Maritime Zones in Antarctica

• Author: Anna Bridget Homan
• Position: Student, University of Queensland, This essay won the Morella Calder Memorial Prize for 2006 It was written whilst the author was cross institutionally enrolled at University of Canterbury, New Zealand
• Pages: 69-77

MARITIME ZONES IN ANTARCTICA

Anna Ho man

∗

1. INTRODUCTION

Underlying the determination of maritime zones is a most fundamental and basic presumption which is

not often challenged: that presumption being the existence of a Coastal State. In order for a State to be

entitled to exert control over a maritime zone, the State must show that they firstly exercise sovereignty

over the adjacent land, and that this is done legitimately and without substantial dispute from other

nations. While the territorial sovereignty of States on most continents can be considered established

and relatively permanent, the continent of Antarctica is certainly an exception.

The Antarctic area south of 60 degrees latitude with its unique composition of land, ice and sea

presents numerous legal challenges regarding both territorial and maritime jurisdiction. All but for a

handful of States refuse to recognise territorial sovereignty claims to Antarctica, and consequently

reject any assertions of maritime zones which arise. This has been the political atmosphere which

claimant States have faced for decades, and the current environment shows no sign of yielding. Due to

this absence of undisputed territorial sovereignty in Antarctica, there is a presumption that the land

continent is surrounded by high seas,1 over which no State may validly assert jurisdiction. In fact, the

Antarctic Treaty explicitly preserves the freedoms of the high seas within the Antarctic Treaty Area

(ATA).2 It fails, however, to identify exactly which waters constitute high seas, or explain whether

there are any legal implications for the waters directly off-shore which may arise from territorial

claims. The status at international law of these off-shore waters remains unresolved.

To argue the existence of maritime zones in the Southern Ocean requires proof to refute the

presumption of high seas; that is, proof that Coastal States are in existence and may legitimately assert

sovereignty over well-defined off-shore areas. There are three major elements to the existence of

maritime zones in Antarctica, which shall be examined accordingly: the presence of legitimate coastal

States, their legal ability to claim maritime zones and their legitimate means of determining maritime

boundary delimitation.

This involves an examination of provisions of the Antarctic Treaty (the Treaty) and the United Nations

Convention on the Laws of the Sea 1982 (UNCLOS) and any potential conflicts between. It also

considers the question of whether the law of the sea regime can effectively be applied to Antarctica’s

unique circumstances. The scope of this paper excludes an examination of the maritime zones in Sub-

Antarctica, the area below the Convergence Line and above 60 degrees south latitude, since the status

of territorial and maritime claims in this area is less controversial and determined differently.

2. EXISTENCE OF COASTAL STATES

The ability to claim maritime zones is inherent only in a coastal State which exercises their sovereignty

over territory adjacent to a coastline. Therefore Antarctica requires the presence of coastal States in

order for the existence of maritime zones to be possible and for the legitimacy of States’ claims.3

Firstly, this raises the question of whether Antarctica is a territory capable of being controlled by a

sovereign, despite 98% of the land being covered by permanent ice. Immediately Antarctica’s harsh

environment suggests that it is devoid of any territorial qualities and incapable of being the subject of

effective occupation and territorial sovereignty.4 This conclusion is premature, however, as permanent

ice-covered lands like Greenland have been held by the Permanent Court of International Justice as

∗ Student, University of Queensland, This essay won the Morella Calder Memorial Prize for 2006 It was written whilst the

author was cross institutionally enrolled at University of Canterbury, New Zealand.

1 Sir Arthur Watts, International Law and the Antarctic Treaty System (1992) 157.

2 Article 6 of the Antarctic Treaty (‘the Treaty’).

3 Patrizia Vigni, ‘Antarctic Maritime Claims: ‘Frozen Sovereignty’ and the Law of the Sea’ in Alex G Oude Elferink and Donald

R Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (2001) 85.

4 Watts, above n 1, 112.

(2006) 20 A&NZ Mar LJ

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