From the New Geopolitics of Resources to Nanotechnology: Emerging Challenges of Globalism in Antarctica

The Yearbook of Polar Law

Volume 1 (2009)

Edited by

Professor Gudmundur Alfredsson, university of Akureyri,Iceland and University of Strasbourg, Frartce

Professor Timo Koivurova, Northern Institute for Environmentaiand Minorit)' Larv, Arctic Centre, University of Lapland, Finland

Special Editor for Volunte lDr David Leary, University of Nerv Soriti-r Wales, Australia

]VIARTINUS\LIJFIOEEPUBI, ISFIHRS

I,EIDEN . BOSTON2009

From the New Geopolitics of Resources toNanotechnology: Emerging Challenges ofGlobalism in AntarcticaAIan D. Hemmings*

Abstract

The Antarctic regime does not face imminent collapse, but its apparent calm dis-guises significant ecological and geopoliticai instability. Over the past 15 years,the picture of human activity in Antarctica has transformed from one stili heavilyterrestrially focussed, dominated by national Antarctic programmes, largell' sciencefocussed, and situated within a Cold-lVar geopolitics, to one where diverse activities,increasingly including the marine environment, involving a tluch wider group ofactors and commerciai imperatives, is the norm. Globaiisrn has brought new pres-sures, and increased intensiLy of pressures to Antarctica. Whilst the existing Ant-arctic Treaty System retains a theoretical capacity to develop standards and provideregulation, it has shown no obvious inclination to do so for a decade and a half.Critically, the sysiem seerrs to have iost confidence in Antarctic exceptionaiisrn asits organising principle, and to lack administrative capaciry tc address substantiveissties. Given technology's overcoming of the natural defences of Antarctica, if glo-balism nor+'denies us the capacity to treat anpvhere differently and thereby disablesthe principie of Antarctic exceptionalism upon lr,hich international governance ofthe region u'as predicated, Antarctica faces severe dificulties. This paper argues forcontinuing special treatment of Antarctica and a nelv deliberative exceptionalism. Itsuggests that significant unresolved issues within the present Antarctic dispensationneed attention, notably the beginning of a debate on the abandonment of territorialsovereignty claims, a rnol'e coherent institutional developrlent and the establish-rlent of a political level Meeting of Parties in addition to the current officials-onlymeetings.

Associate Prof'essor, Gaterva), Antarctica Centre for Antarciic Studies ald Research, Universityof Ctrnterbury and Research Associate, Institute of Antarctic and Southern Ocean Studies,University of Tasmania. Based in Canberra, Australia. Email: [email protected].

56 AIan D. Hemmings

I. Introduction

Antarctica today appears to be significantly more unstable than at any previ-ous time since the acioption of the Antarctic Treaty in 1959,1 notwiihstandingthe apparent calm N,ithin the political fora of the Antarctic Treaty system(ATS). This instability attaches to both its ecological (including biodir.ersityand rvilderness values) and geopolitical circumstances. In a world, as usual,beset by more obvious and immediate instances of instability, and with theArctic once again attracting both specialist and public attention, any intima-tions that the Antarctic dispensation is other than secure risks being seenas alarmist and unreasonable. This paper tries to show u,hy the concern isreasonable and, rvhilst not arguing that the apocalypse has arrived in the farsouth, argries for sone greater attention to the challenges facing Antarcticaby the wider international community than has been evident over the 17years which have elapsed since the last sribstantive updating of the ATS.

"Antarctica" is taken here as the entire area - continent, islands and ocean -south of the Polar Front or Antarctic Convergence. The northern boundaryof the Convention on the Conservation of Antarctic lularine Living Resources2(CCAMLR) Area is an imperfect approximation. lVhere once such an ateacould be said to ernbrace the "southern Ocean", with the International Hydro-graphic Organisation's 2000 delimitation of the Southern Ocean as the areasouth of 60' South Latitude (coincident with the Antarctic 'lreaty Area), it isnorv the Southern Ocean p/as. Politically and historically, over the past half-century, this "Antarctica" has been largely the sphere of the "Antarctic TreatyS).stem", comprising the Antarctic Treaty, Convention for the Conservationof Antarctic Seals (CCAS),3 CCAh4LR and the Protocol on EnyironmentalProtection to the Antarctic Treaty+ and their subsidiary arrangements -although, as this paper argues, this is nolv changing.

"Biodiversity", whilst now an estatrlished concept in Antarctica, is a termextraneous to the ATS and still not much used therein,5 although its product,"biological prospecting", is currently under discussion at the annual Antarc-tic Treaty Consultative ivieeting.

, 402 UNTS 71., 19 ILM 841.r 11 ILM 251.1 32 ILM 568.s In 2008, although a 2nd order priority in its Strategic P1an, the tel'm appeals onlv 11 tirnes

in the Report of the Comrnittee for Environmental Protectior.r (CEP XI), and just once inthe Final Report of XXXI Antarctic Treaty Consultative fuleetrng, and rnost of these arereferences io external documents.

