Todd F. Chatham, Criminal Jurisdiction in Antarctica: a Proposal for Dealing With Jurisdictional Uncertainty and Lack of Effective Enforcement
| Citation | Vol. 24 No. 1 |
| Publication year | 2010 |
CRIMINAL JURISDICTION IN ANTARCTICA: A PROPOSAL FOR DEALING WITH JURISDICTIONAL UNCERTAINTY AND LACK OF EFFECTIVE ENFORCEMENT
INTRODUCTION
One hundred years ago, Antarctica was a mysterious, treacherous and unforgiving land-the last frontier, beyond the edge of the known world. It was a struggle for explorers just to survive . . . This heroic age of exploration remains an inspiration to scientists working in
Antarctica almost a century later.1
Thus began the Ph.D. thesis of Dr. Rodney Marks, a promising young Australian astrophysicist whose life came to a tragic end on May 12, 2000, during a research expedition to the barren continent that so inspired him.2
While Dr. Marks's contributions to the field of astrophysics were cut short that day, his legacy may live on in the field of international law as subsequent investigations into his mysterious death and the resulting jurisdictional conflicts have highlighted serious flaws in the current structure of the Antarctic
Treaty System.3Dr. Marks's death should inspire the treaty parties to make significant changes to the regime's current criminal-jurisdiction scheme before increased human activity on the continent leads to more serious jurisdictional disputes and threatens the very existence of this cooperative, international regime. The treaty parties must use this opportunity to implement a more flexible approach to resolving criminal-jurisdiction disputes on the continent- an approach which will accommodate the evolving needs of modern-day Antarctica.
Dr. Marks, an Australian citizen, was spending the period from November
1999 through November 2000 as an employee of the Smithsonian Astrophysical Observatory ("SAO") at the Amundsen-Scott South Pole Station, a U.S. research station in Antarctica.4Prior to his Antarctic expedition,
Marks had passed each of the strict medical and psychological exams required by the U.S. Antarctic Program for winterovers.5Upon arrival, Marks took charge of the SAO's Antarctic Submillimeter Telescope and Remote Observatory and was reportedly doing a "superb job running the observatory, getting the data, and working on new observational techniques."6On the morning of his death, however, Dr. Marks checked himself into the base medical facility after experiencing difficulty breathing and vomiting blood.7
Dr. Robert Thompson examined Marks at the medical facility and released him when it appeared that he had recovered.8However, Marks became increasingly sick over the course of the day and later returned to the infirmary complaining of "hurting all over."9Dr. Thompson consulted with colleagues by satellite, and the base emergency trauma team was called in to help; Dr. Marks's heart suddenly stopped, and he was pronounced dead.10
The National Science Foundation ("NSF"), the federal agency in charge of U.S. research stations in Antarctica, issued a statement shortly after Marks's death explaining that he "apparently died of natural causes, but the specific cause of death has yet to be determined."11Additionally, news agencies reported that "there is nothing to suggest that his death was related to his work, to the environment at the South Pole, or to any toxic or infectious agent."12
Due to poor weather conditions, Marks's body was placed upon a sled and allowed to freeze until it could be transported six months later.13
When flights resumed later that year, Marks's body was flown to New Zealand and examined by the coroner, who determined that he had died from a heavy dose of methanol in his system.14There was no ready explanation for the methanol's presence in Dr. Marks's system and, according to Detective
Grant Wormland, the New Zealand police officer in charge of the investigation, the authorities could not rule out "that this was as the direct result of the act of another person."15
Detective Wormland publicly criticized the NSF and American contractors at the base for hampering his investigation and said that none of the organizations provided much information, even after New Zealand police asked the U.S. Department of Justice for help.16New Zealand investigators resorted to conducting an internet search to find a list of people working at the base but received only nine replies to a questionnaire forwarded to those people.17Wormland told reporters that he "believed a full investigation into the events leading to Marks's death had been carried out by the U.S. organizations involved, but [that he] had been unable to get access to it."18Wormland explained to New Zealand officials assigned to investigate Marks's death, "It is impossible to say how far [the U.S.] investigation went or to what end."19After years of frustrating attempts to determine whether Dr. Marks's death was a murder, a suicide, or simply an unfortunate accident, the case remains unsolved.20In September 2008, Marks's father told New Zealand reporters, "I don't think we are going to find out any more in regards to how Rodney died. I'd see that as a fruitless exercise."21
