The Ross Dependency

97 Pages·1972·2.597 MB·English

by  F. M. Auburn (auth.)

THE ROSS DEPENDENCY
THE ROSS DEPENDENCY
by
F. M. AUBURN
•
MARTINUS NIjHOFF I THE HAGUE I 1972
© I97z by Maytinus Nijhoff. The Hague. NetheYlands
Softcaver reprint of the hardcaver 1st edition 1972
AllYights yeslJ1'Ved. including the Yight to tyanslate 01' to
yepyoduce this book 01' payts th61'eol in any lorna
Is<B!N978-94-011-8708-4 Is<B!N978-94-011-9540-9 (e<Boo~
([)OI10.1007/978-94-011-9540-9
CONTENTS
Abbreviations o
CHAPTER ONE
Introduction I
CHAPTER TWO
Polar Sovereignty Through the Cases 7
CHAPTER THREE
Polar Sovereignty in State Practive 15
CHAPTER FOUR
The Sector Theory and Polar Sovereignty 24
CHAPTER FIVE
Analogies 31
CHAPTER SIX
The Antarctic Treaty 35
CHAPTER SEVEN
New Zealand's Claim to the Ross Ice Shelf 45
CHAPTER EIGHT
New Zealand's Claim to the Ross Dependency 57
CHAPTER NINE
Conclusion
Bibliography
Index
The author would like to express his thanks to the Editors of the Inter
national and Comparative Law Quarterly and Auckland University
Law Review for their consent to the use of material originally printed
by the Quarterly and the Review.
ABBREVIA TIONS
A.F.D.L Annuaire Fran~ais de Droit International.
A.J.LL. American Journal of International Law.
B.Y.B.LL. British Yearbook of International Law.
Camb. L.J. Cambridge Law Journal.
Can. B.R. Canadian Bar Review.
Can. Y.B.LL. Canadian Yearbook of International Law.
D.S.LR. Department of Scientific and Industrial Research
(New Zealand).
LC.L.Q. International and Comparative Law Quarterly.
Int. Conc. International Conciliation.
LG.Y. International Geophysical Year.
Japanese A.LL. Japanese Annual of International Law.
Jo. Compo Leg. Journal of Comparative Legislation and Inter
national Law.
N.Z.L.J. New Zealand Law Journal.
Recueil des Cours Recueil des Cours, Academie de Droit Internatio
nal.
R.G.D.LP. Revue Generale de Droit International Public.
S. Calif. L.R. Southern California Law Review.
Sov. Y.B.LL. Soviet Yearbook of International Law.
T.A.E. Trans-Antarctic Expedition.
U.T.L.J. University of Toronto Law Journal.
Wis. L.R. Wisconsin Law Review.
Y.B.W.A. Yearbook of World Affairs.
CHAPTER ONE
INTRODUCTION
In the year 1867 the United States purchased Alaska from Russia for
the sum of 7,200,000 dollars. At the time the Americans did not under
stand why money was being spent on buying a desert. A hundred years
later one of the largest oilfields in the world was discovered there at
Prudhoe Bay. There seems little doubt that large mineral resources
will be found and exploited in the Canadian Arctic. In Greenland min
ing is now being planned on a large scale, under conditions comparable
to those of the Antarctic. No economically exploitable deposits of
minerals have been found in Antarctica, but there is no doubt that
large deposits exist. Whether the progress of technology will enable
such deposits to be located and economically mined is not clear.
Experts confidently state that at present this is not feasible. Forty
years ago an expert asserted that during our geological period there
would be no transit of the Northwest Passage by ship. The voyage was
accomplished in 1969 by a large commercial tanker.
Economic resources, and nothing else should be the reason for New
Zealand activities in the Ross Dependency. Other reasons have been
advanced. One is scientific research. Yet this could be done far more
cheaply by supplying funds to existing research projects in New
Zealand for much of our Antarctic budget is spent on logistics and
support rather than research itself. Just keeping alive in Antarctica is
an expensive business. New Zealand can have little strategic interest
in Antarctica when it has difficulty catching foreign fishing vessels off
its own coasts. International prestige may be a large factor in U.S. and
U.S.S.R. Antarctic operations, but surely a small country such as New
Zealand can find more productive ways of impressing world public
opinion?
