Self-Determination, Sovereignty, and the Contested Architecture of the High Seas, from Uluru to Crimea
© 2026 Natalie Ross. All rights reserved.
Table of Contents
I. Introduction: The Problem of Governance by Other Means
II. The Uluru Statement: Self-Determination and the Limits of Constitutional Reform
III. The 2023 Referendum: Deliberative Deficit and the Resource Politics of Voice–Treaty–Truth
IV. Self-Determination Weaponised: The Kosovo Precedent and the Crimean Annexation
V. Minderoo, Fortescue, and the Privatisation of Ocean Governance
VI. The High Seas Treaty’s Structural Problems: Sovereignty Carve-Outs, Undefined Benefit-Sharing, and Institutional Fragmentation
VII. Hard Power, Soft Governance: A Unified Pattern
VIII. Conclusion
Notes
Bibliography
Abstract
This essay argues that four apparently disconnected episodes in contemporary governance — the 2017 Uluru Statement from the Heart and the 2023 Australian Indigenous Voice referendum, Russia’s 2014 annexation of Crimea, and the 2026 entry into force of the Biodiversity Beyond National Jurisdiction (“High Seas”) Treaty — exhibit a common structural pathology: the use of self-determination, conservation, and constitutional reform frameworks as instruments through which actors with material interests in their outcomes reallocate jurisdiction and resources while evading the deliberative and accountability constraints ordinarily attached to the exercise of public power. Drawing on constitutional law, the customary international law of self-determination, global administrative law theory, and the documented record of native title litigation, the essay traces a single analytical thread connecting the Uluru Statement’s selective invocation of the UN Declaration on the Rights of Indigenous Peoples; Russia’s opportunistic citation of the 1999 Kosovo precedent to justify the Crimean annexation and the consequent loss of Ukrainian Black Sea hydrocarbon resources; and the structural conflict of interest arising from the Minderoo Foundation’s role in implementing the High Seas Treaty, given its funding by Fortescue Metals Group — the company ordered in May 2026 to pay the Yindjibarndi people approximately AU$150 million for the destruction of 124 sacred sites. The essay closes by identifying the specific structural defects in the High Seas Treaty’s sovereignty carve-out, benefit-sharing mechanism, and non-state actor accountability architecture that leave this pattern unaddressed.
I. Introduction: The Problem of Governance by Other Means
The Clausewitzian observation that war is the continuation of politics by other means carries a productive analogue for the study of contemporary legal governance.1 Where coercive power is unavailable, illegitimate, or simply more costly than its alternatives, the continuation of political and material advantage by legal means — by shaping the frameworks within which rights, resources, and jurisdiction are allocated — has become an increasingly consequential mode of statecraft and private influence alike. This essay examines four episodes in which constitutional, customary international, and treaty-based legal reform processes have been deployed in ways that raise serious structural questions about whose interests are actually advanced by ostensibly progressive or humanitarian legal change: the 2017 Uluru Statement from the Heart and its proposal for a constitutionally entrenched Indigenous Voice to the Australian Parliament; the 2023 referendum in which that proposal was defeated; Russia’s invocation of the 1999 Kosovo intervention to justify its 2014 annexation of Crimea; and the entry into force, on 17 January 2026, of the Biodiversity Beyond National Jurisdiction Agreement — the High Seas Treaty — and the role of the Minderoo Foundation as a primary non-state implementation actor.2
These episodes are connected by a structural logic this essay calls governance by other means: the use of legal reform processes — constitutional, customary international, and treaty-based — as instruments for consolidating jurisdictional and resource advantages while insulating those advantages from the deliberative scrutiny that legitimate governance requires.3 Two literatures supply the analytical vocabulary for what follows. Stephen Krasner’s account of sovereignty as “organised hypocrisy” explains why Westphalian norms — territorial integrity, non-intervention, state consent — persist as the formal grammar of international relations even as they are routinely circumvented by the very states whose power the system is meant to constrain.4 Martti Koskenniemi’s work on the fragmentation of international law, and on what he terms “managerial anti-formalism,” explains the complementary mechanism: the tendency of functional regimes — whether self-determination claims or conservation governance — to recharacterise political disputes about resource access and territorial control as technical questions to which particular experts, military or scientific, have privileged access.5 Benedict Kingsbury’s global administrative law framework supplies the accountability lens, identifying the deficit that arises when bodies — including non-state bodies — exercise public regulatory power without the procedural constraints domestic administrative law imposes on government actors.6 Jürgen Habermas’s deliberative theory of democratic legitimacy, finally, supplies the normative standard against which constitutional and treaty processes can be measured: legitimacy depends on whether materially affected parties were able to participate in rational-critical debate, free of strategic manipulation by actors with undisclosed interests in the outcome.7
Two mechanisms recur across the episodes examined here, and the essay’s central claim is that they are structurally complementary rather than merely analogous. Hard-power territorial seizure — exemplified by Crimea — and soft-governance institutional positioning — exemplified by Minderoo’s role in the High Seas Treaty — both achieve the same result: the reallocation of resource access and jurisdictional control from existing legal frameworks to the actor with the greatest capacity to impose its preferred arrangement, by means the Westphalian system’s accountability structures are poorly designed to resist.8 The Uluru Statement and the 2023 referendum sit between these two poles, exhibiting features of both: a constitutional reform process grounded in genuine human rights content, whose sovereignty language reproduces the same unresolved tension between internal and external self-determination that, in a harder register, Russia exploited in Crimea.
