Shirley Scott* explains why accusations that Australia is acting as a colonial power in Antarctica should be firmly rebuffed.
Despite having no Indigenous population, Antarctica has sometimes been referred to as having a legacy of colonialism.
However, there is debate as to whether Australia has facilitated, or been an object of, this colonialism.
Described most famously in the 1980s by then Malaysian Prime Minister, Mahathir bin Mohamad, the idea of Antarctic colonialism has more recently featured in some popular and scholarly writing, usually with negative connotations.
There are two primary ways in which Antarctica has been conceived of as an object of colonialism.
The first is via the making of territorial claims on the part of seven States, of which Australia is one.
The second is via the operation of the Antarctic Treaty System, in particular its decision-making by a subset of treaty parties, of which Australia is one.
There are significant problems with Australia being regarded as a colonial power on the basis of either of these interpretations.
First, the question of territorial title: International law incorporates the intertemporal principle, by which a determination of title is based on the international law in force at the relevant historical juncture.
Yes, Australia asserted its territorial rights to the Australian Antarctic Territory (AAT) close to a century ago.
However, the application of the intertemporal principle means that the law of territorial acquisition remains the applicable law by which to assess the validity of Australia’s Antarctic title.
This same body of law has recently been applied by the International Court of Justice to resolve disputes between Indonesia and Malaysia and between Malaysia and Singapore.
There is an often repeated myth that Australia’s title to the AAT is weakened by the fact that only a small number of other countries recognise it.
This is, to use Australian slang, a “furphy”. The law of territorial acquisition does not require acts of positive recognition.
Despite Australia having applied the law of territorial acquisition that is associated with late 19th century colonialism, Australia subsequently agreed to agree to disagree for the duration of the 1959 Antarctic Treaty and to operate as a member of the Antarctic Treaty System (ATS).
This brings us to the second line of argument as to why we might consider Australia an Antarctic colonial power.
This reasoning uses ‘colonial’ in the quite loose sense of there being an inequality of power.
The ATS is sometimes critiqued as being an exclusive club of States that have assumed the right to make whatever decisions they like in relation to the continent and to take the spoils (such as minerals) for themselves.
A refined version of this approach perceives the inner circle of the ATS — the consultative parties who have voting rights at the annual ATS meetings — to be the colonial powers in respect of Antarctica.
The problem with this interpretation is that the consultative parties have self-imposed regulations and restrictions on their Antarctic activities.
These include in respect of resources, and have not asserted an all-encompassing right to hold third parties to those rules.
This means that it would be the States not so far involved in the ATS that are arguably in the strongest position to benefit from the spoils of Antarctica and the Southern Ocean.
There is one way in which it makes sense to say that Australia is involved with an Antarctic colonial project.
The United States, having not put forward a claim of its own, joined by others without title that nevertheless wished to ensure access to the continent, took the lead in the negotiation of the 1959 Antarctic Treaty.
Viewed in this light, Australia was and remains an object of Antarctic colonialism as opposed to a colonial power.
In agreeing to the terms of the treaty, Australia has actually restricted the full exercise of its own legitimate power as opposed to assuming additional power.
Australian officials were aware that in agreeing to the treaty, Australia was engaged in an act of self-denial for the greater good, at least for so long as the treaty is in force.
Other treaty parties would not be required to respect Australia’s sovereign rights, but Australia would be required to respect their position while also doing sufficient to retain its own legal position — unless Australia were to go so far as to relinquish all territorial rights.
Australia should not accept any accusation that it is an Antarctic colonial power.
The importance of the Antarctic continent and surrounding ice shelves and oceans to the global environment means that there would be very real stakes at play for the whole international community were Antarctica to be left as a free-for-all.
Worse still, a competing institution might be established whose participants seek to undermine the levels of environmental protection to which ATS members have agreed.
Australia’s interests call for a mature line of diplomatic discourse and a preparedness to rebut dangerous claims of colonialism-on-ice.
*Shirley Scott is Professor of International Law and International Relations in the School of Humanities and Social Sciences at the University of NSW Canberra.
This article first appeared on the Australian Outlook website of the Australian Institute of International Affairs.
