Seminar 1: Shifting Poles? Geopolitics and legal regimes

09.30-17.00, Thursday 25 March 2010, Foresight Centre, Liverpool

This event will launch the seminar series by considering the new geopolitical considerations that are affecting the Polar Regions. Questions to be addressed include: Why has there been a renewed geopolitical interest in the Arctic and the Antarctic? What legal regimes are in place and are they adequate? Are new actors and interests unsettling the prevailing strategic status quo? How important are environmental and resource related issues in driving any changes?

Schedule

0930-1015 Registration / Coffee
1015-1045 Introduction to the Seminar Series
Dr Richard Powell, Geography, University of Liverpool
1045-1130 Geopolitics in, and of, the High North
Prof. Lassi Heininen, Social Sciences, University of Lapland
1130-1145 Coffee
1145-1230 The Antarctic: geopolitics, law and resources
Prof. Klaus Dodds, Geography, Royal Holloway, University of London
1230-1330 Lunch
1330-1415 Troubles in Tranquillity: The Antarctic Treaty regime of 1959
Prof. Kaiyan Kaikobad, Law, Brunel University
1415-1500 Security Prospects in the Arctic and the United Kingdom
Prof. Clive Archer, Politics, Manchester Metropolitan University
1500-1515 Tea
1515-1545 Comments from Discussant
Dr Michael Bravo, Scott Polar Research Institute, Cambridge
1545-1645 General Discussion from Audience
1645-1700 Close of Conference

Speakers

Security Prospects in the Arctic and the United Kingdom

Prof. Clive Archer

Prof. Clive Archer
Emeritus Professor at the Manchester Metropolitan University, England.
c.archer@mmu.ac.uk

Developments

The United Kingdom may not be seen as an Arctic power, but it does have interests there. Traditionally, UK interests in the security of the Arctic were pursued at a multilateral level through NATO. In the Cold War, these were perceived to be very ‘hard security’ issues and, as seen above, concerned countering the Soviet Union in the Arctic areas leading down to the North Atlantic. Since the end of the Cold War, this region has declined in traditional security importance for the UK, and so has NATO involvement. By the end of the Cold War, the UK’s interests were as a NATO power, in the sources of energy and in environmental issues. Presently, UK interests can be seen as being in the functional areas (such as resources and the environment), soft security issues, jurisdictional questions and the institutions.

Security

On security, the UK interest is that tensions between Russia and the West in the Arctic should not lead to renewed military confrontation. Nevertheless, the UK’s military engagement has shifted from the North Atlantic to the ‘out-of-area’ since the 1980s. Furthermore, the UK’s views on jurisdictional issues (e.g. Svalbard) clash with those of Norway, a NATO ally.

UK Involvement

The UK is involved as an observer in the two regional institutions – the Barents Euro-Arctic Council, BEAC and the Arctic Council, AC—and is an important member of NATO and the EU. The EU is developing an Arctic policy but NATO will still be expected to deal with hard security issues. Currently, the UK presence in the Arctic is rather low-level, though there has been an increasing interest in resource and environmental issues. In the long run, there may be a return to a more engaged UK involvement in the region precisely because of the rising importance of resource and environmental factors. The Arctic could also become an area of power contention. Meanwhile, the UK can increase its awareness of Arctic issues and cooperate with like-minded states.

The UK has certain natural allies such as the Nordic states and the US. It should also recognize that it has interests in common with Russia and states such as Japan. However, the Arctic contains a number of traps – tangles over jurisdiction, the treatment of indigenous peoples, concern for the environment versus resource exploitation – that need to be treated with some care. The first step is for the UK government to continue to support a high level of knowledge about these issues. The second is to exchange such knowledge and discuss common interests with like-minded countries.


The Antarctic: geopolitics, law and resources

Prof. Klaus Dodds

Prof. Klaus Dodds
Professor of Geopolitics, Royal Holloway, University of London
http://www.gg.rhul.ac.uk/Dodds/

Sovereignty is back in the Antarctic

Recent circumstances have revealed that the 1959 Antarctic Treaty is arguably facing renewed pressure not seen since the 1980s when the question of mineral exploitation was being negotiated. In 1991 the Protocol on Environmental Protection banned mining (under Article 7) for at least fifty years on entry into force (1998).

