Reconciling Regional and Global Dispensations: The Implications of Subantarctic Extended Continental Shelf Penetration of the Antarctic Treaty Area

Abstract

Considerable attention has been focussed on the difficulties posed by Antarctic claimants seeking to realise coastal state rights in the extended continental shelf appurtenant to claimed territories pursuant to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Those claimants that have so far made submissions to the Commission on the Limits of the Continental Shelf (CLCS) have each in some manner shown sensitivity towards the unique legal and geopolitical realities surrounding the question of Antarctic territorial claims. By comparison, little attention has been focussed on the subantarctic islands north of the Antarctic Treaty Area, that is beyond 60 degree south latitude. These islands, aside from the South Georgia and South Sandwich groups which are subject to a broader dispute, appear to be regarded as unproblematic. However, as the largely successful submission by Australia to the CLCS indicates, CLCS recommendations in relation to subantarctic islands may result in substantial extended continental shelf (ECS) penetration into the Antarctic Treaty Area. This situation raises interesting questions in relation to the established collective management of the Antarctic. For the first time there appears to be an objective international assignation (via UNCLOS and the CLCS process) of individual state rights to areas within the Antarctic Treaty Area. Whereas claimed territory within the Antarctic Treaty Area remains 'frozen' territory beyond the Antarctic may now be seen to generate preclusive rights within it. This, perhaps unanticipated Antarctic paradox, is the focus of this article.

Keywords: public international law, Antarctica, law of the sea, extended continental shelf, Commission on the Limits of the Continental Shelf

JEL Classification: K10, K30, K33