CONSTRUCTING A REGIME: THE ANTARCTIC TREATY SYSTEM
49 The third section examines the implementation of the Antarctic regime after 1961 and
analyses its main normative and procedural features.
I: the history of Antarctic politics
Antarctic history prior to the mid-1950s can be conveniently divided into two slightly overlapping periods - the so-called Heroic Age of exploration (1770 to 1915 or thereabouts) during which time the Antarctic was sought, discovered and explored, and the Imperialist Era (1908 to the mid-1950s) when territorial claims, and the attendant potential for conflict in the region, were established. Throughout, those who have gone to the Antarctic and surrounding oceans have been driven by a combination of motives - adventure, empire, commerce and science.
Even with the benefit of modem technology the Antarctic is a dangerous and inhospitable place. It is a continent characterised by extremes. It is the coldest, driest, windiest place on earth. Average temperatures in the Antarctic rarely rise above freezing, even in the summer months. Annual precipitation is minimal, less even than the Sahara.3 Katabatic winds (caused by local gravitation of cold air currents down steep slopes) can reach 300 km per hour. All but 2 percent of the continent’s 13.5 million square kilometres4 is covered by a slowly moving ice sheet, with an average thickness of 2000 metres.5 The continental ice-cap also extends offshore in permanent ice-shelves.6 The continent is almost inaccessible during the long months of winter darkness when pack-ice almost doubles the size of the continent. Large tabular (flat- topped) icebergs which break free of the ice shelves and glaciers compound the dangers to shipping at all times of the year.
Thus the Heroic Age, which began and ended with British explorers, was aptly named.7 It was Captain James Cook who first circumnavigated the continent in 1772-75
3. At the United States Amundsen-Scott station at the South Pole the annual mean temperature is - 4 9 ‘C and annual precipitation averages about 7cm although towards the coast precipitation can be as much as 30cm per year.
4. This is approximately one-tenth of the earth’s land surface and larger than the United States and M exico combined.
5. At its deepest (or highest, for the Antarctic has the highest average elevation of all the continents) it extends to 4500 metres. This ice sheet contains approximately 70 percent of the world’s fresh water and 90 percent of its ice. If the ice-cap were to melt completely the world’s oceans would rise by about 60 metres (about 200 feet). However, the release of the great weight o f the ice, which depresses about one-third of the Antarctic land mass to below sea-level would mean that much of Antarctica itself would still be above water. There are some ice-areas away from the coast - the McMurdo Dry Valleys, the Burger Hills, the Larsemann Hills and the Vestfold Hills.
6. These ice-shelves constitute about 10 percent o f the Antarctic. The largest are the Ross, Filchner, Ronne and Amery (all named for Antarctic explorers). As an example, the Ross ice- shelf is about the size of France.
7. The existence of a ‘great southern land’ had long been a subject for speculation. The Greek explorers speculated on the existence of a geographically-balancing southern continent after
although, as far as we know, he never saw it.8 He saw fit to pronounce "...I can be bold enough to say that no man will ever venture farther than I have done; and that the lands which may lie to the South will never be explored" (Quigg 1983:8).
Cook was, unwittingly, the harbinger o f resource exploitation in the Antarctic region. His reports o f abundant wildlife in sub-Antarctic latitudes attracted sealers (mainly from Norway, Britain and the United States) to the southern oceans where they proceeded to decimate seal populations to such an extent that by 1830 the industry was at an end.9
The first sighting o f the continent itself sometime in 1820 or 1821, and thus the right to claim discovery, is disputed.10 The British, Russians (later the Soviets) and the Americans have all fielded candidates.* 11
In the late 1830s scientific expeditions were mounted by the United States (under Lieutenant Charles W ilkes),12 the French (Jules Sebastian Cesar Dumont D ’Urville) and
Pytheas journeyed to the Arctic. Post-Columbian maps included "terra australis incognita" (the unknown southern land). The journeys of explorers whose names are well known to history, Diaz, Magellan, Halley, dispelled many of the myths about this unknown land, even though they never saw it or came close to it. Early eighteenth century explorers sailed southward searching for great riches and command of strategic trade routes. Their voyages were made more dangerous by the natural obstacles confronting them in their quest for the southern land - the winds and storms of the Roaring Forties, the Furious Fifties and the Screaming Sixties and, as they moved southward, the ever present and unpredictable ice.