What has changed? This presentation explored three main issues: outer continental shelf delimitation, living resource exploitation and biological prospecting. It did so by contextualising these developments historically with reference to the origins and evolution of the Antarctic Treaty (and the development of the Antarctic Treaty System) and, more recently, by showing how at least one claimant state, Australia, has sought to strengthen it’s sovereign authority over the Australian Antarctic Territory (AAT).

  1. Outer continental shelf delimitation. Under Article 76 of the Law of the Sea Convention, coastal states can make submissions to the Commission on the Limits of the Continental Shelf (CLCS) pertaining to so-called outer continental shelves. The end-result is not inconsequential. The CLCS eventually issues ‘recommendations’, which if accepted and adopted extend the sovereign rights of coastal states over greater expanses of the sea floor. In the case of Antarctica, a number of claimant states including Australia, Argentina and the UK have submitted materials to the CLCS either for their Antarctic territories and or sub-Antarctic islands. But does this procedure, with implications for sovereign rights, denigrate the core principle of the Antarctic Treaty; Article 4, which seeks to preserve the legal and territorial status quo of Antarctica as noted in 1959? Can there indeed be coastal states in Antarctica? The claimant states think yes and the non-claimants think no.
  2. Whaling. Australia and Japan fundamentally disagree on the practice of whaling. It is a highly emotive subject. Addressed by the International Whaling Commission, a Southern Ocean Whaling Sanctuary was created in 1994. Japan, however, has continued to engage in ‘scientific whaling’ and approximately 1,0000 whales per year have been harvested. In 2004, the Humane Society International sought a legal judgement against a Japanese whaling company for whaling in the Australian Whale Sanctuary (AWS), which includes waters off the AAT. In 2008, the federal court concluded that the AWS had been violated and found against the Japanese company. Australia, in effect, became the first country to declare that Japanese whaling was illegal under Australian law. But does that go against the spirit and purpose of Article 4 of the Antarctic Treaty? Japan rejected the ruling.
  3. Biological Prospecting. This includes the exploitation of naturally occurring microorganisms, plants and animals for commercially valuable resources. This activity is growing in the Antarctic and Southern Ocean; something 180 organizations are involved in this kind of research. The ATS is still addressing this issue but it raises important concerns. Does biological prospecting undermine principles like the freedom of knowledge exchange? Does biological prospecting raises questions pertaining to property rights and ownership of resources? Whenever, one considers genetic resources the s-word (sovereignty) is never far behind and this can be unsettling in the area of the world where sovereignty is not settled.

Why does this matter?

Australia is an interesting case in point. It has been one of the most pro-active claimant states in combating illegal fishing around its sub-Antarctic islands such as Heard and MacDonald, protecting whales, and delimiting its outer continental shelves in and around the Antarctic region. Sensitive to the Antarctic Treaty provisions, indeed, it asked the CLCS not to consider material relating to the AAT. On the face of it, one might conclude that Australia is seeking to take seriously its international obligations and using, international legal regimes such as the Law of the Sea, in a perfectly reasonable manner.

On the other hand, Australia could be seen to be seeking to consolidate its territorial sovereignty in the Antarctic. This, after all, is occurring against a backdrop of some evidence that of public concern regarding the Chinese and Indian Antarctic programmes and whether Australia is doing enough to protect its interests in the AAT; an enormous area of continental and offshore Antarctica.

This leads ultimately to a rather double-edged approach to territory and resources. Claimant states such as Australia and New Zealand reside in a perpetual state of anxiety. Their claims are suspended for the duration of the treaty but there is a constant pressure to remind the wider world that they take their claims seriously. Sovereignty is performed routinely. Resource management and outer continental shelf delimitation are good ways to show intent. Non-claimants including China, Russia and the United States are keen to remind the seven claimants that they don’t accept those claims and are eager to perform their credentials.

The danger is, without anyone meaning it, is a delicate compromise negotiated in a very different time and place (i.e. 1959) is incrementally undermined in the coming decades.


