The meeting of the Council of Managers of National Antarctic Programmes has just finished in Argentina, ahead of the excitement of the austral summer. The meeting of the Scientific Committee on Antarctic Research has just begun in Chile, bringing together over a thousand scientists at more than 500 conferences and events to discuss, organise and predict the needs of scientific research in Antarctica. This is a reference science for the development of international policies in Antarctica, negotiated each year at the Antarctic Treaty Consultative Meetings (ATCMs). The last of these ended in India at the end of May. The next Antarctic Treaty Consultative Meeting is due to take place in Milan, Italy, with the date and venue still to be decided. The final report of the May meetings has not yet been made public. Criticism has been levelled at the slowness of the process. For some, the Antarctic Treaty System is no longer as effective as it was in the 1980s. The Antarctic Rights initiative notes that consensus (a basic rule for decision-making) is now difficult to achieve between the 29 consultative parties to the Treaty. This year, the project is launching a new discussion to build a prototype for international governance based on the rights of nature. More than 20 experts have sketched out a draft Declaration of the Rights of the Antarctic and would like to build an alliance for the Antarctic in order to refine its drafting.
We spoke to two experts on the subject, members of Antarctic Rights, Cormac Cullinan, a South African lawyer specialising in the rights of nature, and Alan D. Hemmings, a specialist in Antarctic governance at the University of Canterbury.
What are the origins of the initiative?
Cormac Cullinan : There are two rationales for the initiative. One reason is that the Antarctic Treaty system [ATS, editor’s note] is not working well enough, progress isn’t being made within the system. This is not an attack on the ATS, the Antarctic Treaty was an amazingly progressive treaty at the time, and without it, Antarctica would be in an even worse position. But the current impasse within the ATS creates an impetus for change.
But even if the Antarctic Treaty were working reasonably well, it would still be important to recognize the rights of Antarctica and the members of that living community, because doing so recognises the reality that humans don’t rule Antarctica. It orders itself on the basis of the laws of biology, physics, and chemistry.
I was one of the founders of the Global Alliance for the Rights of Nature, which bases its approach on the idea that humans are one species in the community of life that we call Earth, and our role is not to manage the planet. The basic system of order is established by nature, and if we want to flourish as a member of that community, we have to accept and respect this pre-existing system of order. However, the legal systems of the dominant cultures assume – incorrectly – that humans can be colonial overlords, making the rules for this community of life.
Our legal systems – unlike those of Indigenous Peoples – frame the law around legal subjects. Only legal subject have rights, and the only legal subjects are human beings and institutions created by people, that to say juristic persons like corporations or states.
So, what the Rights of Nature say is that the frame is too narrow. We live in an animate world, and it’s not accurate to say that only humans are subjects – there are many subjects. Historically, there have been many rights-based movements that expanded the class of rights holders – in other words legal subjects – to include women, indigenous peoples, children, etc.
As soon as you recognize the subjectivity of beings other than humans, questions arise, such as : What rights do they have? Do they have the right to exist?
If humans recognise that trees have rights, the trees don’t care; it’s a human construct. The real reason for recognising these rights is that they create corresponding duties on humans to respect those rights. It also means that we have to acknowledge the fact that Earth is a community of subjects, not just objects or resources for us to use. Other beings deserve respect as part of the community of life, without which humans could not exist. If you think of humans as a leaf on the tree of life, it is clear that our human rights and well-being are derived from the whole tree, and can only be protected by protecting the whole tree.
Alan D. Hemmings : It is important to say that we are not repudiating the Antarctic Treaty System, but it’s an insufficient basis to protect the Antarctic in the contemporary world. If you look at the Antarctic system, it has many strengths but also some deficiencies, and they are structural.
The regime was established to protect geopolitical interests, not from its inception to protect the natural world, although there is some attempt to do that. Secondly, it doesn’t protect the entirety of the natural world because whales are left completely outside of the ATS to the International Whaling Commission. There is a very unclear relationship between the ATS and practices in relation to Antarctic deep seabed and law of the sea. So, it’s very difficult to say that the totality of Antarctic life is protected by the ATS, and certainly it is not grounded in an ethic that prioritizes the rights of non-human life.
Then, there is the limited ethical framework under which the ATS operates. It’s a scientific one, which is the principal value and scientific research is the glue that holds the whole system together. This has allowed some positive environmental initiatives, and if we had this discussion 25 years ago it would be reasonable to say that the ATS was at the frontier of conventional environmental management practices. But that’s no longer the case, the situation has worsened since the Russian Federation’s invasion of Ukraine in 2022 and the system is now sclerotic.
It’s a perfect time to come up with an alternative framework for the Antarctic.