Three clarifications are necessary at the outset, because the analytical claims that follow can easily be overstated. First, this essay does not argue that any of the four episodes involves intentional bad faith or conspiracy; the structural analysis offered here is independent of questions of intent, and is, in that sense, both more modest and more durable than claims about motive. Second, the essay does not deny that the Uluru Statement, the Voice proposal, and the High Seas Treaty each contain genuine public-interest content; the argument is that this content has become entangled with structural arrangements that undermine the accountability legitimate governance requires. Third, and most importantly, the essay distinguishes carefully between what the evidentiary record establishes and what would require further development. Russia’s 2014 annexation of Crimea is a documented violation of peremptory norms of international law, condemned by an overwhelming majority of UN member states;9 the Uluru Statement’s invocation of Indigenous self-determination, and Minderoo’s positioning within the High Seas Treaty’s implementation architecture, are not violations of any established legal norm in the same sense — they are accountability gaps within emerging or contested governance frameworks. That distinction matters for legal analysis even as the structural parallel between hard power and soft governance illuminates the systemic character of the problem that follows.
II. The Uluru Statement: Self-Determination and the Limits of Constitutional Reform
The Uluru Statement from the Heart was produced in May 2017 at the conclusion of the First Nations National Constitutional Convention, convened under the Referendum Council’s mandate to develop recommendations for the constitutional recognition of Indigenous Australians.10 The Statement called for two institutions: a constitutionally entrenched First Nations Voice to Parliament, and a Makarrata Commission to oversee agreement-making and truth-telling — explicitly positioned as the vehicle for the second stage of a Voice–Treaty–Truth sequence.11 The proposed constitutional mechanism was a new Chapter IX of the Commonwealth Constitution, incorporating a new section 129 that would establish the Voice, authorise it to make representations to Parliament and the Executive, and empower Parliament to legislate its composition, functions, powers, and procedures.12
This delegation — leaving the Voice’s composition and powers to be specified after, rather than before, constitutional entrenchment — became the focus of the most rigorous constitutional law analysis of the proposal, presented by Professors Nicholas Aroney and Peter Gerangelos to the Joint Select Committee in May 2023.13 Their central argument was that placing the Voice in its own constitutional chapter risked conferring on it a status analogous to that of Parliament, the Executive, and the High Court, each of which occupies its own chapter; because the High Court has consistently treated the Constitution’s three-chapter structure as normative rather than merely organisational, an entity in a fourth chapter with power to make representations to the other three could generate new grounds for judicial review of parliamentary decisions that failed to have regard to those representations — a structural alteration exceeding what the public campaign described as a merely “advisory” body.14 A subsequent paper by Aroney and Congdon identified a further, undebated tension: the proposed text would have constituted a new head of Commonwealth legislative power with respect to the Voice’s representations, potentially reaching matters — Indigenous incarceration rates, land management, cultural heritage — previously understood to lie primarily within state competence.15
The Statement grounded its proposals explicitly in the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the General Assembly in 2007, but its invocation was selective in a way that matters for the wider argument of this essay.16 UNDRIP’s Article 3 affirms Indigenous self-determination; Articles 18 and 19 require states to consult and obtain free, prior, and informed consent before adopting measures affecting Indigenous peoples. Article 46(1), however, provides an equally authoritative qualification: nothing in the Declaration may be construed to authorise action that would impair the territorial integrity or political unity of sovereign states. As Shrinkhal has observed, this provision confines self-determination to its internal dimension — autonomy within the existing state — rather than endorsing claims to external sovereignty, and Kirsty Gover’s account of the Declaration’s drafting history shows that the territorial integrity safeguard was strengthened in the final text specifically in response to concerns — concerns that Canada, Australia, and New Zealand were reported to have encouraged African states to raise — about the Declaration’s secessionist implications.17 The significance for the Uluru Statement lies in its own sovereignty language: the declaration that Indigenous sovereignty “is a juridical fact which was never ceded or extinguished, and coexists with the sovereignty of the Crown” is legally ambiguous precisely along this fault line, capable of being read either as consistent with Article 46(1)’s internal self-determination model or as asserting the kind of competing sovereign claim that provision was designed to prevent.18 The customary international law prohibition on racial discrimination — a jus cogens norm reflected in Australia’s Racial Discrimination Act 1975 (Cth) — adds a further dimension: defenders characterised the Voice as a remedial measure consistent with Article 1(4) of CERD, while critics argued that constitutional entrenchment of a race-defined body with undefined powers sat uneasily with that norm’s non-discrimination purpose, a disagreement genuinely unresolved in the academic literature.19
None of this establishes that the Uluru Statement violated customary international law in any formal sense; a finding of that kind would require identifying a specific norm, consistent state practice, and opinio juris that the foregoing analysis does not supply. A more precise — and more defensible — conclusion is available. A careful reading of UNDRIP against the background of the Mabo decision and the Native Title Act 1993 (Cth) suggests Australia was not legally compelled to constitutionally entrench a race-defined advisory body to meet its UNDRIP obligations; James Anaya’s account of meaningful self-determination emphasises procedural guarantees of free, prior, and informed consent, which the existing native title framework, suitably strengthened, could in principle deliver without constitutional amendment.20 Peter Sutton’s anthropological critique — that a national treaty process risks entrenching bi-racial categories of citizenship — supplies a further, independent ground for caution about the path chosen.21 The choice to pursue constitutional entrenchment ahead of legislative specification was, in short, a strategic choice rather than a legally compelled one, and it generated precisely the indeterminacy — constitutional and international — that the remainder of this essay traces through to its global analogues.