From the New Geopolitics of Resources to ltlanotechnology 57

"wi1derness", by contrast, is explicitly used in the ATS. First used inthe Convention on the Regulation of Antarctic Mineral Resource Activities(CRAMRA) in 1988,6 it n'as snbsequentiy used in the protocol. As elsewhere,"wilderness" in Antarctica is stil1 largely conceived in terrestrial terms, andthere are no references to it in cCAMLR. In ihe protocol, and subseqr_rentAntarctic Treaty consultati''.'e Meeting (ATCI4) discussions, the term isused in two significantly different rvays: as essentially a statement of politicalintent about the value and status of the Antarctic, and secondly as one of asuite of values upon r,vhich environmental duties are justified. In the latterusage it is most clearly used in relation to the designation of protected areas.However, it has not really been used operationally in Antarctica. There areno protected areas designated primarily for their rvilderness qualities, far lessciear evidence of an intention io designate areas analogous to IUCN's pro-tected Area Management Category 1b "Wilderness area".7

2. Antarctica's Fifth Age

One may periodise history in Antarctica as r,r,ell as in any other place:

1. The phase of speculation and conjecture lasting from antiquity into earlyinodern history;

2. The phase of maritirne discovery, involving exploration ancl expioitationfiom the late 18th to the close of the 19th centuries;

3. fhe phase of periodic continental penetration originating in the early 20thcentury "Heroic" era and continued intermittently through the inter-warperiod;

4. The phase of permanent presence and a conception of Antarctica as a"continent for science" post wwII, which nas gir.en particular force bythe International Geophysical Year (IGy) and the adoption of the Ant-arctic Treaty, as a result of rvhich it became i'tematioralised.

whilst some lr.iil no doubt see us as essentially still in this fourth phase, inmy view rve are now into a nel,!' (a fifth) phase or age. Most transitions arefuz-.7' yd searching for a def itive date to mark the arrivai of the new ageis likel1, here to be ilnrer,varding, but it seems to have occurred durine themid-1980s and early-1990s. over this period some rather profound strategic

27 |Lil,I 868, Article 2(3)d"See Nigel Dudley, ed., Guidelines .t'or App!1,i11g protected Area Martagentent Categories(Gland: IUCN, 2008), t4-16.

Alan D. Hetnmings

changes in circumstances occurred globally. After something of a surge, theCold-War went into decline and ended; iechnology (as aln'ays) improvedand (critically) in areas that facilitated actir.ity in the Antarctic, and (per-haps most criticaily) that technology became available to a r,vider suite ofplayers, including non-state actors, than just the states which had hithertooperated there. Antarctica acquired a pubiic profile - largely as a result of thedecade-long squabble over acceptable Antarctic futures around the miningissue - and whiist the minerals genie was (although perhaps only temporar-ily) confined, marine living resources exploitation and then tourism took offThese two sanctioned resource uses were greatiy facilitated by the substantialknowledge-base accumulated through decades of Antarctic research, and inthe case of tourism by the post-Soviet availability of vessels and expert crewsat knockdown prices.

Over a period of a little more than a decade, the picture of human activ-ity in Antarctica changed from one that was still largely focussed on thecontinent and adjacent Antarctic and subantarctic islands, dominated bystate-directed national Antarctic programmes, still largely focussed on sci-ence (but with an eye to securing national positions for the long-term), withnational orientations reflecting the bi-polar Cold-lVar world; to one wherediverse activiiies (increasingly in the marine environment) involving a muchwider group of actors (commercial operators, enr.ironmental NGOs, newiy-emergent states), commercial irnperatives and national bene{its rvere norv invierc. There were (and are) continuities, but the norms and atmospherics ofhunan engagement with Antarctica have changed rather signi{icantly, notleast in the speed r,vith which they are unfbiding. These are of course familiarmanifestations of the dominant post Cold-War ideology - giobalism - andthe social processes we consider under the 1abel globalisation.s

3. The Antarctic Present

The Antarctic present is one in rvhich the famiiiar National Antarctic Pro-grammes (NAPs) stiil dominate year-round Antarctic activity on the Conti-nent itself, but rvirere summer tourism is now responsible for a vastly greaternumber of persons than NAPs ashore, and deploys many more ships and per-sons in the marine environment. Fishing probably deploys more vesseis than

3 Considered in more detail in:Er-rding of Antarctic Isolation,"K. Krirvoken, ]ulia Jabour andt76-r90.

Alan D. Hemmings, "Globalisation's Cold Genius and tire1r Looking South: Australia's Antarctic Agenda, ed. LorneAlan D. Hemrnings (Leichhardt: Federation Press, 2007),

From the New Geopolitics of Resaurces to Nanotechnology 59

either tourism or NAPs.e There has been something of a spike in NAPs actir'-iiy as a result of the International Polar Year (IPY), rvith some nelv stationsand activities ashore and substantial ship-supported activity in the marineenl.ironment. But beyond this spike, rvhilst the pattem of NAPs activity ischanging (deeper continental penetration, more marine activity, increasinguse of autonated platforms, fer.ter over-winterers) personnel numbers andinfrastructure appear to have ievelled, and in some areas declined. Tourismand fishing trends are horvever still upwards. So, there is a relative shift inthe contributions of NAPs and non-state operators in Antarctica, althoughthis is stil1 bufl-ered by the much longer residence times of NAPs scienceand support staff, and the infrastrr.rcture necessary to support them. Overall,rneasured by r.arious indices (number of people, number of vessels/aircraft,area visited, range of activities, peak intensities at sites, etc.) human activityin Antarctica is steeply irrcreasing.

Compor.inding this is the increasing porosity of Antarctica's boundaries. Inthe panglossian past, not only were human activity levels in Antarctica lor.t'erthan now, bui a sort of cordon sanitaire existed around it where no activityoccurred. This is no longer the case, and this zone is notv itself the subjectof increasing activitl. (fishing, so-called innocent passage for commercial andother purposes, and perhaps in the near-friture minerai resoulce activities)n'hrch can spil1 over into the Antarctic area. The present unresolved issuesbetrveen CCAN4LR and CCSBT around respective responsibility for manag-ing southern blue-fin tuna is a case in point.li'

a. R{ttional Use?

