Criminal Law In Antarctica: Law West Of The Pecos Revisited

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W. Michael Seganish

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Abstract

In a criminal law matter, jurisdiction is often a minor consideration.  That is, where the crime is committed determines who has the right to prosecute and what law applies.  There may be some jurisdictional issues whether state law or federal law governs in the United States; but this is by and large resolved by one taking jurisdiction.  The same would be normally true in the international law area where it was committed.  That is, if a crime is committed in France or Germany, then the law where it was committed would prevail subject to other international issues such as diplomatic immunity which would prevent a sovereign from prosecuting.  This is not the case in Antarctica because Antarctica belongs to no one particular nation.  It is governed by the Antarctic Treaty.  The Treaty is mindful of territorial claims and defers to a sector theory as to which criminal law applies.  This means in this sovereign-less continent that one cannot tell specifically what criminal law, if any, exists to regulate activities.  This has numerous ramifications other than the micro application in one particular case because from a macro point of view actions can occur for which there is no remedy.  The analysis limits itself to criminal law issues, but much larger implications exist in the event of an environmental disaster, for example, where there may be no remedy against an offending party.

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