III. The 2023 Referendum: Deliberative Deficit and the Resource Politics of Voice–Treaty–Truth
The referendum on the Aboriginal and Torres Strait Islander Voice to Parliament was defeated on 14 October 2023, by a margin of approximately sixty per cent to forty per cent.22 Shaun Wilson’s quantitative analysis of the result identifies its principal drivers as Coalition partisanship, low institutional trust, and weaker perceptions among No voters of the discrimination faced by Indigenous Australians.23 What that analysis also reveals, by implication, is that the resource and jurisdictional implications of the Voice–Treaty–Truth sequence were not a primary driver of the outcome — suggesting they were not effectively placed before voters during the campaign. Habermas’s deliberative standard supplies the appropriate normative measure here: the legitimacy of constitutional law depends on the quality of the process through which it is generated, and that process must allow materially affected parties to debate the foreseeable consequences of the change, free from the strategic concealment of relevant information.24 Applied to the 2023 campaign, the standard raises a specific and answerable question — were the foreseeable downstream implications of the Voice–Treaty–Truth sequence for native title and resource negotiation adequately disclosed and debated? — and the evidence available suggests they were not.25
The sequence itself was not ambiguous: the Uluru Statement presented Voice, Treaty, and Truth as a deliberate three-stage logic, in which a constitutionally entrenched Voice would generate political leverage for a subsequent Makarrata treaty addressing unresolved questions of land, sovereignty, and resources.26 That sequence carried well-established foreseeable implications in the specific context of Western Australia’s resource economy. The Federal Court’s decisions in Warrie v Western Australia (2017) and Fortescue Metals Group v Warrie (2019) had already established that the Yindjibarndi people held exclusive native title rights over approximately 2,700 square kilometres of the Pilbara, including land on which Fortescue Metals Group had constructed its Solomon Hub iron ore mine.27 Lilienthal and Ahmad’s analysis of colonial land title in Australia demonstrates that the Native Title Act 1993 (Cth) inextricably links the recognition of native title to questions of resource access and compensation; a Voice empowered to make representations to the Executive on Indigenous affairs would, on Aroney and Congdon’s analysis of its likely legislative reach, generate new procedural and substantive constraints on Executive decisions affecting native title country — mining approvals, environmental assessments, and royalty arrangements among them.28
This is the deliberative deficit specific to the 2023 campaign, and it is of a different character from the documented misinformation that also circulated during it — including a fabricated letter, distributed in regional Victoria and falsely attributed to a member of the First Peoples’ Assembly, claiming the Voice would enable the reacquisition of private land.29 The fabricated claim was false and was identified as such; the underlying structural concern about the Voice–Treaty–land trajectory was not. Habermas’s account of the public sphere as a “context of discovery,” generating the reasons that legislatures and courts subsequently translate into binding decisions, requires that materially relevant information be available to participants in that sphere.30 Where the foreseeable downstream implications of a constitutional reform are technical and not apparent from the referendum question itself, the deliberative standard requires that proponents and government make those implications explicit. The Federal Court’s May 2026 finding against Fortescue Metals Group — examined in Part V below — supplies, with the considerable benefit of hindsight, the clearest evidentiary confirmation that the resource stakes bound up in Australian native title were neither speculative nor remote.31
IV. Self-Determination Weaponised: The Kosovo Precedent and the Crimean Annexation
The same fault line that runs through UNDRIP — between an internal right of self-determination, exercised within the territorial integrity of an existing state, and a claim to external sovereignty that international law has historically resisted — runs through a much harder body of practice: the use of self-determination claims to justify the unilateral alteration of state borders. NATO’s 1999 intervention in Kosovo, conducted without UN Security Council authorisation and justified on humanitarian grounds, generated exactly this kind of precedent, and its consequences for the present argument are direct.32 The International Court of Justice’s 2010 advisory opinion found that Kosovo’s 2008 declaration of independence did not violate international law, but it did so on grounds the Court treated as resting on the particular circumstances before it rather than on any general license for unilateral secession.33 That qualification has not prevented the precedent’s invocation well beyond its original context. Addressing the Russian parliament on 18 March 2014, President Putin argued that Crimea’s secession from Ukraine mirrored Kosovo’s secession from Serbia, asserting that Western powers had themselves created the precedent by recognising Kosovo’s unilateral declaration of independence and could not now deny Russia the benefit of the same logic.34
The invocation is better described as opportunistic than principled. As Surzhko-Harned and Nykodým observe, Russia has never recognised Kosovo’s independence, opposed Kosovo’s accession to international institutions, and invoked the “Kosovo precedent” only once its own actions in Georgia in 2008, and later in Ukraine, required justification — a pattern of selective legal reasoning rather than a consistently applied doctrine.35 Nor is the precedent properly assimilated to the Responsibility to Protect (R2P) norm, formally endorsed by the UN General Assembly’s 2005 World Summit Outcome: R2P, on most readings, reinforces rather than displaces state sovereignty, because it contemplates intervention only after Security Council authorisation — precisely the step Russia has not sought in Ukraine.36 When Russian officials describe their actions as protecting populations from “genocide,” they invoke the rhetorical register of humanitarian intervention while actively undermining the institutional framework, centred on the Security Council, that R2P depends on.37 The more durable lesson of Kosovo, on this account, is not that the intervention was simply right or wrong, but that the international community’s failure to institutionalise any legal framework governing what had occurred left a permanent ambiguity that every subsequent actor has been free to fill with its own preferred interpretation.38