These activities, individuaily and collectiveiy, put greater pressures on Antarc-tic envirotrtnental and other vaiues. Han.esting activities clearly pose issuesof sustainability * and broader issues of legitimacy - in relation to biodiver-sity. In Antarctica, questions of sustainability seem often to be assumed toapply only to actually or potentially unregulated activities - the best known

e Tourism puts about -50,000 persons a 1'ear into the Antarctic, of r.r.hom around 45,000 arepayirg passengers, alound 32,000 ofwhom are landed, NAps probably place no more than10,000 persons a 1'ear into the Antarctic, around 7,000 of u.hom are ashore, rvith a peakstlnrmer stzrtion population estimated at aiurost 4,000 persons. Fishing activity figures aremuch iess ciear, but nay be in the order of 10,000 persons - all at sea. Bioprospectingactivity is still laurdered through NAPs and in the iibsence of s1,s1s1nn1i. data collectionis consequenilf irlrpossible tcl scale or distinguish lrom cor-rventional scientific activity atpre.sent.

!r' Alan D. Hemmings, "Regime Overlap in the Southern Ocean:'Ihe Case of Southern Bluefin'l'una and CCSBT in the CCAMLR Area," New Zealand Yearbook of International Law 3(2006): 207-217.

60 Alan D. Hernmings

of ivhich has been Illegal Unregr.iiated and Unreported (IUU) fishing in theCCAMLR area - with ATS sanctioned activities often assrimed to be sus-tainable. In some instances this rrray be reasonable, at otirer times it inay bea less secure a priori assumption. The effects of some fishing technologiesand practices, particularly long-lining for toothfish species, on albatross andother seabirds (and on other non-target marine taxa) in Antarctic watersover the past decade are well known. Bioprospecting, despite the comfort-ing fiction that it is a victimiess and small-scale harvesting, may in someinstances present famiiiar environmental impact problems. Environinentaiimpact as often results from the process of the activity as from the intention -and the fact that you may only require the celebrated "teaspoonfui" of theexciting extremophile is no guarantee that you will not trash a larger areain getting it.

The Antarctic regime has seen the familiar dualism in relation to standardsfor marine and terrestrial environments. With a limited range of harvestablegoods ashore, once seaiing (both commerciai and for support of NAPs dogteams) ceased, the emerging enr.ironrnentai ethic on the continent saw "con-servation" conceived cluite rigorously. It was legitimate to handle or kill thefauna for science, but that generally required a permit, and, through injunc-tions against "harmful interference", the ethical and environmental bar t'n'as

raised.In the marine environment of course, no such impedirnents tvere seen.

Whaling presents the starkest example. One can do things to these marilemammals under the non-ATS International Convention for the Regulationoi Whaling,li given effect by the lnternationai Whaling Commission (IWC),ihat the Protocol .,vonld probabiy preciude you doing to an elephant sealeven r,vith a permit (and certainly the Specially Protected Ross seal). But theciearest example is found in CCAMLR, lt'here "'conservation' includes ratio-na1 use".t2 To the extent that actrvities such as bioprospecting occur acrossrnarine and terrestrial environments in Antarctica, might \{re see itrcreasingpressures to bring "raiional use" into the frarne under the Protocol and Ant-arctic Treaty Measures or Resolutions? There may be a n'ider issue here. Forsome of us, understanding aird applauding the improved population statusof fur seals that made their delisting as Specially Protected Species ratiotral,the thought that this might be taken by some as a sanction for "rational use"is not so comforting. A sort of "rational use" is perhaps already evideni inthe seeming discounting of tourism pressures on scientific values (and com-

t] 161 UNTS 74tr Article I1.2.

From the llew Geopolitics of Resources to Nanotechnologl, 61

petition between the tourism industry and science programmes in relationto access) at some sites on the Antarctic Peninsula.

b. Hard-wiring Antarctica

To say that the arrival of cornmercial interests is a significant factor in thead'n'ent of the Fifth Age is not to say that it is the oniy factor. Paraileling theincreasing penetration of these actors has been the logistic hard-lviring ofthe continent and its waters by NAPs. Over-surface traverses have been usedto conduct science and support a few plateatt stations (the Russians havelong supported Vostok in this manner). The recent high-profiie constructionof a route (there has been a sterile dispute about whether this was or wasnot a "road") betrveen ivicMurdo and the South Poie by the United Stateshas obviously been seen as the most potent symbol of the transformation ofAntarctica. \4thilst shipping netrvorks are by their naiure a little less rigid,there are nou/ some clear maritime corridors in Antarctica, and betr,veen theso-called (and intensely competitive) "Gatervay" ports of the Souihern Hemi-sphere and Antarctic:'.

However, the most significant development is probably the evolving airnetrvork around the continent, lvhich has seen air entry routes from SouthAmerica, Africa, Australia and bierv Zealand coupled lvith intra-Antarcticroutes so that soon, if not aiready, it will be possible to reach Antarctica atvarious points around its periphery and thereafter fly anlnvhere else on thecontinent. Although much of this air netu.ork is still NAPs-only, parts arenot, various private operators are involved in even the NAPs components,and there is significant commercial interest in either accessing the netu,orkor buiiding commercial components onto (or alongside) it. Perceived com-mercial benelits include tourist industry interest in new sorts of niche activi-iies, fly-sail options,tr and as a mechanism for airborne mass tourism withits scale and time-zone benefits; and fishing industry interest in crerv andproduct changeover. Beyond objective operational adr.antages, for ciaimantstates (aside any interests they mav have in fostering or controlling tourism)there is also the perception that arr links are tangible tokens of sovereignty aswell as useful coinage in exchanges with other Antarctic operators.

