09-06-2025
In the Court of the Cold — Antarctica has rights, and we're just learning to see them
The curious and, for some, curiously threatening initiative known as the Rights of Antarctica, and, more broadly, the emerging notion of Antarctic Rights has been cast, with increasing anxiety, as a security threat or a direct challenge to the existing power structures and frameworks that currently control how Antarctica is governed.
Yet, to read Rights of Antarctica as simply a threat is already to misread it. Or rather, it is to mistake a modest proposal for a revolution, or to confuse enlarging the moral circle with a call to overturn the table.
Properly understood and stripped of atmosphere, Rights of Antarctica is a legal movement concerned with giving Antarctica – under an expanded definition – a jural life. As I have noted in this column before, this is not an altogether unprecedented leap.
What form this jural life might ultimately take remains undefined. But the draft Antarctic Declaration gestures toward an Antarctica capable of exercising powers like those of a state under international law, a notion some have described as 'environmental statehood'. This should not be confused with an 'environmental state' in the more conventional sense of a nation-state that has developed advanced institutions for environmental governance.
There are several theories about how this could take shape. One proposal is that Rights of Antarctica be housed within the Antarctic Treaty System (ATS) itself. On the surface, this seems like a tidy solution: integrate Rights of Antarctica as another instrument in the ATS corpus, tack it on like the Madrid Protocol – the agreement that protects Antarctica's environment by banning mining and requiring all activities to minimise harm to its ecosystems – and move forward.
But this line of reasoning depends on assumptions that are, at best, optimistic and, at worst, structurally blind. The core difficulty is that Antarctica is protected today not because it is Antarctica, but because harming it would eventually harm us.
The current legal regime is anthropocentric not just in its design, but in its logic (and ethics). In other words, the legal system usually only pays attention to nature when something in it starts to affect humans. So, concern flows from us down to the rest of the planet, not the other way around.
Rights of Antarctica would invert that presumption. It would begin with the idea that Antarctica is the rights holder, not only the setting on which rights-holding humans negotiate their entitlements. That, understandably, unsettles a few chairs at the table.
That said, the core idea behind Rights of Antarctica is deceptively narrow – it's about giving Antarctica a say when big decisions are made.
For example, if someone wants to send a fishing boat (Josephine Soap's trawler) into Antarctic waters, we should stop and ask, 'Is this good or bad for Antarctica?' Sometimes the boat might still be allowed to go, but other times we might say no, because Antarctica's well-being matters too. In other cases, Antarctica's right to be left 'cold' may carry greater weight. It's not about saying the old rules are bad (even if that may be the case), it is about making sure those rules are doing what they were supposed to: protecting Antarctica.
Rights of Antarctica arises from this felt gap – the legal system's inability to see non-human interest unless it serves human ones. Increasingly, however, that framing no longer fits the facts. A growing number of people are starting to see that Antarctica's needs cannot always be protected by general political promises or polite international meetings.
For example, it is one thing to agree in theory that Antarctica should be preserved. It is another to actually stop a country from expanding fishing zones or building new research bases in fragile ecosystems.
That is why I suggest we are not dealing with just one system of Antarctic governance, but two.
The first governance system consists of Rights of Antarctica in its aspirational form, as well as the provisions of certain ATS legal instruments that already purport to speak on behalf of non-human interests – for example, 'intrinsic' values as contemplated in the Madrid Protocol.
The second system governs humans – their conduct, diplomatic consultation and territorial claims.
The challenge with the first governance system is that it depends on accuracy. Antarctica is a natural system, so giving it a voice it starts with science. In this setup, regulation comes after understanding.
However, the better we grasp the natural laws that shape Antarctica – like its climate, ocean currents and ecosystems – the smarter and more effective the rules for human activity around it can be.
I have elsewhere suggested that governing Antarctica's natural system – the first governance system – is best thought of as a famous Millennium Prize Problem. I'm talking about a hugely complex scientific challenge, because a natural system like Antarctica depends on grappling with fluid dynamics. Fluid dynamics are – stay with me on this one – governed by partial differential equations called the Navier-Stokes equations, which even mathematicians still struggle to fully solve.
The second governance system focuses on human society and how we interact with Antarctica.
It deals with things like territorial claims, research stations and legal decision-making processes among countries. This system is rightly human-centred, because it actually governs the people who govern and use Antarctica, not the continent itself. Ideally, the second, human governance system exists to help us implement the scientific and indigenous insights from the first, non-human one more effectively and fairly.
This distinction shows that Antarctic governance is divided. On one hand, it works to legitimise and control human activities in Antarctica. On the other, Antarctic governance tries to protect the very environment those activities endanger.
The Rights of Antarctica movement simply brings this hidden contradiction into the open.
It is on this basis that the human (and non-human governance systems) should be thought of as a kind of Ship of Theseus. This is the ancient thought experiment that asks: If you replace a ship's planks one by one, at what point does it stop being the original ship?
In our case, the laws and institutions that govern Antarctica are slowly being revised, piece by piece, to meet new realities. Eventually, they may look nothing like the structures that first set sail in 1959. But the key point – whether or not we still call it the same system – is that Antarctica still needs something strong, seaworthy and fit for the climate changes and challenges ahead.
This work demands a moral education, a period of humility, empathy and intellectual honesty.
In June, the Antarctic Rights Working Group met in Devon in southwest England to continue this line of enquiry – just as the Royal Geographical Society awarded South African founding member and lawyer Cormac Cullinan with the prestigious Shackleton Medal for the Protection of the Polar Regions.
We spoke about legitimacy of the movement, how Rights of Antarctica relates to the two governance systems, the position of indigenous communities in Antarctic governance and the formal launch of the alliance.
To speak of Antarctic Rights is not about protecting Antarctica with new words but about asking what kind of law can stand in right relationship with Antarctica. If justice is to mean anything in the Anthropocene, it must be reoriented beyond the human. DM
