Philosophies of Polar Law

Dawid Bunikowski, Alan D. Hemmings, Dawid Bunikowski, Alan D. Hemmings

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9780429865824
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Analysing the most important concepts and problems of the philosophy of polar law, this book focuses on the legal regimes relating to both the Arctic and Antarctic.

The book addresses the most fundamental concepts and problems of polar law, looking beyond the apparent biophysical similarities and differences of the two polar regions, to tackle the distinctive legal problems relating to each polar region. It examines key legal–philosophical areas of the philosophy of law around legal interpretation; the role of nation states, reflected in concepts of territorial sovereignty – whether recognised or merely asserted, the exercise of jurisdiction, and the philosophical justifications for such claims; as well as indigenous rights, land rights, civil commons and issues of justice.

The book will be of interest to students and scholars of polar law, land law, heritage law, international relations in the polar regions and the wider polar social sciences and humanities.

Part I

Fundamental concepts of the philosophies of Polar law

Chapter 1

The philosophy of law in the Antarctic

Alan D. Hemmings¹

1 Introduction

In contrast to the Arctic,² the philosophy of law in the Antarctic has barely attracted comment, let alone explicit scholarly consideration, within either the regional Antarctic literature or (perhaps consequentially) in general works on the philosophy of law. There is a now quite massive literature on public international law in the Antarctic – albeit one historically dominated by Anglo-Saxon and Latin American scholars, or otherwise Euro-centric in tradition and orientation. Emilio Sahurie comes closest to considering philosophy of law in Antarctica, in his reflections in The International Law of Antarctica,³ on, inter alia, what he terms “Identifications” which he sees as “largely repetitive of … other processes with global significance”,⁴ in his observation on the centrality of “Enlightenment” as an Antarctic value,⁵ and in his concluding “Appraisal” where he sees a common purpose in the maintenance of “the current premises of the current order of Antarctica”.⁶ But Sahurie is unusual in the intellectual breadth of his legal engagement with the Antarctic, and his work is now inevitably dated, since it was conceived and published almost 30 years ago, at the hinge point of the end of both the Cold War and the decade-long negotiation of three separate Antarctic legal instruments and the beginnings of the new global order, whose unfolding is still underway today.

Philosophers have, until very recently,⁷ demonstrated very little interest in Antarctica.⁸ So, with both lawyers and philosophers looking elsewhere, the lack of attention to philosophy of law in the Antarctic is perhaps not surprising. With the caveat that the present author is neither an international lawyer nor a philosopher, but a specialist on the structure and functioning of the Antarctic politico-legal regime, centred on the Antarctic Treaty System (ATS), this chapter alongside three other chapters in this collection,⁹ thus seeks to open the consideration of philosophy of law in the Antarctic. It is inevitably preliminary in scope.

1 Gateway Antarctica Centre for Antarctic Studies and Research, University of Canterbury, New Zealand, [email protected].

2 See Dawid Bunikowski, Chapter 2 in this volume.

3 Emilio J. Sahurie, The International Law of Antarctica (New Haven: New Haven Press and Martinus Nijhof, 1992).

4 Ibid., at 90–94.

5 Ibid., at 98–100.

6 Ibid., at 574–586.

7 Most significantly with the Norwegian-based ‘Political Philosophy Looks to Antarctica’, https://www.hf.uio.no/ifikk/english/research/projects/political-philosophy-looks-to-antarctica/

8 With the notable exception of Holmes Rolston III, who has addressed environmental ethics there – see his ‘Environmental Ethics on Antarctic Ice’, Polar Record 36 (2000): 289–290; ‘Environmental Ethics in Antarctica’, Environmental Ethics 24 (2002): 115–134; and ‘Antarctica’ in Baird Callicott and Robert Frodeman (eds) Encyclopedia of Environmental Ethics and Philosophy (Detroit: Macmillan, 2009) 53–58.

9 See David Coady, Brendan Gogarty and Jeffrey McGee, Chapter 5, ‘Philosophy of science and legal disputes over whaling in the Southern Ocean’; the Antarctic consideration in Nengye Liu and Qi Xu, Chapter 8, ‘The predicates of Chinese legal philosophy in the polar regions’; and Alejandra Mancilla, Chapter 3, ‘Decolonising Antarctica’.

Boundaries are generally more contingent and porous than their proponents perceive, and this certainly holds for both the Arctic and the Antarctic. But some sort of bounding seems essential, and in the case of the Antarctic there is happily an oceanographic/biophysical/geopolitical/legal convergence on a convergence – the Antarctic Convergence – as a useful boundary for “the Antarctic”. This convergence is not haphazard. It was arrived at by taking the Antarctic Convergence (also termed the Antarctic Polar Front) as the sensible northern boundary for the key international legal instrument regulating the Antarctic marine environment, the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).¹⁰ The Antarctic Convergence extends around the continent of Antarctica, varying in its position, being at its most southerly in the Pacific sector, where it is at about 60ºS; around 50ºS in the Atlantic sector, and as far north as 45ºS in the Indian Ocean sector. CCAMLR defines its boundary by precise points of latitude and longitude.¹¹ Since CCAMLR is an integral component of the wider ATS, the Antarctic Convergence becomes in effect the northern boundary of this ATS.¹² The maritime area falling within this boundary is colossal, some 32 million square kilometres, constituting just under 10 percent of the global marine area.¹³ The Antarctic continent adds a further 14 million square kilometres, so that the total area of “the Antarctic” as defined here is 46 million square kilometres – just under 9 percent of the total surface area of the earth.