The air netrvork and the more slon4y developing surface hard-wiring wouldin nrost other parts of the iritlierto-rernote world be seen as, inter alia,havingsome bearing on the r'r'ildemess status of the area. Remarkably, aimost nocomment of this sort has been evident in Antarctica, and certainly not in the

r F11,-sail operations see passengers (and potentially changeor.er crew) flown to/fi'om thecontinent rvhere theyjoin ships rvhich are spared the need (rr.ith associated cost and non-Antarctic "dotvir-time") to do multiple transits to/from Antarctica.

62 Alan D. Hemmings

formal sessions of the ATS. As noted above, rvilderness may be a deciaratoryconcern of the Protocol, but it is not mr.rch deveioped in practice.ra

c. Pressures at a New Level?

These pressures have been with us in Antarctica for some time. They did notappear de novo in our Fifth Age. They are however more acute in this age,precisely becatise "use" in all its forrns is at the yery core of the new com-merciai interest in Antarctica. Traditional Antarctic science lvas of courseconsumptive too, but in a di{1-erent lvay and on a different scale. it couid alsoclaim a broader public interest rationale.

The capacity of (say) the tourism industry, moving tens of thousands ofpeople through an interesting site over years, to alter that site; the interests ofa large multinational pharmaceutical corporation searching for commerciallyuseful genetic materiai; the concern of fishing companies (with their cornpiexnested "Russian Doll" olvnership and control arrangements) to secure highvalue product at the lotvest possible cost, is of a different order from thecapacity of most NAPs to modify the Antarctic environment.

The conventional response is to point to the capacity of the ATS to imposestandards and regulation on the area. This is an obvious response, and stilia valid rvay of addressing the challenges evident there. Honever, whatevertheoretical capacity the ATS has to do this, it has done r.ery litile norv for adecade and a half; shows no present inclination to resolve anl.thing (far lessnegotiate further subsidiary legally-binding international instruments); andseems to a considerable extent to have lost confidence in the acceptabilityof Antarctic exceptionalism as its organising principle. Administrativelf ilappears to lack capacity to address substantive policy rnatters, ald consen-sus decision-making has in practice now meant not doing very much at al1beyond lorv level status quo management.

4. Globalism's Children

a. The Rejection of Exceptionalism

Perhaps the greatest challenge faced by the ATS is globalisn's implicit rejec,tion of its central tenet: particular management of the Antarctic as the Ant-arctic - a belief in the instrumental merit of managing this place on a regionalbasis, as some sort of bounded entity, differently from elsewhere.

tr Tina'Iin, Alan D. Hernmings and Ricar-do Roura, "Pressures on the nilderness values ofthe Antarctic continent," International JoLtrnal o-f lVilderness l4(3) (2008):7,1.2.

From the New Geopolitics oJ Resources to Nanotecfutology 63

That this \{as evel possible is obviously a prodrict of particuiar historicalcolliingencies: the unresolved territorial sovereignty situation of this last-reached bit of the planet; the Coid-War context; the very limited number ofstates invoived and their very limited capacities in Antarctica; and the verylimited extent of conpeting intemational lar,r, and institutions. In short, itr,vas predicated on constraints.

'L1te modtts oper*ndi of the emerging ATS u'as to address issues as andlvhen they' arose through specificaill, 6,,tur.t . dispensatioas - n'hether viaAntarctic Treaty Recommendations, or new instrurnents such as CCAS,15CCAlviLR, CRAMRA and the Protocol. Folloning the Antarctic Treaty itself,the ATS rvas buiii b]' the additiol of a uen' instrumelt per decade until 1991.With the end of the Coid War, in Antarctica as elservhere multilateralisrnrveut into a relative decline from rvhich it iras still (and certainly in Antarc-tica) to elnerge. The difitcLrlty is that the hiatus in regime development since1991 has coincided rvith ihe greatest period of gron'th in hurnan activitvthat the Antarctic has seen - the steep gro'n.th in fishir-rg and tourisrn, andthe appearance of bioprospecting. In the event that the ATS rvere to revertto its historic pattern of responding to issues on an Antarctic-regional basis,it rvould norv f-ace a substantial backlog of potential candidate issues. Whilstnot insurmoilniabie - particularly if there is nolr' anlr\ray a case for a moreinteglated treatment of issues ihan the piecemeal approach of tl-re past - itcertainly adds to the dificulty.

There are rnanl' firctors at plar. beirind the hiatus in ATS-building. Asnoted abor.e, Atrtarctica has not been immr.rne to the generic post Cold-Wardecline in entiruslasm for multilateralism. Possib\' the fact that Antarcticaemerged, rvith the adoption of the Protocol in 1991, fron a decade of intenseactivity, just as rnultilateralism lost favour global1y, exacerberted the situationthere. There r.r'as, in any case, the read;' argument that bedding,iir the neu'obligations \{as a necessary fbcus, rather than further ATS development.

The substantiai deveioprnent of non-A'lS international1an in the 1980s andearl1' 1990s also impinged, most notabll. in relation to the Ui'i Conventiott ortthe Latt, oJ the Sea (LOSC),16 the Conyention on Biological Dit,ersity (CBD)l?and the K)'oto Protocol.lE Since these plovided ngu, global fora for atteniionto issues that applied also in Antarctica u,iihoui being "centred" there, theymay have unclercut the case for attentron rvitirin the ATS. certainly iheyseerr to have beeu taken as argurlents argainst special Antarctic attention to

rr Colventiorr for the Conscn'ation'" 21 i1_N{ 1261.]; 31 II.M g18.

