In Conversation: Prof. Donald Rothwell, Professor of International Law, ANU College of Law, Australian National University

Introduction

The polar regions present unique tests for maritime law: ice-covered waters, shifting geography, fragile ecosystems, navigational uncertainty, and increasing geopolitical competition challenge UNCLOS’s capacity to regulate emerging uses of the Arctic and Antarctic. As climate change accelerates ice melt and opens previously inaccessible waterways, the legal distinction between maritime zones, coastal State rights, and international navigational freedoms becomes contested terrain. These developments raise fundamental questions about whether the polar oceans require region-specific legal evolution or a reinterpretation of existing maritime principles.

To explore these themes, SPIL Mumbai engages in a conversation with Prof. Donald Rothwell, a leading global voice on polar oceans law, Antarctic governance, freedom of navigation, and the evolving application of UNCLOS in extreme maritime environments. His extensive scholarship provides foundational analytical tools for evaluating the legal and strategic implications of polar change. The following questions engage directly with these themes and explore unresolved legal tensions emerging from rapidly transforming polar oceans.

The Q&A is curated by Lavanya Hajare for the SPIL Blog.

1. To begin, the melting of Arctic sea ice is transforming navigational patterns and altering the balance between coastal State regulatory control and navigational freedoms. How should UNCLOS interpret the scope of Article 234’s “ice-covered areas” as such areas shrink, and is there a doctrinal basis for phasing out regulatory privileges that may no longer reflect ecological reality?

Article 234 applies in the unique situation of where there are ice-covered areas within the limits of the exclusive economic zone for “most of the year” which suggests that the ice must be present for on average 183 days each year. What Article 234 does not make clear is whether the ice is to cover all of the 200 nautical mile exclusive economic zone. Canada and the Russian Federation are the only two States that have sought to rely on Article 234. As climate change has more of an impact in the Arctic and the ice melts, there is every prospect that Canada and the Russian Federation will not be able to rely on Article 234 as a basis for more extensive marine environmental protection laws within the exclusive economic zone.

2. As new Arctic routes emerge, particularly along the Northern Sea Route, how should international law reconcile the tension between coastal State regulatory ambitions, environmental protection, and growing commercial desires for transit, especially where national legislation asserts control beyond what UNCLOS textually contemplates?

Arctic navigation routes need to be properly characterised as being ones that fall within the territorial sea where innocent passage applies, international straits where transit passage applies, or the exclusive economic zone or high seas where the freedom of navigation applies. The two most prominent Arctic navigation routes – the Northwest Passage and Northern Sea Route (Northeast Passage) – have historically had a distinctive status and are managed accordingly by Canada and the Russian Federation respectively. Canada has resisted navigation in the Northwest Passage while Russia has sought to promote the Northern Sea Route for commercial reasons. As sea ice melts and the Northwest Passage becomes more open to navigation, this will remain a tension for Canada.

3. The Antarctic Treaty System functions through political consensus, yet pressures relating to bioprospecting, tourism expansion, and logistical presence are growing. Should the ATS evolve toward more binding environmental or jurisdictional rules, and what risks might such evolution pose to the existing cooperative governance ethos?

The Antarctic Treaty System already has extensive provisions dealing with environmental matters such as the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) and the 1991 Madrid Protocol to the Treaty. Both have been effective in managing environmental challenges and have not faced major enforcement challenges. However, as new environmental challenges emerge due to climate change and initiatives develop to advance more extensive environmental and resource management, the consensus model used for reaching agreement on new initiatives is proving problematic due to differing views from China and the Russian Federation. This is a political rather than a legal challenge.

4. Climate-induced geographical change raises questions about baselines, maritime zones, and the permanence of existing claims. Should polar maritime zones be “fixed” to preserve legal stability for ice-dependent communities and States, or should they shift with geophysical reality even at the cost of destabilising existing entitlements?

The major issue in the polar regions relating to maritime zones are baselines, and the absence of maritime boundaries in the Southern Ocean. There is emerging state practice in support of fixed baselines due to the impact of sea level rise and the same principle can be applied to ice-covered coastlines such as in Greenland. Maritime boundaries have not been fully determined offshore Antarctica due to the constraints imposed by the 1959 Antarctic Treaty and those constraints will not resolve while the Treaty remains in force.

5. Increasing military presence in polar regions challenges the longstanding narrative of demilitarisation and peaceful use. How should international law address the growing dual-use nature of polar infrastructure, including ports, research stations, and satellites, which blur civilian and military roles?