8. According to Quigg (1983:8) Cook never claimed to have seen the Antarctic, although he admitted that it was probable that he had seen part of i t He did land on South Georgia and also showed that the Antarctic was not connected to New Zealand which he had ‘discovered’ in 1769. 9. The most sought after seals were the fur seal and the elephant seal. The numbers killed may
well be in the scores of millions.
10. According to Polynesian legend a Polynesian chief sighted the continent in 650 AD.
11. The British assert that Edward Bransfield saw the Antarctic Peninsula late in January 1820. The Americans argue that what Bransfield called Trinity Land was, in fact, an island. The British claim is somewhat undermined by the fact that Bransfield’s report to the Admiralty was subsequently lost. However it seems likely, from his charts and crew reports, that he sighted the continent sometime in February (Quigg 1983:10). The Russian contender (later claimed by the Soviets) was Thaddeus von Bellingshausen who, in the employ of Czar Alexander I, crossed the Antarctic Circle in January 1820. He never claimed to have seen the mainland, although again his ships log and diary indicate that he may well have done so (Quigg 1983:11). Alexander I Land, which Bellingshausen named in January 1829 assuming it to be part of the continent was shown, 120 years later, to be an island. The Americans have fielded two candidates: sealer Nathaniel Palmer (only 21 at the time) who sailed close to the Peninsula in November 1820 and Captain John Davis, who went ashore on the Antarctic Peninsula on 7 February 1821 - the first recorded landing. According to US historians, Palmer must have seen the Antarctic mainland (see Quigg 1983:11). Bellingshausen and Palmer met off Deception island (Quigg 1983:12; Shapley 1985:8). Shapley suggests (1985:27) that Captain McFarlane in the British ship, Dragon, may have landed earlier than Davis. The first undisputed landing on the main part of the continent did not occur until 1895.
12. David Jaffe believes Wilkes’ journey may have provided the model for the story of Moby Dick (see Shapley 1985:28-29). Wilkes’ expedition was the first to have the official backing of the US government, by virtue of an act of Congress of 18 May 1836 (Hunter Miller 1927:508). Wilkes was courtmartialled, but acquitted, upon his return to the US.
51 the British (Captain James Clark Ross). All three made new discoveries which had implications for later debates over territorial rights.13
Interest in Antarctic exploration waned after 1830, but was revived again in the 1890s by scientific, and territorial, interests. In the next twenty years, several scientific and exploring expeditions were undertaken.14
In the early years o f the twentieth century, Antarctic expeditions, previously confined to coastal regions, sought to explore further inland culminating in the race for the South Pole.15 Roald Amundsen planted the Norwegian flag at the South Pole on 14 December 1911, a month ahead of his rival, Englishman Robert Falcon Scott whose party perished on the return journey.16
From the turn o f the century, whaling became the dominant resource industry in the region. Norway and Britain were the main whaling nations, although ships from Japan, the Netherlands, Russia and Argentina were also active. The over-exploitation which had characterised sealing was repeated by the whaling industry.
Antarctic imperialism
By the early 1900s thirteen countries had, through the activities o f their nationals, established some degree o f interest in the Antarctic, based variously on discovery, exploration, commercial activity and scientific investigation.17 The Antarctic was considered by them to be terra nullius, land owned by no-one, and therefore properly open to territorial claims. During the years from the turn o f the century until the 1930s (at least) Antarctica became "the scene o f a final, frantic phase o f Western imperialism"
13. Wilkes’ expedition followed and mapped the coast of East Antarctica for 2400 kms, and therefore has some political significance for the inchoate US claim. Dumont D ’Urville discovered, but did not set foot on, the coast he named Terre Ad61ie, later claimed by France. Ross discovered Victoria Land, the Ross Sea and the Ross Ice Shelf, which he called the Great Ice Barrier.