'" 37 ILi!{ 22.

of Antarctic Seals 1080 UN'IS 17-;.

64 Alan D. Hercmings

particular issues. We have seen various manifestations of the nerv tensionbetween these global regimes and the ATS, including: arguments that iheATS should not stray into areas covered by these as a rnatter. of laiv or prin,cipie; that technical development shor,rld first be undertaken through iheseinstrnments before considering any particular Antarctic implementation;and a r,vish to not risk creating unfortunate precedents in the Antarctic con-text in adyance of greater clarity at home and in these other regimes (whichseems to have been a significant factor in relation to bioprospecting).le Afurther complication has been the fact of the United States, Antarctica's big-gest player, not having ratified these three key non-ATS instruments.

The increasing market-orientation of public poiicy giobaliy has Ieft itsrnark in Antarctica too. This is most evident in the instance of Antarctictourism, where key states have iargely (the picture has changed slightll' oyslthe past tlr.o years) accepted the argument of "self-regulation" through therelevant industry association, and natural limits on the industry through"the market". There are some interesting buttresses to this argument aroundthe reinforcement of territorial sovereignty and countering of terrilorialpositions. As a result of this array of factors, a sort of Antarctic minrmalismhas been established in relation to some activities, such as tourism, lvhich isonly now being challenged follor,r'ing sorne maritime incidents.

This has had a practical effect on the l,r,iliingness, capacity and (to theextent that anything has happened at all) timeline for responding to realissues affecting the Antarctic environment.

b. Conjoined Twins - Resource Interests and Nationalism

Global climate change impacts on Antarctica are going to be massir.e andserious, and ihe scientific evidence (much acquired in Antarctica) has beengetting steadiiy more alarming, and particularly so over the past t\,,,o yearsas new data on changes in the Antarctic marine environment har.e becomeavailable. Remarkably, only in 2008, at the XXXI ATCM in Kier., rvas climatechange on the agenda - and only just, as a sub-item to Agenda item 9. "Enr.i-ronmental Monitoring and Reporting". There is little evidence that climatechange is yet impinging on the perception of the polar regions as futurehydrocarbon sources, although the Antarctic has not attracted the attentionof the Arctic, and has in place a formal prohibition on mineral resourceactivity under the Protocol.2tr

re Alan D. Hernnings, "A Question of Politics: Bioprospecting and the Antarctic Treaty Sys-tern" in Antarctic Bioprospectittg, ed. Alan D. Hemmings and Nlichelle Rogan-Finnemor.e(Christchurch: Gateway Ar"rtarctica, 2005), 9B-129.

20 Article 7.

From the Ney, Geopolitics of Resources to Nanotechnoktgy 65

Potential resource access via the extended continental sheif (ECS), and theassociated issues of boundaries, security and nationalism that this has trig-gered, has been the dominant polar issue for the past several years, as statesseek to secure their prerogatives under Article 76 of LOSC. Antarctic ciaim-ailts are currently trying to square the circle in relation to the ECS appurte-nant to their Antarctic territorial claims and those parts of the ECS based onterritory outside the Antarctic Treaty Area r,vhrch nonetheless penetrates thearea.rr Australia included the Australian Antarctic Territory ECS in its sub-mission to the Comrnission on the Limits of the Continental Shelf (CLCS),but asked it to not process that part, and New Zealand and the United King-dom har.e made partial claims that exclude for the time being their Antarcticclaims. Other claimants are in process of data collection.

lVhilst there is a clear sensitivity about the relationship between the Ant-arctic Treaty Article IV provisions and coastal state rights under UNCLOSArticle 76, and no immediate signs that claimant states expect to realise rightswithin the Antarctic Treaty Area, or challenge the Protocol Articie 7 min-ing prohibition, resource and territorial sovereignty issues have been givensharper profile again. The possibility of future mineral resource rights hasbeen raised. Whereas Article 7 imposes some restraints for the tirne beingin relation to minerals, no such forrnal ATS obligations exist in relation toother resource issues attaching to the ECS * rnost obviously, bioprospecting.The intimation of riches has excited nationalism within the claimant states(not only on the part of the state itself, but by influential opinion-makerswithin its society), and that may pose some challenges for the dynamic of ther,vider ATS. To take just one example: the possibility that Australia may seeiiself as havrng particular rights in relation to bioprospecting on the HeardIslands and X4cDonald Islands (HIMI) ECS, even rvithin the Antarctic TreatyArea, hardll. makes it easier for ihe ATS to itself develop a response (far lessa regime) for the already complex bioprospecting issue.22

Sovereigrtty prositions have aln'ays lurked behind national Antarctic poli-cies and stances at ATCMs and CCAIvILR Commission meetings, but thepossibilities inherent in ECS claims have given a ne\ / edge to these, sincethey relate so tightiy to the claimants' sense of their orvn entitlernent andtangible benefits (rvhether or not ii is realistic to expect they wili ever realisethem). In the more complicated area of the Antarctic Peninsuia rvith its three

2r Alan D. Hernrnings and Tim Stephens, "Australia's extellded continental shetl What Impli-cations lbr Antarctica?'" Public I.nw Ret,iett,20 (2009): 9-16.

" Ibid., and: Alan D. Hernnrings and iVlichelle Rogan-Finnernore, "Access, obligations andberrelits: regulating bioprospecting in the Antalctic," in Biadit,ersity Conservation, Lau, +Livelilrcods: Bridging tlrc North-South Divide , ed. Michael L Jeftery, leremy Firestone a1dKaren Bubna-Litic (Carnbridge: Cambridge Unir.ersity press, 2008), 529-552.