The modern military history of the two polar regions significantly differs. Sovereignty over Arctic lands is not contested and military operations are generally not constrained other than under the law of the sea. The Arctic was also central to the Cold War where the USA and USSR faced off against each other and nuclear submarines operated throughout the Arctic Ocean. Antarctica was demilitarised under the Antarctic Treaty and that compact has held firm. Dual-use civil/military activities are posing challenges in this regard, but there is a long history of militaries being used in support of Antarctic civilian research. As such, the Antarctic Treaty System is well versed in dealing with these challenges.

6. Search-and-rescue operations in polar waters require unprecedented levels of coordination. Should there be a polar-specific SAR treaty incorporating mandatory cooperation, resource pooling, and technological integration, or can existing regimes be stretched to meet the region’s operational risks?

There already exists an Arctic SAR agreement adopted under a framework overseen by the Arctic Council. In Antarctica the Antarctic Treaty parties collaborate and assist each other with continental search and rescue, while within the Southern Ocean standard arrangements exist for search and rescue that duplicate those that operate in the world’s oceans. There is nothing to suggest these arrangements are inadequate

7. Environmental protection remains a cornerstone of polar governance, yet climate change magnifies ecological vulnerability. Should environmental impact assessments for polar activities incorporate climate-sensitive modelling as a mandatory feature, and how would this reshape the approval of shipping, research, and tourism operations?

In Antarctica the Madrid Protocol to the Antarctic Treaty provides for the conduct of environmental impact assessments and the States parties to the Protocol are required to undertake various levels of assessments for a range of activities. These processes, overseen by the Protocol’s ‘Committee for Environmental Protection’ are climate sensitive. In the Arctic, equivalent activities are regulated under relevant national laws such as those of Canada, Denmark and Norway. Varying standards can be followed under those national laws and regulate tourism in Greenland under the laws of Denmark/Greenland. Shipping regulation falls within the remit of the International Maritime Organisation’s ‘Polar Code’ which sets distinctive environmental operational standards for shipping in the polar regions.

8. The increasing use of autonomous and ice-capable vessels raises new regulatory gaps in safety, liability, and incident response. How should polar governance frameworks integrate MASS standards to reflect the heightened risks of navigation in extreme environments?

These are matters capable of management under the Polar Code noted above.

9. IUU fishing is expanding into sub-Antarctic and Arctic waters as stocks migrate. Should regional fisheries bodies be granted stronger enforcement powers, including rights of hot pursuit, real-time tracking mandates, or shared sanctions regimes?

The regulation of IUU fishing in the polar oceans falls under i) CCAMLR (noted above) in the Southern Ocean, and ii) in the Arctic national fisheries laws and the Central Arctic Oceans Fisheries Agreement. These legal frameworks are relatively robust, however challenges remain with enforcement due to the vast distances encountered in the Arctic Ocean and Southern Ocean, and the lack of capacity amongst some States with respect to fisheries enforcement vessels capable of operating in polar waters.

10. As polar science becomes increasingly geopolitical, with data central to future resource claims, how should international law regulate scientific information sharing to prevent politicisation without undermining the scientific openness central to polar treaties?

A core principle of the Antarctic Treaty is the freedom of scientific research and the sharing of that research amongst the treaty parties and generally within the global scientific community. That principle has not to date been contested and there is a strong track record of Antarctic scientific research being freely shared. The Arctic scientific research community shares similar values to that in Antarctica, and there exists an Agreement on Enhancing International Arctic Scientific Cooperation. There has been a strong culture of not politicising polar science, however in some locations geopolitical tensions have arisen such as in Svalbard.

11. Cross-border governance mechanisms often fail to address Indigenous rights in polar regions. Should polar ocean governance incorporate formal Indigenous decision-making authority, and what structural changes would be needed to integrate Indigenous law and ecological knowledge meaningfully?

This is a live issue in the Arctic and the Arctic Council has attempted to play an active role in engaging more indigenous voices in decision-making processes. These can vary considerably between what takes place at the national level – comparing Canada with the Russian Federation – with Arctic Council mechanisms where six indigenous peoples’organisations from across the Arctic are Permanent Participants. It is generally recognised that the Arctic Council has been at the forefront of seeking to recognise the direct interests of indigenous peoples in Arctic governance.

12. Given accelerating climate change, deepening resource interest, and geopolitical rivalry, do you foresee the eventual emergence of a comprehensive “Polar Oceans Agreement,” or will UNCLOS’s general framework continue to govern through piecemeal adaptation and judicial interpretation?

No, I do not see this development. Along with scholars such as Donat Pharand, I contributed to debates in the 1990s about the development of a region-wide Arctic Treaty; however this did not gain support and the ‘Arctic Eight’ States preferred to instead develop the Arctic Council and associated mechanisms. A weakness of an Arctic Ocean type agreement developed under UNCLOS is that it would only cover the ocean and not the Arctic continental landmass and islands north of the Arctic Circle.