14. A Belgian expedition led by Baron de Gerlache sailed in 1897 (with a young Roald Amundsen as first mate). Gerlache was the first expedition to winter over in Antarctic waters (because his ship, the Belgica, stuck fast in pack ice). Borchgrevink, a Norwegian-born resident of Australia (financed by private British funds) headed south in 1898. Borchgrevink was the first to winter deliberately on the mainland and, using sledge dogs for the first time in the Antarctic, reached 78*S, further south than anyone had ever been before. Three major expeditions sailed in 1901, from Germany (von Drygalski), Sweden (Nordenskjöld) and Britain (Scott). Other expeditions in this period included Charcot (1908-10), Shackleton (in 1980 and 1914-15), Filchner (1911- 13), the first Australasian Antarctic expedition under Mawson (1911-1914), and a Japanese expedition in 1911-12.
15. In 1907, Shackleton came within 97 miles of the South Pole. The British flag was raised at the South Magnetic Pole on 16 January 1909 by (Australian) Professor Edgeworth David’s three man party.
16. Scott’s party reached the South Pole on 17 January 1912.
17. Britain, Norway, the United States, Russia, France, Japan, Belgium, Australia, Sweden, Germany, New Zealand, the Netherlands and Argentina.
(Henrikson 1986:3) with the race to acquire new territory on the last place on earth available for expansion. Contemporary observers drew attention to the "familiar Imperialist expansion movement" and "the final manifestation of that impulse to explore ... and exploit new lands" (Anon 1930:221).18
This territorial expansion placed the Antarctic firmly and permanently on the international political agenda. By the mid-1940s there were seven formal claims to parts of the Antarctic, established by Argentina, Britain and Chile (the three claims overlapped), Australia, France, New Zealand and Norway (see attached map). An unclaimed sector, Marie Byrd Land, was tacitly ‘reserved’ for a possible American claim. The claims were contentious. Only five of the seven (Britain, Australian, New Zealand, France and Norway) were mutually recognised. The claimants asserted the right to exercise jurisdiction in their territory over the nationals of any other state, a right not acknowledged by the non-claimant states. Other states with varying degrees of interest in the region argued that the exercise o f sovereign rights could only be based upon the perfection of an inchoate title by effective occupation. The inhospitable Antarctic, they argued, had not been effectively occupied by the claimants and the claims were thus invalid.19
The British were the first to lay formal claim to Antarctic territory, based on prior discovery, exploration, commercial and administrative activities.20 In 1908, by Letters Patent, the Governor of the Falkland Islands was charged with the administration of undefined lands lying to the south. No official protests from other states were received. The claim was further delimited in 1917, to describe a sector with its apex at the South Pole, thereby establishing a precedent for other claims which were to follow.21
The applicability o f the sector principle to the Antarctic claims is hotly debated by international lawyers. Developed initially to support Canadian claims in the Arctic, it relies there on continuity and contiguity. Hayton (1960b:398) has described the
18. There were 169 expeditions to the Antarctic prior to World War II. 75 were sponsored by the British, with the United States in second place with 24.
19. For analysis o f the interests o f the various Antarctic states and the claims see Shapley (1985:65- 82), Hayton (1960b); Quigg (1983:110-141). On the international law debates about the claims and the exercise o f sovereignty see, inter alia, Greig (1978), Conforti (1986), Johnson (1976), Bernhardt (1975) and Honnold (1978).
20. Britain (through the Governor of the Falkland Islands) levied fees on whaling vessels which had to process their catches on land. The invention o f the factory ship in 1926 meant that whalers became less reliant on port facilities.
21. The original 1908 claim mistakenly included parts o f the Chilean and Argentine mainland (Shapley 1985:69). The British claim is to all lands lying south of 50*S between 20* and 50*W longitude, and south of 58*S between 50* and 80*W. This includes the South Shetland and South Orkney Islands, which lie just north o f 60*S, the line used now to define the outer limits of the Antarctic Treaty area, and South Georgia and the South Sandwich Islands which are just south of 60*S.
Segment claimed by Argentina. Britain and Chile QUEEN M A U D LAND / E n t i e r b y / Land c Kemp LandJ WEDDELL v SEA Mac. Robertson Land "^'P n n ce ss \ Elizabeth LandV Wilhelm II Land Queen Mary Land ELLSWORTH LAND BYRD LAND WILKES LAND ROSS SEA V George te? Land 1^55^150° 160° Map 1
The Antarctic Treaty Area: territorial claims Source: Prescott (1981:84)
Note: This map is also reproduced at appendix 1 for ease o f reference.
A N TA R C TI C