66 Alait D. Henunings

claimants, activitl, by a large nuinber of other states which reject clairns, andthe area for most current Antarctic tourism and appreciable fishing activity,the pictr.ire becornes particularly interesting.

Nationalism has not just arisen through state action in Antarctica. Onthe basis of a state's declaratory position on something like territorial sov-ereignty, or variations on manifest-destiny, non-state actors are inclined todeploy sirnilar arguments in pursr"rit of their Antarctic irgenclas. Thus, theAntarctic tourism and fishing industries of Australia and Nerv Zealand (andno doubt others) seek prefbrential access or conditions or support becausethe area rvithin rvhich they seek to operate is cast as national territory insome sense. Some environmental NGOs also pick this up, arguing particn-Iar duties of state X because it claims the area iir questioit, or because thesought-for stauce lvill be beneficial for that state in claimant terms. Probablythe most extreme version of this operational approach has been HumaneSociety International (HSI) in Australia using a piece of domestic larv to seekan injunction through the Australian Federal Court againsi Japanese n halersin ':Austraiian" rvaters ofi the Australian Antarctic T'erritory.r3 The patirwayfrom a sense of national entitlement to nationai priorities and projection inAntarctica rnay be shorter than peopie are inclined to hope for.

c. Little Emperors - Indulgence and New Toys

Elservhere I have argued that rve are "increasingly situated in consumel soci-eties, n'here entertaitrment, travel and personal ful{riment are the nelv rights"and tlrat "this has created a trerlendous market for. inter alia, Antarcticgoods".2' The Antarctic tourism industry is the most obvious beneficiary,but one has oniy to cornpare the number (and pitch) of books on Antarcticain general book stores today rvitir rvhat u'as available 20 years ago to seethat a substantial "arm-chair" audience has also been created. One hopesfor bene{its, through an increased al\rareness of the beauties and values ofAntarctica, and a greater appreciation of the pressures on Antarctica, andsome sense of empou'ennent in reiation to ensuring its preservation. But, assotnebody inr.olved in civii society's engagement rvith Antarctica since thernid 1980s, I see not rnuch sign that this is in fact happening. One fears thatwe are, again, confusing the rather difl'erent concepts of entertainment andeducation. Indeed, one of the nore depressing deveiopments over the pastfir'e )'ears is the emergence of rvhat rnight be termed "faren'ell tourisrn", trips

Aian D. Hemmings, "Problerls posecl b)' attentpts to trppll' a clairnant's domestic legisla-tion bel,ond its cxvn nationals in Antalctica," Asin Pacif c laurnol oi Ettvirttnnrctttttl Lon' 11(3&4) (200s): 207-220.Nore 8: i86.

From the Ney, Geapolitics of Resources to Nanotechnology 67

to places that the tourists fear are fated to be destroyed or lost, and there aresome signs of this in Antarctica.

It is not rny wish or intention to abuse tourists per se, but tourism can haveunintended consequences in Antarctica which are as problematical there aselser,vhere. Nurnbers, activity patterns and increasing penetration pose hugeproblems which har.e to be attended to if we are not to see long-term seriousimpacts upon environmental, scientific and nider international pubiic goodsin Antarctica (and here ',vithout the alleged benefits to local or indigenouscommunities that is so often argued elsewhere, including in the Arctic). Not-withstanding the fact that we now see substantial discussion of tourism atATCMs, getting any agreement there on any sorts of limit seems as far awayas eyer. "A Continent for Tourism" is a not entirely fanciful potential suc-cessor to the Fourth Age "Continent for Science"!

if scale and irajectory are the cutting edge of the tourism problem, theincreasing sophistication of NAPs occupation of the continent is at the edgeof the state problem. The number of stations and the number of people onthe ground ma)r be declining, but the requirements of those that are thereseem to trend ever upward. Since rt'e non' expect high material standards,and not unreasonably high safety standards, we see a constant stream ofnen' materials or products rvith our NAPs (and of course with our non-stateoperators). The risks of such materials obviously vary, but include potentiaiadverse environtnental effecis. Deiiberate and inadvertent carriage of exoticorganisms and novel substances to Antarctica is not of itseif new, and wehave seen the codification of standards and duties in relation to some withinthe Antarctic instruments. Hou'ever, the approach has been piecemeal ratherthan systematic, and the hiatus in ATS regime developrnent means that heretoo $'e har.e seen r1o great development in a decade and a half. A protractedand nncompleted review of Annex II of the Protocol seems unlikell' to mate-rially improve protection against exotic organisrn introduction, and saysnothing about genetically rnodified organisms (GMos). There are difficultiesenough nith existing constraints if these affect the apparent constitutionalright to consume particular food products in the field. The Annex III iist ofmaterials for which removal or particular disposal is required is norv ratherold and does not include nerv substances - such as polybrominated diphenylethers (PBDEs) - now found at levels around some Antarctic stations thatmatch our domestic levels, or the ne\{ nailomaterials used in everything fromfood tirrough sun-screens to clothing and building cor.erings potentially usedthere.2: In short, we are seeing the burgeoning of generic consequences of

.." Aian D. Hemrrings and Julia Jerbour, "Regr"rlating nanotechnology in Antar.ctica" (paperpresented at the International Conference on Nanoscience and Nanotechnologl' (ICONN2008), trlelbourne, Australia, Februarv 25-29, 200U.

