In her book “Is International Law International?”, Anthea Roberts raises the concept of “comparative international law”. Roberts illustrates the different national and regional approaches towards understanding, interpretation and application of international law. She points out that national approaches to international law plays an important part in “a transnational field that aspires to develop common rules to facilitate inter-state coexistence and cooperation”. Furthermore, academics play an influential role in a State’s international law practice, through their scholarship and practice.
The approach of comparative international law is useful in the Polar Regions. In recent years, China has been significantly expanding its presence in Antarctica. For example, China now operates three research stations in the Australian Antarctic Territory (AAT), including Kunlun Station at Dome A – the highest point of the Antarctic ice sheet, and since 2013, China has been proposing to establish an Antarctic Specially Managed Area around Kunlun Station to the Antarctic Treaty Consultative Meetings. Furthermore, China is now building its fifth Antarctic station on Inexpressible Island in the Terra Nova Bay of the Ross Sea.
A comprehensive understanding of Chinese approach towards international Polar Law is therefore essential when discussing China’s role in the future of Polar governance. Although Chinese academics spent their formative years in an open-door China, their view of the world order has been shaped by values and philosophies that are not necessarily the same as their American, European or Australian colleagues. By conducting a thorough search in the Social Sciences category of China National Knowledge Infrastructure (CNKI/中国知网), a key national Chinese academic database that collects more than 10,0000 Chinese journals, my colleague Xu Qi and I identified around 300 papers published between 2008 and 2018 which included the search term “Arctic”, and more than 60 papers which included the search term “Antarctica”. The examination of these papers provides a good understanding of the evolution of Chinese research on Polar law and policy, as well as facilitating comparison and inclusion of a broader array of world views.
Based on an analysis of those published papers, this piece gives a snapshot of how Chinese academics perceive Australian Antarctic law and policy, especially around three key issues: Australia’s influence in Antarctica, Marine Protected Areas (MPAs) in the Southern Ocean and the Antarctic continental shelf.
Australian influence in Antarctica
Some Chinese scholars view the Antarctic Treaty System (ATS) as a relic of the cold war and an exclusive club of western countries,[i] and perceive power as the most important instrument in Antarctic diplomacy.[ii] In the meantime, because China is also a consultative party of the Antarctic Treaty with voting rights, most Chinese scholars also call for maintaining the stability of the ATS. Among more than 60 published papers on Antarctica, Chinese academics paid highest attention to the United States – the most powerful state involved in Antarctic affairs.
Australia is perhaps seen as the second most influential state in the ATS and is China’s closest partner in Antarctic cooperation.[iii] Australian Antarctic law and policy are therefore thoroughly examined. Wu Yilin, a diplomat at the Chinese Consulate in Sydney, describes Australia’s Antarctic Science Strategic Plan 2011-12 to 2020-21, and notes that Australia’s investment in Antarctica is driven by its determination to maintain leadership in the ATS.[iv]
Wu Ningbo and Chen Li provide an overview of Australia’s Antarctic interests and policies. They believe that it is in China’s interest to have a clear and in-depth understanding of Australia’s Antarctic policy-making process.
Moreover, Wu and Chen consider that China should maintain the status quo of the ATS with its “bifocal” approach, which allows states to accede to the ATS (and its rights and obligations) without implying recognition or rejection of existing territorial claims to Antarctic territory. The bifocalism of the Antarctic Treaty serves China well. Wu Ningbo further wrote a paper with a focus on Australia’s Antarctic legislation. He notes that Australia has established a comprehensive legal framework to enhance its jurisdiction in Antarctica.[v] However, with increasing foreign governmental and commercial activities in the AAT, it is “a dilemma for Australia to maintain a delicate balance between its commitment under the ATS and territorial claims in Antarctica.”
In March 2019, the China’s National People’s Congress (NPC) decided to draft China’s domestic Antarctic Law as part of the 13th NPC Standing Committee Legislative Plan (2018–2023). The PRC’s Antarctic Activities and Environmental Protection Law is currently in the drafting process by the NPC Environmental Protection and Resources Conservation Committee and is categorized as “laws for which the conditions are relatively mature and which are planned to be submitted for deliberation during the term”. Wu suggests that lessons could be learnt from Australia’s Antarctic legislation, especially regarding the use of domestic legislation to strengthen Australia’s national jurisdiction in the continent.[vi]
Southern Ocean MPAs
Chinese academic views on Australia’s proposal to establish MPAs in the East Antarctic are divided. The issues of Southern Ocean MPAs were first raised by Tang Jianye in Chinese academia in 2010.[vii] While the Chinese delegation debated other states in annual meetings of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), domestic discussions were going on as well. Tang further introduces Chinese practice in the 2011 annual meeting and marks the year 2011 as a milestone for China’s engagement with CCAMLR.[viii] Before 2011, China focused on delisting four Chinese-flagged vessels that were on CCAMLR’s Non-Contracting Party IUU list.[ix] In contrast, in 2011, China was supportive of the adoption of Conservation Measure 91-04, an Australian proposal that provides legal basis for the establishment of MPAs in the Southern Ocean. Nevertheless, this was the beginning of China expressing concerns on the further establishment of MPAs. Tang notes China raised that conservation of marine living resources must take into account ‘Rational Use’.
Gui Jing generally discusses the pros and cons of high sea MPAs from a national perspective. On the one hand, Gui thinks that high sea MPAs are a positive development for the protection of marine environment. On the other hand, high sea MPAs might limit developing countries’ activities (including China’s) in the high seas, such as distant water fishing, deep seabed mining and marine scientific research.