A major theme of this study is that determined action by New
Zealand fifty years ago might well have ensured the validity of the
2 INTRODUCTION
claim to the Ross Dependency in international law. Comparisons with
Canadian Arctic activities have been introduced to emphasise the suc
cess of a nation in maintaining such a claim by a determined and
concentrated administrative and diplomatic effort. In the past this
opportunity has been missed by New Zealand. What can be saved for
New Zealand today?
For centuries Antarctic exploration has stirred the imagination of
geographers. De Kerguelen-Tremarec found the island bearing his name
in 1772, but did not realize it was an island. He had no doubt that the
Southern Continent held timber, minerals, diamonds, rubies, precious
stone and marble.l Twentieth century explorers have attempted to
attract funds from their governments by hints of uranium,2 but it must
be noted that miners would have to remove millions of tons of ice to
extract the precious ore. A speaker addressing the New Zealand Insti
tute in 1878 stressed the vast impetus which might be given to New
Zealand trade by such discoveries.s In 1927 a New Zealand company
was proposed, with a capital of £2,000,000 to make the whole De
pendency yield whale oil, bone dust, seal oil, sea-lion oil, hides, ferti
lizer, precious metals, coal, granite and greenstone.4 Among the more
visionary suggestions are the towing of icebergs to Australia to irrigate
the desert,5 the establishment of penal settlements,6 and the storage of
New Zealand butter.7
More practical economic suggestions have been made. Serious con
sideration is being given to the harvesting of euphausia superba, a small
crustacean found in huge quantities in Antarctic waters which is the
principal food supply for whales.8 The U.S.S.R. and Japan, the only
countries still engaged in the rapidly declining whaling industry 9 are
conducting research into the trawling of euphausia, but New Zealand
research appears to be limited to its use to improve the flavour of other
foods,lo rather than as a source of protein. Tourism has been conducted
1 J·F. da Costa, Souverainett sur I'Antarctique (1958), 56.
a ct. 14 "Terres Australes et Antarctiques Franc;aises" (January-March 1961), 51.
3 C. W. Purnell, "On Antarctic Exploration", XI Trans. N.Z. Inst. (1878), 31, 36.
4 L. B. Quartermain, South to the Pole (1967), 424.
5 "Ice for the Deserts", 5(7) Antarctic (Sept. 1969), 323.
6 R. N. Rudmose Brown, The Voyage of the Scotia (1906), 79-80.
7 N.Z. ParI. Deb. Vol. 325 (12 October 1960), 2991.
8 W. E. Pequegnat, "Whales, Plankton and Man", Scientific American Reprint No. 853
(January 1958), 6.
9 W. R. D. McLaughlin, Call to the South (1962), 46.
10 Y. C. Gilberg, "Krill, Its Occurrence and Possible Commerical Value", Commercial
Fishing (Dec. 1968), 23.
INTRODUCTION 3
for many years in the Arctic,n and there are regular annual trips to the
Antarctic Peninsula at great expense.12 Following an experimental sea
trip in I968 an American company has undertaken tours to the De
pendency in a specially designed ship.1S Air New Zealand has plans to
fly tourists to McMurdo Sound where they will stay on an anchored
ship. 14
Antarctica provides the most hostile environment on earth to human
life.15 There is no rain so water must be obtained by melting snow. It is
the coldest region on earth,16 far colder than the Arctic. More than
ninety percent of the continent is covered by an ice sheet having an
average depth of a mile.17 Ice-free coastal areas suitable for establishing
stations are few, and it is no coincidence that Ross Dependency expe
ditions have been centred on the Ross Island area. Steady blizzards of
60-70 m.p.h. are experienced at the main New Zealand station, Scott
Base.18 It is difficult to apply the usually accepted geographic terms
used in temperate latitudes, for the division between land and ice is
constantly shifting. A belt of pack ice up to IO' thick and up to I,OOO
miles wide surrounds the continent in winter and much remains in
summer. 19
It is only recently that some idea has been obtained of the nature of
the surface under the ice cover, a good part of which rests on water
frozen or liquid. Even this knowledge is difficult to apply as a basis for
fixing the juridical status of the surface under the ice. If the ice were
removed the land, depressed under its weight, would rise and the whole
continent would change its shape. A recent U.S. study of the economic
possibilities concludes that, taking into account extraction and trans
port costs, even the most valuable minerals would not be worth mining,
using present techniques.2o Even in the Arctic mining costs have pre-
II T. A. Taracouzio, Soviets in the Arctic (1938), 81, note 21.