Dr. Marks's death and the following international investigation highlighted some of the problems of criminal jurisdiction in Antarctica. The United States had an interest in conducting its own investigation of Dr. Marks's death, because it occurred on a U.S. base and involved an employee of an American contractor.22New Zealand, however, had its own interest in the case because it considers the U.S. base part of Antarctica's Ross Dependency, to which it asserts a territorial claim (although the United States refuses to recognize this claim).23Partly due to these jurisdictional claims and conflicting interests, the true story behind Dr. Marks's death may never be known. His death, however, may serve to inspire the change needed to handle future criminal incidents on the frozen continent more effectively. Dr. Marks has posthumously drawn the international legal community's attention to the significant shortcomings of the current Antarctic jurisdictional system, and his death should encourage an immediate reform of that system. As Richard McElrea, the coroner who initially examined Dr. Marks's body in New Zealand, put it: "The facts of the case and partial outcomes point to an urgent need to set comprehensive rules of investigation and accountability for deaths in Antarctica on a fair and open basis."24
I. FROZEN CLAIMS-AN UNEASY STATUS QUO
As the facts of Dr. Marks's death illustrate, the jurisdictional problem in Antarctica is a delicate and complex one that has become increasingly important to resolve as human activity accelerates on the frozen continent.25A brief analysis of the tenuous political balance that currently prevails in
Antarctica helps to explain how this problem emerged and lays a foundation for understanding how it might be resolved.
A. History of Sovereignty Claims in Antarctica
Since 1908, seven states (Australia, Argentina, Chile, France, New Zealand, Norway, and the United Kingdom) have made conflicting sovereignty claims to parts of Antarctica.26A number of these claims overlap at various points on the continent, and "the status of these claims has been the subject of international conflict."27For their part, the United States and Russia have refused to recognize any of these conflicting claims and have refrained from making any of their own claims to sovereignty while reserving whatever rights relate to their Antarctic endeavors.28
One might naturally question the motivation behind these various attempts to claim sovereignty or assert other rights on a continent often described as a
"white desert."29After all, these heavily disputed claims are to a continent where there are no trees or other substantial plant life; only 2% of the area is ice-free; there are no reptiles, fresh-water fish, land mammals, or land birds; and what minimal animal life does exist is entirely dependent on the ocean.30
However, there are certain other strategic considerations which make this
"white desert" more important than it might first appear.
The geostrategic importance of the region could prove critical for oceanic shipping in the future, as the path between the tip of South America and the Antarctic Peninsula "provides the most logical alternative route for maritime vessels should the Panama Canal for some reason be closed or otherwise unavailable."31In South American countries that have the territories lying closest to Antarctica, like Argentina and Chile, national sentiment regarding the validity of their disputed sovereignty runs deep.32In terms of economic resources, the Antarctic seas provide access to an abundance of marine life, which sustains a number of countries' domestic fishing industries.33Moreover, the unknown potential for Antarctic minerals and offshore hydrocarbons has not gone unnoticed by developed countries in constant need of new opportunities to exploit.34Deposits of iron, coal, copper, lead, uranium, and other valuable resources have been located on the continent.35
After World War II, the uncertain legal status of Antarctica resulted in a number of disputes.36One such disagreement in the early 1950s between the United Kingdom, Chile, and Argentina even escalated to the point of a "brief clash of arms."37Recognizing the threat of more serious conflict and the resulting disruption to scientific research on the continent, an international coalition of scientists took it upon themselves to put aside their countries' differences in the name of progress during the International Geophysical Year of 1957-1958 ("IGY").38In Antarctica, scientists participating in the IGY represented the seven claimant states, in addition to Belgium, Japan, South Africa, the Soviet Union, and the United States.39The success of the IGY highlighted the need for establishing a more stable and predictable legal environment so that scientific activities on the continent could continue in the future.40
B. The Antarctic Treaty System
The United States took the lead toward formulating a new political establishment...
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