6B Alan D. Hemmings

lifestyle expectations in Antarctica. The differences betrveen the Artarcticand tire rest of the world are becoming rnatters of detail in this respect, asin others.

d. Poor Relations * tYert, ],{orth-South Fissure

The 1980s salv, coincident with the ATS discussion of ninerals, the awakeningof developing state interest and the resuiting annual "euestion of Antarctica;in the uN General Assembiy. The stance of the developing states, organisedthrough the G77, was first to contest the hegernony of the rich developedworid over the region and seek a share of the presumed minerals bounty,and then (as key developing states Brazil, china and india were brought intothe ATS, and as the ATS moved from GRAMRA torvards what becarne theProtocol) to argue for the locking up of the treasure for some future date(rvhen, presumably, these states n'ould be more likel), i6 be players).

For most of the decade after the adoption of the protocol, there r,vas declin,ing developing-lvorld interest in Antarctica, and the removal of the euestionfrom the annual General Assembly. Apart frorn lvlalaysia, r,vhich has spentalmost a decade in a cat-and-rnouse garne rvith the ATS about membership(and rvhose deep interest seeins to include bioprospecting), the developing-worid (perhaps better noi.v described as the Giobal South) disengaged frornAntarctica. The nel.v Antarctic Treaty members have largely been drau,nfrom the former soviet bloc and Eastern bioc states, aithor.igh ccAMLR hasbrought in (or gir.en informal access to) a nurnber of states from the Globa1south. still, overail, and for obvious reasolls of cost and technological capac-ity, the ATS remains largely a deveioped world system r,r'iih only ihe pou'er-house states of the Giobal south so far engaged. The traditional hegemony,even if now clualified, remains.

Might this be challenged again? could the new resollrce interest * fishingand the rlewer areas of tourism and perhaps particularly bioprospecting -raise again the spectre of a developed world appropriation of common heri-tage in Antarctica? In a sense the situation for those outside the Antarctic"club" today may be r,r.orse than it was around the minerais question of the1980s. Then, at least the ATS was elaborating a system to regulate the activ-ity. Intention, norms and likely mechanism were c1ear. with the ATS nowreluctant to develop new instruments, or evea legally binding mechanismsr+'ithin existing instruments, the rate limiting step is often technical capacityand wealth, which is less amenable to resolution through diplomatic nego-tiation. The old adage about smalier states favouring multiiateralism as adefence against the por'verful sirould sureiy apply to the Global South in rela-tion to Antarctica. Perhaps, for the Global South, globai mechanisms areseen as preferable to ATS mechanisms.

From the New Geopolitics of Resources to Nanoteclmologlt 69

e. loss oJ- Innocence - Antarctictt cs a Model

Idealisrn in iirternational relations is rather looked dorrn on at present. Butfor those of us lvho have tiot entirely giveu up on it, Antarctica has seernedits iast best chance, as the saying goes. If not here, u.here?

Whatever faults one sees irl the Aniarctic dispensation represented by theATS, past and present, it has some rather splendid claims to its ltarne. Iiappears to be the only continent upon which, and for lvhich, rve have notbutchered each other. A not inconsiderable achievement, since it has gener-ally taken us rather less than the hundred years we have norv been regularlyon the continent to do so elservhere. we have * for some reasons not artirelyposiiive, but others that are - rnauaged the piace, in general, cooperaiively.The actir.ities lve have carried or,rt (and still carr1. out) have sought to bepeacefirl and to solre extent noble. Although substantially rnodified by or.rractivities in the marine environrnent, and increasingll' by anthropogenicglobal climate change, the Antarctic environment is, nonetheless, probablyiess obviousiy modihed than any other on the planet. lvilderness, if it stil1rneans anything, surely includes the greater part of the continent (and couldmean a iarge part of the marine environrnent if we had the lvill). There havetreen global benefits to the lranrler of our Antarctic engagement.

That tl-ris u'as achieved in large part inadvertently, because .,r e lacked thecapacity to do evervthing n'e might htrve rt'ished, and because Antarctica'snatural ranparts nere sii11 fonnidable, is inescapable. our successes werepossible becar,ise the challenges were linited. in the Fifth Age, the future ofAntarctica becomes one of deliberate choices. Antarctica rernains a dilficultplace to operate, br.rt the dificulties are no longer beyond our capacity toovercome.

The dilhcuity is that if globalisrn denies us the capaciq. to treat any piacedilferentl,v, if an1'thing that can be done can no\,v be done in Antarctica too,rvith no special claims aliori-ed, then rve shall destroy it. The pressrires ofglobaiism are fornridable enough in those parts of the ',r'orld where l,ve havestrong legirl, social and gor.emance traditions and unambiguous assignmentof responsibilities in independent sovereign states. The structure and mecha-nism provided by the A fS as rve encounter it todat, are entireil, iuadequateas a deieuce nol'that the natural defences are do-,r'n.

N,l1' argurnent is that there is not onl1' a case for special treatlnent ofthe Antarctic institutionallr', but that n'e should aim higher in Antarctica(in en'iror-rmental standards, human behaviour, modes of governance)because \\re can still do so. This is unashamedly an idealistic standpoiirt.It rvoulci elable us to better secLlre the Antarctic, but equally irnportant itwould see us using the Antarctic to create a model u,hich inight thereafterbe used (in rvhoie or part) elser'r'here. i suppose it is a rejection of the present

AIan D. Henmilngs

globalism for and in Antarctica, rather than necessarily a relection of global-ism per se.