Geopolitics in, and of, the High North

Dr Lassi Heininen
University Lecturer & Adjunct Professor (Docent), Faculty of Social Sciences, University of Lapland, Finland.

In classical geopolitics the northernmost regions of the globe has been discussed as a reserve of natural resources and a space for the military, but the region is also a homeland of Indigenous and other peoples. At the 2010s there are two main discourses on geopolitics and security of the High North: The mainstream discourse emphasizes the stability and peacefulness of the post-Cold War period. Behind is that the industrialized and militarized High North of the Cold War started to thaw at the turn of 1980s-1990s, and transformed from confrontation into international cooperation, as a result of increased interrelations between peoples and civil societies, and trans-boundary cooperation by states.

Recently, another discourse surrounding northern regions argues that the High North has high potential for a ‘race’ of natural resources, particularly dealing with continental shelves, and consequently, emerging conflicts are occurring. In the Arctic’s resource-rich region there is increasing use and utilization of energy resources, as there has been for fish stocks and marine mammals over the centuries. This is much along the line that within northern geopolitics there have been two basic points of discussion: that of conflict and cooperation. None of these are, however, happening, since in the region there is neither armed conflict nor strategic race on energy, or other natural, resources.

Geopolitics of the post-Cold War period

In the High North there are, as there has been for decades, disputes on maritime borders, particularly exclusive economic zones (EEZ) division lines, between the littoral states, and national claims on the two northern passages by some of them. There are also land claims by indigenous peoples, and asymmetric environmental debates and conflicts on use of land and waters. Yet, the region is not terra nullius, or no-man’s land. Its territories are under national sovereignty with fixed national borders, and most maritime boundaries were agreed upon by the littoral states. Furthermore, the entire region just now enjoys considerable and lively, mostly multilateral and institutionalized, cooperation between states, and among non-state actors, and consequently, the region is stable and peaceful.

According to the Arctic Human Development Report (2004) a state of geopolitics and international relations of the High North can be interpreted through three main themes: an increasing circumpolar cooperation by indigenous peoples’ organizations and sub-national governments; a region-building with states as major actors, such as the Arctic Council; and final, a new kind of relationship between the circumpolar North and the outside world.

The High North in state interests

The role and position of the Arctic states were also changed in the post-Cold War period. The states has emphasized the importance of the Arctic Council as a soft-law instrument – although it has much avoided discussion on real issues – but have kept, and keep, their own interests and priorities. Behind is the reality that unified states are the major actors of the region to achieve regional political and social stability through intergovernmental cooperation, while not weakening national interests.

This is seen for example, how the legal rights by the United Nations’s Convention of the Law of the Sea (UNCLOS) to make a submission on the main basin of the Arctic Ocean, beyond the continental shelf of the 200-mile EEZs, are implemented. And, in the first place that they are implemented as Russia did in August 2007 on the Lomonosov Ridge. Further, that Canada, Denmark/Greenland, Norway, Russia and USA, and Iceland have approved their arctic / northern strategy or policy with certain priorities. Furthermore, this is seen in the new setting, ministerial meetings of the five Arctic Ocean littoral states, which could easily marginalize the Arctic Council, although it has said to be an ad-hoc kind of arrangement.

Together with an emphasis of state sovereignty and highly strategic energy security, this may mean a growing tendency back to national (power) policy, which consequently, might indicate that the post-Cold War period is over in the High North.

New kind of geopolitical change

The 21st Century’s High North is not isolated, but closely integrated into the international community and globalized world economy. There is even a manifold growth in its geo-strategic importance in world politics militarily and from the point of view of (global) energy security. The region has also become an environmental linchpin due to (global) environmental problems, and consequently, a ‘workshop for science and research on the environment and climate change. Final, there are innovations in governance and co-management, and in political and legal arrangements, such as devolution of power.

Parallel to this, there is a growing global interest toward the High North, and its rich resources and new sea routes, and a potentially bigger share of more accessible Arctic regions in the global economy. This has been shown on one hand, by major powers from outside the region, such as UK and the European Union in Europe, and China and South Korea in Asia. The United Nations also plays an important role in northern regions through the Intergovernmental Panel on Climate Change (IPCC) and the above-mentioned UNCLOS.

