 1961. It is still in force today since it has no expiry date.

Of note is Article IV of the Treaty. It states that:

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.

Essentially this Article freezes or maintains the claims as they were at the time of the Treaty’s inception.

Purposefully open to interpretation, some academics call this article, “a purgatory of ambiguity”. The interpretation was necessarily ambiguous in order to retain and preserve peace over the overlapping claims.

Peace and science

Since the Treaty and its freezing of the claims, Antarctica has remained a place of peaceful collaboration via the common goal of science.

Regardless of the possible interpretations of Article IV, the Treaty is the epitome of international peace agreements. Countries work side by side on ships and on the ice, regularly meet and remain in open dialogue with each other.

Article IV, from an Australian sovereignty perspective, and arguably from any reasonable legal interpretation, maintains the AAT as it was both from 1933 and 1959.

The Treaty will likely remain in its current state for decades but any forward thinking nation would maintain the status of the AAT as per any laws that would apply post-Treaty.

Beyond the Treaty

The laws that would apply to the AAT beyond the Treaty’s operation would be those attached to any claim of title to territory.

Antarctica may be unique and mysterious, but from a legal perspective, it is just a piece of land. The lack of permanent population means Antarctica is treated as terra nullius by almost all legal academics.

There ain’t nobody here but us penguins … and a few scientists. Australian Antarctic Division/Robyn Mundy

The Eastern Greenland case is the most cited case when talking about title to terra nullius. This 1933 Permanent Court of International Justice (the forerunner to the International Court of Justice) decision tells us that title to a piece of remote and unpopulated territory shall be subject to the effective occupation of that territory by the country that claims it.

The manifestation of this occupation is displayed through the intent and will of the claimant, and the actual exercise and display of their sovereignty.

This highlights the importance of Australia maintaining a strong sovereign presence in Antarctica and therefore having a strong scientific program. Constant evidence of activity will prove a strong intention to act as sovereign.

Keeping your place in Antarctica

The substance of this international decision is a competitive balancing of effectiveness of occupation. Initially title begins with actions such as discovery, statutory acknowledgement such as the Australian Antarctic Acceptance Act 1933, the planting of a flag and other more ceremonial statements.

The ageing icebreaker Aurora Australis is being replaced. Hosung Chung

Then a country must “perfect the title”. This could be done by showing the capacity and time spent on the ice (for example with the new icebreaker to replace the aged Aurora Australis), the ability to administer Australians that visit the AAT, search and rescue capacity in adjacent territory and continuous peaceful presence.

As science is the currency in Antarctica, Australia’s Antarctic science program forms the central and critical display of the effectiveness of its occupation. Maintaining Australia’s influence within the Treaty forums was a key recommendation of the 20 year strategic plan.

Is the AAT under threat?

Currently the Australian claim is not under threat, and will not be while the Treaty exists in its entirety. Just as Article IV applies to Australia, it applies to all 50 parties to the Treaty – and to make a change to Article IV requires consensus of the 29 consultative parties.

As explained above, others countries do have their eyes focused on Antarctica. Should a non-party to the Treaty arrive on the continent with non-scientific or non-peaceful intentions, then it is likely politics and international customary law will be used to prevent that non-party taking any actions that were contrary to the spirit and intent of the Treaty.

In the most unlikely event that the Treaty should end, then any rival claimant will need to submit to a competitive process with Australia, bettering its long standing history of effective occupation. Broader, untested arguments of common heritage aside, it is unlikely that another country could defeat Australia’s claim.

We should acknowledge and celebrate the consistently peaceful intentions embodied in the Treaty and associated activities of other countries within the AAT. Article IV makes the discourse of fear of other countries’ presence on Australia’s territory a moot point.

The implementation of the 20 Year Australian Antarctic Strategic Plan’s recommendations, supported with consistent and adequate long-term funding, is important to the AAT.

For beyond the Treaty, Australia will prove its sovereignty by displaying a commanding Antarctic presence, best evidenced by a continuous and substantial scientific program.

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