Crimea is the clearest and most consequential instance of that ambiguity being exploited, and its resource dimensions were substantial. The UN General Assembly’s Resolution 68/262, adopted on 27 March 2014 by a vote of 100 to 11 with 58 abstentions, affirmed that the referendum held in Crimea on 16 March 2014 could not form the basis for any alteration of the peninsula’s status and called on all states not to recognise such an alteration.39 Russia’s position — that the referendum expressed Crimean self-determination — reproduced, in the hard-power register, precisely the ambiguity between internal and external self-determination that the Uluru Statement’s sovereignty language reproduces in the soft-law register; in both cases a self-determination argument was deployed to advance a claim with direct resource implications.40 Ukraine instituted Annex VII UNCLOS arbitral proceedings against Russia in September 2016, alleging that Russia had since 2014 unlawfully excluded Ukraine from its maritime rights, exploited its sovereign resources, and usurped its regulatory authority across the Black Sea, the Sea of Azov, and the Kerch Strait; the Permanent Court of Arbitration’s 2020 Award on Jurisdiction upheld Ukraine’s claims relating to Russian interference with hydrocarbon exploration and exploitation in Ukraine’s exclusive economic zone.41 The Norwegian Defence Research Establishment has documented that the annexation transferred effective control of most of Ukraine’s Black Sea exclusive economic zone — including the Crimean continental shelf and its hydrocarbon deposits — to Russia; Ukraine’s own Energy Ministry estimated the loss at approximately eighty per cent of its Black Sea oil and gas deposits, while the Crimean gas company Chornomornaftogaz, holding reserves of 58.6 billion cubic metres, was unilaterally “nationalised” and its fields seized.42 Ukraine’s then Energy Minister estimated the foregone income from lost Black Sea shelf resources at US$40 billion, a figure the Atlantic Council suggests is likely conservative once deep-water reserves — estimated at over two trillion cubic metres of gas across the wider shelf — are included.43
The mechanism of this resource transfer is legally instructive for the wider argument. Russia did not simply occupy Crimea; it exploited the same structural tension between territorial integrity and self-determination that Article 46(1) of UNDRIP was designed to manage, creating a jurisdictional fait accompli that the UNCLOS dispute resolution mechanism has been unable fully to remedy.44 Valentin Schatz’s analysis of the Kerch Strait Bridge and Russia’s subsequent imposition of new passage requirements concludes that these measures violated UNCLOS Articles 34–45 governing transit passage, but the unresolved sovereignty dispute has severely constrained the remedies practically available to Ukraine.45 The Atlantic Council’s assessment of the wider Black Sea region captures the structural problem with precision: the absence of clear shared rules, compounded by Turkey’s non-ratification of UNCLOS, has produced a resource competition resolved less by legal entitlement than by the capacity to drill first — a condition the Council warns “could leave room for conflict in the wider Black Sea region and create vulnerabilities for NATO and its partners.”46 When hard power displaces territorial integrity norms, and the available legal remedies are constrained by the very jurisdictional ambiguity the violation exploited, resource allocation reverts to a form of extraterritorial control that the Westphalian system was specifically designed to prevent — and which, as the next section shows, has a soft-governance analogue in the High Seas Treaty itself.
V. Minderoo, Fortescue, and the Privatisation of Ocean Governance
The Minderoo Foundation was established by Andrew and Nicola Forrest in 2001 and is explicitly funded by dividends from Fortescue Metals Group; Andrew Forrest remains Executive Chairman of Fortescue, one of the world’s four largest iron ore producers.47 In May 2026, the Federal Court ordered Fortescue to pay the Yindjibarndi people approximately AU$150 million in compensation — the largest native title compensation award in Australian legal history — for the destruction of 124 sacred sites during the construction of the Solomon Hub mine. Justice Burley found that Fortescue had proceeded without the Yindjibarndi people’s consent, damaging connections to country the judgment described as “deep and visceral.”48 The structural conflict of interest this arrangement generates is not a matter of imputing bad faith to any individual; it is a structural observation: an entity funded by extractive industry profits is positioned as a primary non-state actor in the governance architecture of a treaty whose provisions — marine genetic resource benefit-sharing, environmental impact assessment, and marine protected area designation — bear directly on the regulation of extractive operations, including the seabed mining interests of Australian resources companies.49
Minderoo’s positioning within the High Seas Treaty’s implementation architecture is substantial and growing. The Foundation has committed to operationalise the BBNJ gender strategy and action plan, to establish regional stakeholder networks focused on equity and inclusive participation, and to launch a High Seas Women’s Leadership and Learning Programme; at the 2025 UN Ocean Conference, Andrew Forrest committed a further AU$25 million in new support as part of a AU$170 million total ocean investment spanning marine protected area implementation, high seas protection, eDNA science conducted with UNESCO, and real-time vessel monitoring.50 These commitments serve genuine public interests — Irini Papanicolopulu’s analysis of the Treaty’s equity provisions treats the gender strategy and leadership programmes as substantive contributions to its intergenerational equity goals — but they also constitute precisely the non-state entry points through which Minderoo has secured a durable role in the Treaty’s implementation architecture.51
Benedict Kingsbury’s global administrative law framework supplies the analytical tools needed to characterise the resulting problem with precision. Kingsbury, Krisch, and Stewart argue that much of contemporary global governance is best understood as a form of administration — the exercise of public regulatory power by bodies, including non-state bodies, that lacks the accountability structures domestic administrative law has developed for government actors.52 A philanthropic foundation that shapes the institutional design of a treaty’s implementation architecture exercises a form of public regulatory power, even where that power is informal and unacknowledged as such; yet the BBNJ Agreement’s Conference of Parties procedures contain no equivalent of the World Health Organization’s Framework of Engagement with Non-State Actors (FENSA), which at minimum requires a risk assessment of conflicts of interest before formal engagement with non-state actors is authorised.53 Mariana Mazzucato’s account of the relationship between private philanthropy and public value creation supplies the final piece: where private actors capture the regulatory frameworks that govern their own industries, the public value generated by collective action is liable to be redirected toward private advantage. Translated to the present case, an entity funded by extractive industry surplus is positioned to shape the environmental governance framework that regulates extraction — with the structural potential, whether or not it is realised in practice, to privilege the interests of technologically advanced extractive operators over the common heritage interests of states that lack extractive capacity.54
This arrangement replicates, at the international level, the structural pattern already identified in the domestic episodes examined in Parts II and III. In the Uluru Statement, sovereignty language with undefined legal consequences was embedded in a constitutional proposal carrying foreseeable implications for land and resource negotiations; in the 2023 referendum, those implications were not adequately disclosed to voters; in the High Seas Treaty, the governance architecture that will determine the rules for marine resource access and environmental impact assessment is being shaped, in part, by an entity simultaneously invested, through its funding source, in the extractive industries those rules will govern. The Federal Court’s May 2026 finding against Fortescue supplies the most concrete evidentiary anchor available for this analysis: the company whose profits fund Minderoo’s ocean governance work is the same company that spent more than a decade contesting the native title rights of the Yindjibarndi people over the land on which its most valuable mine operates.55 The structural conflict of interest is not hypothetical; it is documented in the Federal Court record.
