Professor Donald Rothwell is an expert in International Law at the Australian National University, with a particular interest in the polar regions.
We asked him a number of questions following today's news that Russian scientists have drilled down to a sub-glacial lake. What regulates such activity? Just who can drill for what, where?
Is the drilling at Lake Vostok on 'Russian' territory?
No, because Antarctica is subject at the moment to seven territorial claims, the great majority of which are not recognized. Most importantly for Australian purposes, the Russian scientific research in the area of Vostok falls within the Australian-proclaimed Australian Antarctic Territory. Though under the provisions of the 1959 Antarctic treaty, Australia's ability to assert sovereignty and legal claims with respect to Russia's activities are severely compromised.
Would Russia have had to liaise with Australia to go on 'it's' territory to do the research?
The context is important here. Russia has had scientific bases located within the Australian Antarctic Territory for over fifty years, so there's an established and good working relationship in this part of Antarctic. There are clear obligations for countries to undertake environmental impact assessment to make other countries aware of the details of their scientific research.
The below image, courtesy of www.nationmaster.com , shows claims to Antarctic territory, not universally agreed territory or acknowledged sovereignty.
The Americans have refused to assert any claim over Antarctica – they're in much the same position as the Russians. They have major bases at the South Pole and at McMurdo. The British also have a significant claim over Antarctica but that claim is disputed by both Argentina and Chile. When we talk about the ability to conduct scientific research in Antarctica we're talking about quite a different situation to that which occurs elsewhere in the world.
The 1959 Treaty was designed to ensure the encouragement of the freedom of scientific research in Antarctica, which is exactly what's happening.
And that's been adhered to?
Yes, there was concern in the 1950s that Antarctica could degenerate into a series of major clashes over territory. The treaty was adopted with the objective of ensuring scientific research for the benefit of all mankind.
Do some countries claim sovereignty, and others are just happy operating bases on 'open land'?
Very much so. Both the Americans and Russia are the prominent examples; neither exerts claims, but from an international legal perspective they'd have a strong case. Up until the adoption of the Antarctic Treaty they failed to do
Why haven't they made the claims?
Since 1961 when it was in force, they've been barred from making claims as a result of the Treaty, and in the lead up they never got around to it for a whole load of political reasons.
So all other claims were made before 1961?
That's right, so Australia's was formally proclaimed in 1933.
The Antarctic Treaty has also implemented a moratorium on drilling for oil and gas?
That's right, the Madrid Protocol of 1991 which sits under the Treaty has put a moratorium on drilling on the continent and surrounding oceans. It will remain in place to the middle of this century, but raises a number of issues; what is mining and what is legitimate scientific research? And as the world looks for additional oil and gas in particular, will it hold into the future?
So some countries with claims are waiting for those resources to open up?
It could be said there's a bit of a waiting game going on here. To that end, Australia, which claims 42 per cent of the continent, is well placed for what might be a changing situation. We might see some more pressure on whether the moratorium is viable into the latter part of this decade or the 2020s.
Who recognises Australia's claim?
It's an interesting question; the other claimants that recognise Australia's claim also make claims: the UK, France, New Zealand and Norway, so only four countries.
How closely tied to claims for the land are claims for the seas?
International law recognises that if you can legitimately claim land, you can assert claims and regulate activities in the adjoining seas and oceans. This at the crux of the difficulties Australia has faced implementing laws against Japanese whalers in Australian Antarctic Treaty; Japan doesn't recognise the legitimacy of the claim.
What are some of the other principal disputes?
We continually see a lot of diplomatic to-ing and fro-ing between the UK and Argentina over their claims. Argentina, and to a lesser degree Chile, have been quite assertive in terms of trying to further substantiate their claims, highlighted in recent years by assertions of some of these countries to offshore continental shelf claims, directly linked to oil and gas claims in the Southern Ocean.
What about newcomers: If the Democratic Republic Congo sent someone down and tried to make a claim, would they be shunned?
It's not such an absurd question. It's rarely understood that part of Antarctica remains unclaimed; on top of the seven claims there's a remaining sector. Theoretically, other countries outside of the Antarctic Treaty system could go down there and make a claim; but no one has ever done that.
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