5. Conclusion - Addressing tlte Challenges

If rve aim to secure the Antarctic - its environment, its scientific values andgeopolitical value as a place hitherto iargely fiee from the usuai litany ofglobal security problems - the international community (a wobbly concept,but sufficiently broad to be useful) n'ill need to accept restraints on hurnanactir.ity and aspiration in Antarctica. This plainly cuts against the grain.

a. Territorial Claims

That some states stili forrnally predicate their Antarctic stances on territorialclaims (or on coutaining the clairns of others), that lve have internationallynot got beyond the modus vivendi on positions agreed in 1959, and that thisissue is utterly unmentionable in the fora of the ATS 50 years on, strikes rneas ridicuious. What prospect is there in 2009 that in any reasonab\'plausibleAntarctic future, any or ail of the seven ciaimants end up rvith pie-slices ofAntarctica? The legal bases for the claims make for interesting reading. Butrvhat is the moral basis for strch claims in the 21st Century? One can canvasseiaborate scenarios under which claimants secrlre instrumental r'alues with-out full realisation of their ciaims, or as some sort of insurance policy againstthe collapse of the ATS (although quite how a claimant would be advantagedin that event is never actually explained) and excuse this most remarkablecolonial hang-over on the gror.rnds that no indigenous people are involved,But it remains an archaic element in our engagement nith Antarctica, andbetlveen states, which oLight finaily to be addressed. This is a propositionattaching oniy to territorial so'r.ereignty claims in Antarctica. In the Arctic,territorial sovereignty arises from the rnetropolitan territory of the snrround-ing states.

Abandoning sovereignty delusions in Antarctica will lead us into elabo-rating more realistic and appropriate governance arrangements for Antarc-tica. Agreeing these nel,t' an'angements will not be easy, since it will entailsome states (the present claimants) accepting the abandonment of long-heidassumptions about particular national rights, For this reason, the case forrelinquishing territorial claims will need to be made domesticaliy, n'ithinthese claimant states.

From tlrc New Geopolitics o"f Resources to Nanotechnologlt 71

b. A iVerv Antarctic Exceptionalisrtt

A deliberative Antarctic exceptionaiism is needed to replace the reflexiveexceptionalisrn rve once had. A confident characterisation of Antarctica asa globai interest (10 percent of the earth) managed collectively through aparticular regional systen, open to u'ide participation, rvouid ground theAntarctic project for a new century. lhis would entail rejecting the alterna-tive of Antarctic being passively driven by giobal norms, despite these beingnianif-estly problematical in Antarctica because they have evolt'ed in differ-ent parts of the u'orld. This rvould allorv the Autarctic regitne to catch upafter close to t$.o decades of stasis, during u,hich period even in areas r,vheretirere are seerning Antarctic analogues to standards and processes elselvhere(enr.ironmental rnanagernent - EIA, protected areas s,vstems) there has beena u,idening gap betrveen global best-practice and Antarctic practice. It rvouldallorv the possibility of special ruies in relation to potentially problematicemergiirg issues in Antarctica * e.g. exotic organisms, GIv{Os, nanomateri-als, particular activities or behaviours (or combinations thereof, since thisrvill likeiy be rvhere risk arises, rather than via particular issues in isolation).Decisions about resource issues rvould have to be addressed in a nou-territo-rial and rnore cooperatirre context.

c. Antnrctic Ittstitutional Development

Rehabiiitation and development of the ATS (or n'hatever this becomes, underrr.'hatsoever auspices) seerns to rre to require sorne significant institutionaldevelopment, rliost obviously, it is non'time to add a political level to thesysten - a periodic il{eeting of Parties (IaoP) at N4inisterial level, rather tirancontinuing oniy at the level of oificials. Such N4oPs need not necessarily occuror1 an annual basis, but thev need to be predictably frequent. Their purposelvould be to provide a forurn tbr rnaking the po1ic1, and political choicesthat have plo\ren too dilhcult ibr o{icials to nake at ATCIVIs and CCAMLRCommission N'Ieetings, includilg decisions about issues that transcend theindividr.ral instrtirnents of the ATS (such as X{arine Protected Areas designa-tion rvirich presently flounders betrveen the Protocol and CCAMLR).

'fte AT'S probabll- ctunot continue to grorv througir the addition of sepa-rate theme-specifrc instruments, each of rvhich is u.ithout prejudice to everypreceding instrument. The edifice so created aireadl' has internal inconsis-tencies rrnd creates diihculties of real-u,orld operational ir-rtegration. Somerervorking of existing and presurned nex' elements into a single (or at leastfen'er) regional instrument(s) is called for.

These irre not slight challenges, but the :rltemative of continuing to acceptever Inore substantial and diverse hurnau activity in Antarctica, against a

Alan D. Hemmings

background of profound climate change and a go\rernance regime frozenin time and crippled by its adherence to positions adopted 50 1,ears earlier,r,vill not ensure tlie protection of anything, including its biojiversity anclwilderness.

Acknowledgements

I express my thanks to David Leary xn61 the other organisers of LookingBeyond the lnternational Polar Year: Emerging and Re-emerging Issues iiInternational Lat+, and Policy in the Polar Regions, for their kind invitationto participate in the meeting; the conference funders for the supportingtravel funds that allowed my attendance; and colleagues at the University o?Akureyri, Iceland for their hospitality and ner,r, insights into the ernergingrealities of the Arctic. My thanks to rneeting participants for very netpfutcomments on the paper presented in Akureyri. in New zeaLand, and Austra-lia, i thank my colieagues at the Unir.ersities of canterbury, Tasmania, Syd-ney and the Australian National Unir.ersity for discussions on the challengesof globalisation in the Antarctic - in particular Michelle Rogan-Finnemore,Karen Scott, Lorne Kriwoken, iulia ]abour, Don Rothwell and Tirn Stephens -and further afieid Ricardo Roura, Kees Bastmeijer, Klaus Dodds and Sanjaychaturvedi. And closest to home, I ihank chris Hemmings for support anda critical eye. of course none of these people should be implicated in theparticular interpretations taken here.