12 Lindblad Travel Inc.'s tourist expedition to the Antarctic Peninsula from South America
from II February 1970 to I March 1970 cost a minimum of 1,500 doUars per person, without
the round air fare to the U.S. Antarctic Tourist E%peditions 1970 (1969), 27.
18 [bid., 6.
14 "Tourist Flights to Antarctic Put Back Year", N.Z. Herald (23 December 1969).
16 R. DoUot, "Le Partage de l'Antarctique", 466 Larousse Mensuel (June 1953), 275.
18 British Information Services, The Antarctic (March 1966), 2.
17 P. Law, "Antarctica - Nature's Unique Scientific Laboratory", 16(4) Aust. Nat. Hist.
(Dec. 1968), 97.
18 R. Foubister, The New Zealand Antarctic Research Programme lor I968-I969 (September
1968), 7.
18 British Information Services (supra) at p. 2.
10 N. Potter, "Economic Potentials of the Antarctic", IV(3) Antarctic Journal (May-June
1969), 61, 68.
4 INTRODUCTION
vented the exploitation of known tin and gold deposits.2! It may be
suggested that, providing there is prospect of finding large mineral
deposits, new techniques will be evolved, as was done in preparing the
S.S. Manhattan for its journey from the U.S. to Alaska through the
Northwest Passage ice pack.22 The recent discovery of large iron ore
and uranium deposits and granting of oil prospecting rights in Green
land 23 show that even today mineral exploitation is considered feasible
in an environment similar to that of Antarctica. At present the major
export of Antarctica is scientific data.24
Why does New Zealand spend more than 200,000 dollars a year for
Antarctic work, and the United States a hundred times more? As one
New Zealander put it:25
To many it may seem a little crazy to be studying the intricate movements of
the McMurdo Ice Shelf or the occurrence of inter-tidal crevice fauna at Cape
Royds when at home we have so many problems.
The usual answer given is that the major reason for the continuing
research remains the need to add to the basic knowledge of man's
environment. 26
It may be suggested that the real motive for the Antarctic pro
grammes of the large powers is the prestige attained by "Big Science"
in the twentieth century. It has been suggested that the historian will
look back on the space programme as we look back at the Pyramids.27
The physical analogies between the Antarctic and space programmes
have not been lost on leading scientists, such as Dr. von Braun.28 A
major dilemma of both programmes is to identify its results in such a
form that the taxpaying public can understand and "selling the product
to the public." 29 There is evidence that the U.S. Congress is aware of
the problem and contemplates severe budget restrictions in the Ant
arctic programme.30 In both cases scientific efforts of the U.S. have
been spurred by the competition of the U.S.S.R.3!
21 M. Lantis, "The Administration of Northern Peoples, Canada and Alaska", in R. St. J.
McDonald (ed.), The Arctic Frontier (1966), 90-91.
22 "The Manhattan's Epic Voyage", Time (26 September 1969).
23 H. Barnes, "Chance of Wealth for Greenland", Auckland Star (27 October 1969).
24 L. M. Gould, The Polar Regions in their Relation to Human Affairs (1958), 29.
25 C. Clark, "New Zealand's Identity in Antarctica", Antarctic (December 1967), 619.
26 G. de Q. Robin, "Why Research goes on in Antarctica", The Times (25 January 1966).
21 J. R. Killian Jnr. in L. P. Bloomfield (ed.), Outer SPace (1968), 235-236.
28 w. von Braun, "A Space Man's Look at Antarctica", Popular Science (May 1967), II4.
29 P. M. Smith and R. W. Johnson, "From the South Pole to the Moon: Parallels in Explo-
ration" 24 Bull. Atom Sci. (December 1968), 35.
30 Antarctic Journal (September-October 1968), 5.
31 R. D. Hayton, "The Antarctic Settlement of 1959", 54 A.J.I.L. (1960), 349, 370;