VI. The High Seas Treaty’s Structural Problems: Sovereignty Carve-Outs, Undefined Benefit-Sharing, and Institutional Fragmentation
The non-state accountability gap examined above is one structural problem among several that, taken together, leave the High Seas Treaty’s governance architecture considerably less settled than its symbolic significance — as the most consequential addition to the law of the sea since UNCLOS itself — might suggest.56
The first problem is the sovereignty carve-out in Article 6, which provides that the Agreement “shall not be relied upon as a basis for asserting or denying any claims to sovereignty, sovereign rights, or jurisdiction, including in respect of any disputes relating thereto.”57 The provision was inserted at the insistence of states with contested maritime claims — primarily, according to the Ge0pet implementation analysis, China’s determination to protect its South China Sea claims from any BBNJ-based area management tool — and Natalia Trondhjem’s analysis of the negotiations confirms it was among the last issues resolved, drafted in terms general enough to encompass any disputed maritime territory.58 The consequence connects directly to the Crimean case examined in Part IV. The Black Sea contains no high seas: all of its waters fall within the national jurisdiction of its six coastal states or within the contested zones the Crimean annexation generated, and the European External Action Service confirms that while most Black Sea boundary overlaps have been resolved by bilateral delimitation or by the International Court of Justice, the zones contested as a consequence of the annexation remain unresolved and are unlikely to be resolved by negotiation in the present geopolitical environment.59 The High Seas Treaty therefore does not directly govern these waters — but its sovereignty carve-out establishes a precedent of consequence: that international ocean governance frameworks must acknowledge the existence of unresolved territorial disputes and decline to adjudicate them. That precedent simultaneously protects states with legitimate, good-faith maritime boundary disputes and extends comparable protection to states — Russia in the Black Sea, China in the South China Sea — whose maritime claims rest on annexation or on assertions of jurisdiction that international tribunals have rejected.60
The second problem compounds the first. The Treaty permits its Conference of Parties to adopt area-based management tools and marine protected areas by a three-quarters majority — meaning unanimous consent is not required for such designations to proceed.61 In principle, this majority-voting mechanism could be used to designate protected areas or impose environmental impact assessment requirements in maritime zones adjacent to disputed territory, including zones adjacent to the Crimean continental shelf; in practice, Article 6’s sovereignty carve-out supplies the disputing state with a ready legal argument against any such designation. The result is a governance instrument whose ambitions are simultaneously expanded by majority voting and constrained by sovereignty carve-outs — precisely the kind of structural tension Koskenniemi’s fragmentation analysis would predict from a regime assembled out of irreconcilable normative starting points.62
The third problem concerns the Treaty’s central substantive commitment: the application of the “common heritage of humankind” principle, inherited from UNCLOS’s seabed regime, to marine genetic resources.63 The mechanism for sharing the benefits of marine genetic resource exploitation — the provision most likely to redistribute income from technologically advanced states to states without comparable extractive capacity — remains entirely unspecified in the Treaty text, with its operation deferred to future determination by the Conference of Parties; the environmental impact assessment provisions similarly delegate significant rule-making authority to subordinate bodies that have yet to be constituted.64 Trondhjem’s characterisation of the Agreement as “four treaties in one” — covering marine genetic resources, area-based management tools, environmental impact assessment, and capacity-building in a single instrument — captures both the Treaty’s ambition and the extent to which its core operative content has been left for future negotiation rather than settled at the point of ratification.65
The fourth problem is one of adoption and institutional reach. The United States supports high seas conservation in principle but is considered unlikely to ratify the Treaty in the near term, owing to Senate opposition grounded substantially in sovereignty concerns; Russia has voiced separate concerns that the Treaty’s benefit-sharing provisions could constrain future fishing and seabed mining interests and operate as a drain on profits, a suspicion sharpened by the International Tribunal for the Law of the Sea’s 2024 advisory opinion that greenhouse gas emissions constitute marine pollution under UNCLOS, and by the International Court of Justice’s July 2025 advisory opinion establishing binding state obligations to protect the climate system — both expansions of international legal obligation that Russia views with evident unease.66 Finally, the Treaty does not replace the existing institutional architecture of ocean governance: regional fisheries management organisations and the International Seabed Authority continue to regulate their respective sectors, and how the Treaty’s conservation ambitions will mesh with those pre-existing institutions — whose mandates were not designed with the BBNJ framework in view — remains genuinely unsettled, with jurisdictional disputes a foreseeable consequence.67
Taken together, these four problems — an undefined benefit-sharing mechanism, a sovereignty carve-out broad enough to shelter both legitimate disputes and the consequences of unlawful annexation, non-ratification by at least one major power and documented hostility from another, and unresolved overlap with pre-existing regulatory bodies — describe a treaty whose most consequential governance decisions have been deferred rather than resolved. It is this deferral, more than any single defect, that creates the institutional space within which an actor such as Minderoo Foundation can establish itself as a primary implementation partner before the accountability architecture capable of scrutinising that role has been built.68
VII. Hard Power, Soft Governance: A Unified Pattern
It is now possible to state the structural parallel between Crimea and the High Seas Treaty’s governance architecture with some precision. Both involve the reallocation of access to resource-rich maritime spaces through mechanisms that exploit specific structural vulnerabilities of the Westphalian system: the tension between territorial integrity and self-determination on the one hand, and the tension between state consent and non-state governance on the other.69 Both produce a result in which the actor with the greatest capacity to impose its preferred arrangement — whether through military seizure or through philanthropic positioning within governance architecture — acquires an effective advantage in a resource competition that the Westphalian system’s formal equality norms were designed to prevent.