10 Convention on the Conservation of Antarctic Marine Living Resources, 20 May 1980, 1329 UNTS 47.

11 Ibid., Art. I.4.

12 Although the ATS does not regulate all activities across this entire area.

13 John Croxall and Stephen Nicol, ‘Management of Southern Ocean fisheries: global forces and future sustainability’, Antarctic Science 16 (2004): 569–584.

Thus, this Antarctic is a gigantic area of ocean, continent and islands. It is, variously, subject to the metropolitan legal codes of the states that operate there (whether asserting jurisdiction over only their own citizens and entities, or in the case of claimants notionally more generally), generic international legal instruments, and international law elaborated at the Antarctic regional level by the now more than 50 states (and the European Union) which are party to one or more of the ATS component instruments. North of 60ºS coastal state jurisdiction is unimpeded, but this is essentially restricted to nine sub-Antarctic island groups;¹⁴ south of 60ºS, unresolved territorial sovereignty and Antarctic Treaty constraints (considered later in the chapter) necessitate consensus decision-making beyond states’ immediate jurisdiction over their nationals. Unlike the Arctic (see other contributions to this volume), no issues of indigenous peoples’ law within the area arise.¹⁵ Indigenous peoples reached the extremities of South America, just north of the Drake Passage, and, remarkably, Polynesian people briefly settled on Enderby Island (Auckland Islands group, at 50ºS) in “the late thirteenth century”,¹⁶ but despite apparent Antarctic myths amongst several indigenous peoples,¹⁷ no clear records of penetration, let alone residence in the Antarctic are proven. So, in David Day’s emphatic words, there were “no people who could be demeaned and dispossessed”.¹⁸

In the sections which follow, I first make some general propositions about the nature of any philosophy of law in Antarctica. I then examine the colonisation of Antarctica and the consequential assertion of claims to territorial sovereignty there; the internationalisation of Antarctic legal arrangements through the adoption of the Antarctic Treaty in 1959,¹⁹ and the subsequent expansion of the legal regime through the ATS;²⁰ then the drivers of Antarctic legal development – both activities and norms; before concluding with an examination of the consequences of the global world order in Antarctica, with all that this may mean for the future legal system there.

14 Running clockwise from the South Atlantic: South Georgia and South Sandwich Islands (under effective UK jurisdiction but contested by Argentina); Bouvet Island (Norway); Prince Edward and Marion islands (South Africa); Crozet and Kerguelen islands (France) and Heard and McDonald islands (Australia). All of these groups fall within the CCAMLR area, but are not within the area of application (south of 60ºS) of the other ATS instruments. Even under CCAMLR, the sub-Antarctic coastal states’ positions are reserved through the Statement by the Chairman of the Conference on the Conservation of Antarctic Marine Living Resources, which was promulgated when CCAMLR was adopted.

15 In relation to indigenous peoples, see also Adrian Howkins, The Polar Regions: An Environmental History (Cambridge: Polity, 2016); and Ben Maddison, ‘Indigenising the heroic era of Antarctic exploration’, in Elizabeth Leane and Jeffrey McGee (eds) Anthropocene Antarctica: Perspectives from the Humanities, Law and Social Sciences (London: Routledge, 2020) at 135–155.

16 Atholl Anderson, Te Ao Tawhito The Old World 3000 BC – AD 1830: Tangata Whenua, An Illustrated History, Part One (Wellington: Bridget Williams, 2018) at 73.

17 See, e.g. Elizabeth Leane, Antarctica in Fiction: Imaginative Narratives of the Far South (New York: Cambridge University Press, 2016) at 24–25.

18 David Day, Antarctica: A Biography (Sydney: Knopf, 2012) at 521.

19 Antarctic Treaty, 1 December 1959, 402 UNTS 71.

20 The ATS is defined in the Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1461 (hereinafter ‘Madrid Protocol’), Art. 1e: “‘Antarctic Treaty system’ means the Antarctic Treaty, the measures in effect under that Treaty, its associated separate international instruments in force and the measures in effect under those instruments.”

2 General propositions concerning a ‘philosophy of law in the Antarctic’

It may be argued that there is now:

“a distinctive body of international polar law … not only reflected in the now longstanding regional legal framework that applies to the Antarctic, but also to the developing legal framework in the Arctic [and] … that there are distinctive legal principles that have been developed and applied in the polar regions, especially relating to sovereignty and territoriality, environmental and resource management, and cooperation and regional governance.”²¹

But this proposition says nothing about the substructure of the putative body of international polar law. Critically, it risks overlooking the variability therein in relation to motives, interests and underlying norms that diverse states (and ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Introduction – Emerging philosophies of polar law
• PART I: Fundamental concepts of the philosophies of Polar law
• 1. The philosophy of law in the Antarctic
• 2. The philosophy of law in the Arctic
• PART II: Western legal framings
• 3. Decolonising Antarctica
• 4. The Arctic as civil commons
• 5. Philosophy of science and legal disputes over whaling in the Southern Ocean
• PART III: Indigenous and non-Western framings
• 6. Legal (non) recognition of Sámi customary relationship with the land in Finland: Challenges so far and prospects in the modern human rights era
• 7. Assimilation policy contra cultural viability in the North
• 8. The predicates of Chinese legal philosophy in the Polar Regions
• PART IV: The environment
• 9. Climate change and the role of indigenous peoples in preserving nature and biodiversity with special emphasis on the Arctic
• 10. Environmental perceptions and values of the Russian northern indigenous peoples
• Index