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BOOK REVIEW - THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW

THE POLAR REGIONS AND THE DEVELOPMENT OF INTERNATIONAL LAW. Donald R. Rothwell, Senior Lecturer in Law, University of Sydney. Cambridge University Press, Cambridge (1996) xxxi and 457 pp., plus 31 pp. Bibliography and 8 pp. Index. Hardback £60.
The title of this book is, perhaps, unfortunate, suggesting as it does that the focus of the work would be on the manner on which the polar regions have impacted upon international law. While the author does indeed make strenuous attempts to demonstrate the nature of this impact, it appears to have been, at best, modest: so modest, in fact, as to make the reader wonder whether this was an appropriate focus to adopt. What emerges is an account of the special problems which make it difficult to apply international law as generally understood to the polar regions and of how those problems have been overcome by the establishment of, or moves towards, special regimes. Such regimes, it is argued, are indicative of innovative responses and provide case studies which can be drawn upon in order to refine and develop our understanding of international law. The difficulty is that this is true of any unusual solution to a complex problem. Certainly, the Antarctic Treaty System is the example par excellence of States setting aside traditional concepts of territorial acquisition and sovereignty in order to facilitate the achievement of other objectives. One might have expected this book to probe the extent to which this and other such examples had been adopted and adapted in other situations in order to assess their impact upon the responses of the international community to the shortcomings of traditional legal norms. By and large, however, this is not the case. Hence the danger that the reader might be a little disappointed.
After general introductions to the book, to regime theory and to the polar regions themselves, Chapters 3 and 4 set out the background to the emergence of the 1959 Antarctic Treaty and explain and explore the system which has grown up under it. Chapters 5 and 6 turn to the Arctic, and consider the extent to which there can be said to be an “Arctic regime” at all. Although the line taken does not always seem quite consistent, the general conclusion is that there may be a distinctive Arctic regime in the making but that it is not firmly formed as yet. This means that the responses of the international community to the challenges posed by the polar regions are very different.
The author explains that Chapters 7–10 consider “four discrete areas in which the polar regions demonstrate their unique contribution to the development of international law” (p. xiv), these being the law of the sea, the management of resources, international environmental law and international relations regime theory. The first of these chapters—on the law of the sea—tends to demonstrate the difficulties of applying the UNCLOS rules to polar regions, rather than the manner in which the polar regions have influenced the law of the sea. Indeed, the author points out just how little impact the polar regions actually had, since only one of the Convention’s Articles, Art. 234, directly responds to polar issues. There are, however, very interesting discussions of the application of UNCLOS in polar regions, including problems associated with drawing baselines in ice-covered areas, and of the nature of the rights of passage which exist in the Northwest and Northeast passages. There is careful consideration of relevant State practice and the conclusions drawn seem compelling.
Chapters 8 and 9, looking at resource management and international environmental law, have a better claim to offer models and examples which either have or can be drawn upon by the international community. But one cannot help thinking that the decision by the Antarctic Treaty States to adopt a 50-year moratorium upon mineral exploitation rather than pursue the 1988

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