The differences between the two mechanisms remain analytically important and should not be collapsed into a single moral register. Russia’s annexation of Crimea was a violation of peremptory norms of international law — the prohibition on the use of force, the principle of territorial integrity, the prohibition on the acquisition of territory by force — condemned by an overwhelming majority of the international community and the subject of continuing international legal proceedings.70 Minderoo’s role in the High Seas Treaty’s implementation architecture is not a violation of any established legal norm; it is an accountability gap within an emerging governance framework. The distinction matters for legal analysis even as the structural parallel illuminates the systemic character of the underlying challenge.
What unites the two mechanisms at the theoretical level is Koskenniemi’s concept of managerial anti-formalism — the tendency of functional international regimes, whether self-determination claims or conservation governance frameworks, to expand their jurisdictional reach by recharacterising what are fundamentally political disputes about resource access and territorial control as technical questions to which particular experts have privileged access.71 In the Crimean case, Russia characterised the annexation as a security and self-determination matter requiring military and diplomatic expertise. In the High Seas Treaty case, ocean biodiversity conservation is characterised as a scientific and governance matter requiring the expertise of conservation-focused non-state actors. In both cases, the underlying political economy of resource access — who controls the energy and genetic wealth of the maritime commons — is displaced from democratic deliberation into a register where formal democratic accountability is either absent, as in Crimea, where it was extinguished by force, or attenuated, as in the High Seas Treaty, where it has simply not yet been built. Koskenniemi and Nouwen’s broader account of the shift from state-consent-based treaty-making to a system populated by NGOs, corporations, and transnational networks captures the mechanism precisely: this shift does not transcend politics but reproduces it in a less democratically accountable form, because it presents what are political choices about resource distribution as the output of technical expertise.72
The same fault line connects this pattern back to the Australian domestic episodes with which the essay began. The self-determination framework invoked by the Uluru Statement, and the tension between UNDRIP’s Articles 3 and 46(1) traced in Part II, sit within the same international legal landscape that produced the Crimean self-determination argument and the High Seas Treaty’s sovereignty carve-out; Article 46(1) was specifically drafted to prevent Indigenous self-determination provisions from being used to destabilise existing state territorial arrangements — precisely the concern that Russia exploited in a harder register, and that the Treaty’s Article 6 was designed to manage in the ocean governance context.73 The four episodes examined in this essay are accordingly not coincidentally connected; they are structurally related instances of a single, larger pattern: the use of internationally legitimate normative frameworks — self-determination, common heritage, ocean conservation, constitutional reform — as vehicles for advancing claims to resource access and jurisdictional control that the Westphalian system’s formal equality norms would otherwise constrain. In each case, the formal legitimacy of the normative framework insulates the underlying resource claim from the scrutiny it would attract if advanced in its material terms.
VIII. Conclusion
This essay has argued that the Uluru Statement from the Heart, the 2023 referendum, Russia’s annexation of Crimea, and the Minderoo Foundation’s role in High Seas Treaty implementation exemplify a single structural pattern in contemporary governance: the use of self-determination, constitutional reform, and conservation frameworks by actors with material interests in their outcomes, advanced through mechanisms — hard power in one case, soft institutional positioning in the others — that the existing architecture of constitutional and international law is poorly equipped to discipline.
The constitutional analysis showed that the Voice proposal raised genuine, unresolved questions of separation of powers and federal balance that were not adequately debated in the 2023 campaign. The international law analysis showed that the Uluru Statement’s invocation of UNDRIP was selective, eliding Article 46(1)’s territorial integrity constraints, and that the same self-determination/territorial-integrity tension — traceable through the unresolved legacy of the 1999 Kosovo intervention — was exploited by Russia in a far harder register to seize Ukrainian Black Sea hydrocarbon resources worth tens of billions of dollars. The deliberative democracy analysis showed that the foreseeable resource implications of the Voice–Treaty–Truth sequence were not adequately disclosed to voters. And the global administrative law analysis showed that Minderoo Foundation’s positioning as a primary High Seas Treaty implementation actor creates a structural conflict of interest that the Treaty’s current governance architecture — its undefined benefit-sharing mechanism, its broad sovereignty carve-out, and its absence of any FENSA-equivalent disclosure requirement — does not address.
Four modest, evidence-grounded recommendations follow directly from this analysis. Constitutional reforms carrying foreseeable resource and jurisdictional implications should require a formal downstream impact assessment before being put to referendum, on the model of environmental impact assessment law. Future proposals for Indigenous constitutional recognition should engage the full text of UNDRIP, including Article 46(1), rather than selectively invoking self-determination alone. The BBNJ Conference of Parties should adopt, at its first opportunity, a FENSA-equivalent framework requiring disclosure of funding sources and a conflict-of-interest risk assessment before non-state entities are assigned formal implementation roles, and should treat the unresolved relationship between its majority-voting and sovereignty-carve-out provisions as an urgent drafting priority rather than a permanent feature of the regime. And Australian native title law should be strengthened to require genuine free, prior, and informed consent with enforceable procedural consequences, rather than the “right to negotiate” framework that demonstrably failed to prevent the destruction of 124 Yindjibarndi sacred sites.