Consequently, and partly as a reaction, there is a growing interest by the Arctic states. Once a physical rarity, passage makes the Arctic more accessible to those seeking to use its waters for their own benefit, and preservation of state security from passers-by, in areas heretofore frozen year-round and impassable, is now a subject of primary concern.

All this indicates that a new kind of significant and multi-dimensional geopolitical, geoeconomic and environmental change is occurring in the High North, or actually has already started. This is revealed by physical impacts of climate change, which has also become a security issue, and on the other, global interest towards the region’s energy resources, meaning at this stage new options for utilizing them, and further, there are also other indicators. Of concern is also protection of the fragile arctic nature and the changing Arctic ecosystem.


Troubles in Tranquillity: The Antarctic Treaty regime of 1959

Prof. Kaiyan Kaikobad
Professor of International Law, Brunel Law School, Brunel University, Uxbridge, West London.

This paper seeks to analyse some of the key legal problems which continue to be-dog the Antarctic Treaty regime concluded in 1959. Of course, geographical and geopolitical aspects of the Antarctic are also significant but, for purposes of this presentation, it is the legal dimension which is the main focus here. To be sure, this presentation is confined to an examination of problems which are concerned with territorial issues.

The first issue is whether the continent is susceptible to acquisition of title and position taken is that in principle there is no impediment to the continent being claimed by any State or a number of States acting severally.

The second question is whether the individual heads of claims of title to parcels of Antarctica can stand up to legal scrutiny. The main roots relied upon by them are discovery, discovery and control, the dependency principle, contiguity and propinquity, the so-called sector principle and State succession as a derivative mode of title. Save the sector principle, all the above vestitive juridical facts are valid sources of title. The problem lies in evaluating the facts and applying the law, especially in overlapping sectors.

The third issue is concerned with the two terra nullius sectors of the Antarctic. The question is whether any State not a Party to the 1959 Treaty can submit a claim and assert territorial sovereignty over these two sectors. It is argued that the better view is that despite the forceful arguments of non Contracting States, there is some evidence to show that customary international law has developed, or is beginning to develop an abhorrence of claims of title over any part of the unclaimed sectors.

Fourthly, under Article IV, paragraph 1, sub paragraph c, nothing in the Treaty of 1959 shall be interpreted as, inter alia, “prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s rights [emphasis added] of or claim or basis of claim to territorial sovereignty”. This is acknowledgment that the treaty envisaged that there were, or would be, States in the international community which could have rights, or claims or bases of claims for territorial sovereignty.

The fifth question involves the question whether the entire Antarctic Treaty regime of 1959 is itself subject to non-recognition by States of the international community (Malaysia, Sri Lanka, etc) who oppose the “Antarctic Club” approach. The effect of non recognition would be that if the 1959 Treaty is in fact a “stitch up” of the old colonial masters then that regime would be unopposable to them. However, they would first have to demonstrate the existence of an unlawful territorial regime being maintained by the “Antarctic Club” and that would be difficult to do. However, it would be relatively easier to argue that the regime is invalid, that it is not dissimilar to an expired governmental licence: invalid but not unlawful.

The enhancement of claims is the sixth question. Article IV precludes the enhancement of claims to territorial sovereignty in Antarctica. The issue becomes acute in terms of the maritime zones adjacent to the continent where there are zones of territorial sovereignty, as for example, the territorial sea, and zones of sovereign rights, as for example, the exclusive economic zone and continental shelf. The position is rather nuanced but the general view taken is that there are elements of enhancement of claims regarding these zones. The same applies to the notion of the extended continental shelf.

Finally, the presentation attempts to answer the question as to whether the Antarctic Treaty regime has any future in the twenty-first century. On the one hand there are attempts to alter the status quo by urging the adoption of a global commons regime, as a kind of variation of the common heritage of mankind; but of course any change would necessarily require agreement of the claimant and contracting Parties, and that agreement is not a realistic proposition in today’s international and political orders.