Cormac Cullinan : I think you could characterize the shift we are trying to make as a long-term one. The Antarctic Treaty System is shaped by geopolitical interests — the positions that each state takes at ATS meetings is based on what they regard as their best interests. We want to shift to a situation where we try to advance the best interests for Antarctica, rather than what is best for the consultative parties.
Human rights were recognized with the Universal Declaration of Human Rights after the Second World War. That didn’t sweep away the existing legal order, just as recognising that Antarctica has rights won’t sweep away the existing ATS. Once you have the concept of human rights, it starts slowly changing laws because it enables any law which restricts human rights, in any country to be challenged. It’s a very important societal shift, and it results in practical changes.
What is the main threat to the Antarctic actually?
Alan D. Hemmings : Making progress in the marine environment is always harder than making progress in the terrestrial environment. I suppose because we have over 2,000 years of thinking that the sea is just beyond anybody’s responsibilities, and there are no people living there. A very large part of the Antarctic is its ocean and, perhaps more than anywhere else, life in the Antarctic and sub-Antarctic is dependent on the marine environment.
We argue the insufficiency of the anthropomorphic basis for the protection of the natural world. It’s about finding some hooks into some mechanisms. I think the hardest place to get recognition of the rights of nature would be particularly in the ‘lower’ taxa, which are common and numerous in the marine environment.
I see you have behind you this map of a fantastic archipelago, Kerguelen, that I have been fortunate to visit. We need to mobilize people around rights of nature on sub-Antarctic Kerguelen, the Antarctic Continent and across the 2000 km of ocean between them.
Life doesn’t talk and doesn’t act as a decision-maker, so at the end would Antarctica Rights not become the voice of scientists?
Cormac Cullinan : As you said, there is this issue of how the voice of Antarctica gets heard and who speaks for Antarctica. It’s a question that we will have to answer, and at the moment, we don’t have a proper response to this question.
If we take the parallel of a child who can’t speak yet, what we normally say is that the mother or parents can speak on behalf of the child because they know the child most intimately, and they have a deep concern for the child; they love them.
Those who speak for Antarctica should have a deep knowledge of Antarctica, for example scientists, but also a deep intimacy and love for Antarctica. I think those people who are willing to form an Antarctic Alliance will have to discuss this question and come up with novel ways for communicating what is in the best interest of Antarctica.
I anticipate that what would emerge would be something like a parliament, where many people represent different constituencies, if I can put it that way. For example, penguins, whales, or ecosystems. It’s going to be a fascinating process to work out how to identify and articulate the best interest of Antarctica most accurately.
It may not be possible for humans to fully articulate the best interest of Antarctica but I think that if we have to choose between two courses of action, A or B, we would be able to decide that option A is more in the interest of Antarctica than option B. I think that in most cases there would be sufficient scientific knowledge to do that, but it would involve approaching the data in a different way. Determining what is good for Antarctica is complex particularly because Antarctica has changed enormously over millions of years.
Do you want to go to Antarctic Treaty Consultative Meeting, join the table as an NGO like Antarctic and Southern Ocean Coalition or act at other forums?
Alan D. Hemmings : We are not expecting to be invited to sit around the table at the Antarctic Treaty Consultative Meeting. Sadly, the internal structure of the Antarctic Treaty System means that no new player who isn’t a state will be invited to join the ATS. So, we are in a different place than in the 1980s, but perhaps at some future point, it will be possible.
The ATS, in its Madrid Protocol, does recognize intrinsic value, so there are some glimmers of familiarity within the system. There are probably a dozen states among the parties that now have rights of nature embedded in some way in their domestic legislation, some of them in their constitutions. This wouldn’t have been true ten years ago. So we are not talking about entirely alien concepts, and the difficulties are more about the route rather than the conceptions.
If you look at the history of human engagement with Antarctica, the big phase changes – when we attempted to deal with the Antarctic environment in a better way – have always been driven from the outside. Although geopolitical interests were there from inception, in the mid-1950s it was the scientific interest in the wonders of polar regions that had a heavy influence on the shape of the Antarctic system.
Fast forward to the 1980s, and you have an international environmental movement that motivated the French and Australian governments, among others, to reject the minerals regime. The call for a conservation convention led to the 1991 adoption of the Madrid Protocol. This came from a different community of people to those who were codifying the ATS between 1959 and the early 1980s. In the 35-year period since the Madrid Protocol the ATS has become frozen again.
It’s inevitable that if something is going to change, it has to come from the outside. That means there will be opposition, concerns that we are undermining, but we are not. It means we have different audiences, and we have to motivate people in various countries and places, and then they act on their epistemic communities and our governments. It’s a project that will take time, but it’s doable.
Interviewed by Camille Lin, Polar Journal AG
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