What this essay has not argued — and what the evidentiary record does not support — is that all four episodes constitute formal violations of customary international law; Crimea is the clear and important exception. Nor has it argued that these episodes involve the intentional subversion of legal frameworks for private gain. The structural critique offered here is both more modest and more robust than such claims: governance processes that lack adequate accountability mechanisms for the interests genuinely at stake in them produce predictable patterns of private advantage and public harm, regardless of the intentions of their architects. That is the lesson, at every scale examined here, from Uluru to the Black Sea to the High Seas.
Notes
1. Carl von Clausewitz, On War, trans. Michael Howard and Peter Paret (Princeton: Princeton University Press, 1976), 87.
2. First Nations National Constitutional Convention, “Uluru Statement from the Heart,” Uluru, 26 May 2017, https://ulurustatement.org/the-statement/view-the-statement/; Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), UN Doc A/CONF.232/2023/4 (entered into force 17 January 2026).
3. Martti Koskenniemi, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682 (13 April 2006), 14–18; Benedict Kingsbury, Nico Krisch, and Richard B. Stewart, “The Emergence of Global Administrative Law,” Law and Contemporary Problems 68, no. 3–4 (2005): 15–61.
4. Stephen D. Krasner, Sovereignty: Organized Hypocrisy (Princeton: Princeton University Press, 1999), 3–9.
5. Koskenniemi, “Fragmentation of International Law,” paras 14–18; Martti Koskenniemi and Sarah M. H. Nouwen, “International Lawmaking: Actors, Processes, Impact,” European Journal of International Law 32, no. 4 (2021): 1049–1053.
6. Benedict Kingsbury, “The Concept of ‘Law’ in Global Administrative Law,” European Journal of International Law 20, no. 1 (2009): 23–57.
7. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), 299–308.
8. Krasner, Sovereignty, 3–9; Koskenniemi and Nouwen, “International Lawmaking,” 1052.
9. United Nations General Assembly Resolution 68/262, “Territorial Integrity of Ukraine,” UN Doc A/RES/68/262 (27 March 2014).
10. Referendum Council, Final Report of the Referendum Council (Canberra: Australian Government, 2017), 2; First Nations National Constitutional Convention, “Uluru Statement from the Heart.”
11. First Nations National Constitutional Convention, “Uluru Statement from the Heart.” The tripartite Voice–Treaty–Truth structure is explicit in the Statement’s text.
12. Constitution Alteration (Aboriginal and Torres Strait Islander Voice) 2023 (Cth), proposed s 129.
13. Nicholas Aroney and Peter Gerangelos, Submission No 92 to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum, Parliament of Australia, May 2023, 3–4.
14. Aroney and Gerangelos, Submission No 92, 5–7; Peter Gerangelos, “The Separation of Powers and Legislative Interference with Judicial Functions in Pending Cases,” Federal Law Review 30, no. 1 (2002): 1–42.
15. Nicholas Aroney and Peter Congdon, “The Voice Referendum and the Federal Division of Powers: A New Head of Commonwealth Legislative Power to Implement the Voice’s Representations?,” SSRN, 2 October 2023, 2.
16. United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (13 September 2007), arts 3, 18, 19, 46.
17. Rashwet Shrinkhal, “Indigenous Sovereignty and Right to Self-Determination in International Law: A Critical Appraisal,” AlterNative: An International Journal of Indigenous Peoples 17, no. 1 (2021): 74; Kirsty Gover, “Settler-State Political Theory, CANZUS and the UN Declaration on the Rights of Indigenous Peoples,” European Journal of International Law 26, no. 2 (2015): 345–402.
18. First Nations National Constitutional Convention, “Uluru Statement from the Heart.”
19. Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195, art 1(4); CERD, General Recommendation 32, UN Doc CERD/C/GC/32 (24 September 2009); Racial Discrimination Act 1975 (Cth).
20. S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford: Oxford University Press, 2004), 49–56, 102–109; Mabo v Queensland (No 2) (1992) 175 CLR 1 (HCA); Native Title Act 1993 (Cth).
21. Peter Sutton, The Politics of Suffering: Indigenous Peoples and the Liberal State, 2nd ed. (Melbourne: Melbourne University Press, 2011), 144–167.
22. Shaun Wilson, “Voiceless: Division, Distrust and Discrimination at the 2023 Voice Referendum,” Australian Journal of Social Issues (2025).
23. Wilson, “Voiceless.”
24. Habermas, Between Facts and Norms, 299–308.
25. Wilson, “Voiceless.”
26. First Nations National Constitutional Convention, “Uluru Statement from the Heart.”
27. Warrie (formerly TJ) on behalf of the Yindjibarndi People v State of Western Australia [2017] FCA 803 (Rares J, 20 July 2017); Fortescue Metals Group v Warrie on behalf of the Yindjibarndi People [2019] FCAFC 177 (Full Federal Court, 25 October 2019).
28. Gary Lilienthal and Nehaluddin Ahmad, “Colonial Land Title in Australia: A Meta-Legal Critical Inquiry,” Commonwealth Law Bulletin 45, no. 2 (2019): 231–256; Aroney and Congdon, “The Voice Referendum and the Federal Division of Powers,” 2.
29. “No, the Voice to Parliament Would Not Force People to Give Up Their Private Land,” The Conversation.
30. Habermas, Between Facts and Norms, 305–308.
31. Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585 (Burley J, 12 May 2026).
32. Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, 2000), 1–4, 163–198.
33. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 2010, p. 403 (22 July 2010), paras 84, 122.