Chen Li reviews the international legal basis for the establishment of Southern Ocean MPAs and questions whether the international legal basis is sufficient; necessary; and/or feasible to achieve its objectives.[x] Chen suggests China should focus on the negotiations regarding how to best manage such kinds of MPAs, rather than challenging their legality. Chen thinks that China could make its own MPA proposal and submit it to CCAMLR. This is echoed by He Zhipeng, who believes a Chinese MPA proposal would enhance China’s key interests as a major power in the ATS.[xi] Tang Jianye, on the other end, is suspicious of the legal basis and scientific evidence of those MPA proposals submitted to CCAMLR.[xii]
Antarctic Continental Shelf
The United Nations Convention on the Law of the Sea (UNCLOS) is supposed to be the “constitution for the world’s ocean” and applicable in the Antarctic waters as well. Nevertheless, because of the unique governance of the ATS, the application of the UNCLOS was rarely discussed in Chinese academia, until Antarctic claimants, including Australia, made submissions to the Commission on the Limits of the Continental Shelf (CLCS) regarding outer limits of their Antarctic continental shelves. Shi Weihua believes that the ATS faces significant challenges posed by the application of the UNCLOS continental shelf regime to the Southern Ocean.[xiii] This is echoed by Yang Ying, who is pessimistic about the ability of the ATS to solve disputes between claimants and non-claimants on this issue.[xiv] Further, Wang Wen and Yao Le suggest that China must be vocal against any territorial claim in Antarctica and could consider a call for an Antarctic condominium covering the continent, continental shelf and adjacent waters.[xv]
Conclusions
The Chinese view of Australia’s Antarctic law and policy is complex. There are areas for cooperation, while issues such as the Southern Ocean MPAs and the Antarctic continental shelf may generate disagreement and/or tension. In any case, responding intelligently and effectively to the rise of China is central to Australia’s security and prosperity in the 21st century. Legal issues around Antarctica are likely to play an important role in Australia-China relations in years to come.
Dr Nengye Liu is a Senior Lecturer at
Adelaide Law School, University of Adelaide, where he teaches the law of the
sea and Chinese law. Dr Liu’s current research centres on China’s role in
global ocean governance, with particular focus on the Polar Regions. This blog
is drawn from a forthcoming book chapter: Nengye Liu and Qi Xu, ‘The Predicates
of Chinese Legal Philosophy in the Polar Regions’, in Dawid Bunikowski and Alan
D. Hemmings (eds), Philosophies of Polar Law (Routledge, London 2020).
[i] Guo Peiqing, ‘Antarctic Cold War, Resources Competition among Great Powers’, Xinwen Tiandi / News Universe (2009) 2, 29-31 (in Chinese).[ii] Zheng Yingqing, ‘Some Thoughts about Having a Say on Antarctica’, Journal of International Relations (2014) 62-72 (in Chinese).[iii] Wu Ningbo and Chen Li, ‘Australian Antarctic Interests: Actual Challenge and Policy Response’, Chinese Journal of Polar Research (2016) 28 (1), 123-132 (in Chinese).[iv] Wu Yilin, ‘Analysis of Australian Antarctic Science Strategy and Research Theme’, Journal of Ocean University of China (Social Sciences) (2012) 1, 1-4 (in Chinese).[v] Wu Ningbo, ‘Australian Antarctic Legislations and Its Dilemma’, Journal of Boundary and Ocean Studies (2017) 2 (2) 116-127 (in Chinese).[vi] Ibid.[vii] Tang Jianye and Shi Guihua, ‘Management of Antarctic Krill and Its Implications for China’s Distant Water Fisheries’, Resources Science (2010) 32 (1), 11-18 (in Chinese).[viii] Tang Jianye, ‘China in the 30th Annual Meeting of the Commission for the Conservation of Antarctic Marine Living Resources’, Fishery Information & Strategy (2012) 27 (3) 194-202 (in Chinese).[ix] Tang Jianye, ‘China’s Engagement in the Establishment of Marine Protected Areas in the Southern Ocean: From Reactive to Active’, Marine Policy (2017) 75, 68-74.[x] Chen Li, ‘Study on the International Legal Basis of Antarctic Marine Protected Area’, Fudan Journal (Social Sciences) (2016) 2, 152-164 (in Chinese).[xi] He Zhipeng and Mi Chenxi, ‘China’s Position on the Establishment of Antarctic MPAs’, Hebei Legal Science (2018) 36 (7) 25-43 (in Chinese).[xii] Tang Jianye, ‘The Practice of Establishing Marine Protected Areas in the Southern Ocean and Related Legal and Political Debates’, Chinese Journal of Polar Research (2016) 28 (3), 370-380 (in Chinese).[xiii] Shi Weihua, ‘An Analysis of Current Antarctic Governance Regime’, Chinese Journal of Polar Research (2013) 25 (1), 90-95 (in Chinese).[xiv] Yang Ying, ‘The Impact of the United Nations Convention on the Law of the Sea on Antarctic Governance’, Lilun Yuekan / Theory Monthly (2015) (6), 174-178 (in Chinese).[xv] Wang Wen and Yao Le, ‘China’s Development and Participation of Antarctica Governance under the Guidance of New Idea of Global Governance – Based on the Field Study’, Journal of Renmin University of China (2018) 3, 123-134 (in Chinese).