34. Vladimir Putin, “Address by President of the Russian Federation,” Moscow, Kremlin, 18 March 2014, transcript, en.kremlin.ru; quoted in “Putin Says Kosovo Precedent Justifies Crimea Secession,” Balkan Insight, 18 March 2014.
35. Lena Surzhko-Harned and Jiří Nykodým, “Why the ‘Kosovo Precedent’ Was a Gateway for Russia’s Abuse of International Law,” The Loop (ECPR), 21 February 2023.
36. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001); 2005 World Summit Outcome, UN Doc A/RES/60/1 (24 October 2005), paras 138–139.
37. Surzhko-Harned and Nykodým, “Why the ‘Kosovo Precedent’ Was a Gateway.”
38. Independent International Commission on Kosovo, The Kosovo Report, 163–198.
39. UNGA Resolution 68/262, “Territorial Integrity of Ukraine.”
40. Cf. note 18 above.
41. Ukraine, Notification and Statement of Claim, Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait (Ukraine v Russian Federation), Annex VII UNCLOS Arbitral Proceedings, 16 September 2016; Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait (Ukraine v Russian Federation), Award on Jurisdiction, PCA Case No 2017-06, 21 February 2020.
42. Norwegian Defence Research Establishment (FFI), “Russia’s Maritime Expansionism in the Black Sea Region,” FFI Report 22/00539 (Kjeller: FFI, 2022); Center for European Policy Analysis, “The Black Sea Peace Dividend — Gas, Gas, Gas,” 13 September 2023; Euromaidan Press, “Black Sea Gas Deposits — An Overlooked Reason for Russia’s Occupation of Crimea,” 10 October 2018.
43. Maksym Bugriy, “The Cost to Ukraine of Crimea’s Annexation,” Eurasia Daily Monitor (Jamestown Foundation) 11, no. 70 (April 2014); Atlantic Council, “Why the Black Sea Could Emerge as the World’s Next Great Energy Battleground,” 30 March 2021.
44. UNDRIP, art 46(1); cf. notes 16–18 above.
45. Valentin Schatz, “Russia’s Annexation of Crimea and the Passage of Ships Through Kerch Strait: A Law of the Sea Perspective,” Ocean Development and International Law 50, no. 2–3 (2019): 95–115.
46. Atlantic Council, “Why the Black Sea Could Emerge as the World’s Next Great Energy Battleground.”
47. Minderoo Foundation, “Co-Founders,”
48. Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585 (Burley J, 12 May 2026); “Record Compensation Payout for Yindjibarndi People after Years-Long Legal Battle with Mining Giant,” SBS NITV, 14 May 2026.
49. BBNJ Agreement, arts 6, 9–14, 18, 22, 60.
50. Minderoo Foundation, “High Seas Treaty 2026 Update,” Minderoo Foundation, “Written Statement: 2025 United Nations Ocean Conference,”
51. Irini Papanicolopulu, “Intergenerational and Intra-generational Equity Under the BBNJ Agreement,” Marine Policy (2024).
52. Kingsbury, Krisch, and Stewart, “The Emergence of Global Administrative Law,” 15–61.
53. Odile Ammann, “Between Participation and Capture in International Rule-Making: The WHO Framework of Engagement with Non-State Actors,” European Journal of International Law 32, no. 1 (2021): 227–272; World Health Organization, Framework of Engagement with Non-State Actors (FENSA), WHA Res 69.10 (28 May 2016), paras 22–26, 44–45.
54. Mariana Mazzucato, The Value of Everything: Making and Taking in the Global Economy (London: Allen Lane, 2018), 179–214.
55. Yindjibarndi Ngurra Aboriginal Corporation RNTBC v State of Western Australia (No 2) [2026] FCA 585 (Burley J, 12 May 2026).
56. High Seas Alliance, “Historic High Seas Treaty Enters into Force,” 16 January 2026.
57. BBNJ Agreement, art 6.
58. Ge0pet, “Biodiversity Beyond National Jurisdiction (BBNJ) Treaty: Implementation and Strategic Outlook,” Substack, October 2025; Natalia Trondhjem, “Four Treaties in One: The Biodiversity Beyond National Jurisdiction Agreement,” American Journal of International Law 117, no. 4 (2023).
59. European External Action Service, “The Black Sea: Revised EU Maritime Security Strategy Action Plan, Regional and Global Maritime Affairs,” Maritime Delimitation in the Black Sea (Romania v Ukraine), ICJ Reports 2009, 61.
60. Trondhjem, “Four Treaties in One.”
61. BBNJ Agreement, art 48; Stiftung Wissenschaft und Politik, “The High Seas Treaty: A New Hub for Global Ocean Governance,” SWP Comment No 52 (Berlin: SWP, 2023).
62. Koskenniemi, “Fragmentation of International Law,” paras 14–18.
63. BBNJ Agreement, art 9; United Nations Convention on the Law of the Sea, arts 136–137.
64. Trondhjem, “Four Treaties in One”; Papanicolopulu, “Intergenerational and Intra-generational Equity.”
65. Trondhjem, “Four Treaties in One.”
66. Ge0pet, “BBNJ Treaty: Implementation and Strategic Outlook”; China Policy, “Beijing’s Bid for the BBNJ High Seas,” Substack, 27 April 2026.
67. Mongabay, “A New Treaty Comes into Force to Govern Life on the High Seas,” January 2026.
68. Kingsbury, “The Concept of ‘Law,’” 23–57.
69. Krasner, Sovereignty, 3–9.
70. UNGA Resolution 68/262, “Territorial Integrity of Ukraine.”
71. Koskenniemi, “Fragmentation of International Law,” paras 14–18.
72. Koskenniemi and Nouwen, “International Lawmaking,” 1052.
73. UNDRIP, art 46(1); BBNJ Agreement, art 6.
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