|
Items in cart [1] |
Questions? Call 888-624-8373 |
| Copyright © 2009. National Academy of Sciences. All rights reserved. Terms of Use and Privacy Statement |
Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter.
Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 305
21.
The Antarctic Treaty System from the
Perspective of a State
Not Party to the System
Zain Azruai
The debate on Antarctica in the 1984 United Nations
General Assembly was quite revealing and three elements
in particular seem relevant to the present discussions.
These are the following:
First, the Antarctic Treaty consultative parties
(ATCPs) were clearly determined not to widen or deepen
any involvement of the United Nations (U.N.) in dealing
with Antarctica;
Second, the Nonconsultative Parties (NCPs) were not
consulted in any meaningful way by the ATCPs; and
Third, there was little "debate" as such, but dele-
gations made statements at each other, which often
consisted of restatements of well-known positions with
little reference to opposing points that had been made.
These three elements bring out in a graphic way
certain fundamental problems in relation to the subject
of Antarctica.
The first of these elements relates to the assertion
by the ATCPs, which emerged clearly during the debate,
that they--and they alone--have the right to make deci-
sions pertaining to Antarctica ("exclusives), that these
decisions will cover all activities in Antarctica
("totals), and that these decisions are not subject to
review or even to discussion by any other body ("unac-
countable"). Here in fact is the fundamental point at
issue between the ATCPs and the nontreaty parties (NTPs).
The second element, which is linked to these, is the
role of the NCPs; it was clear from the recent debate
that the NCPs made no input whatever to the position
taken by the ATCPs in dealing with a question that cannot
be said to be scientific or technical in nature, requir-
ing special expertise, but that was concerned with how
there can be greater international involvement in
305
OCR for page 306
306
decision-making and management regarding Antarctica.
Whatever may be the rights on paper of the NCPs, this was
a disquieting illustration of the two-tier membership of
the Antarctic Treaty System in practice.
The third element is the attitude of the ATCPs, which
clearly regarded the debate as an irrelevant nuisance to
their pursuit of the proper management of Antarctica;
indeed, a number of them made the sentiment explicitly
clear during the course of the debate that the sooner
U.N. discussion of the subject was terminated the better.
From all the above, it is clear that the recent U.N.
debate did not make a constructive contribution to a
dialogue on Antarctica. It did not examine questions
such as the following: Who has the right to decision-
making and management of Antarctica? And on what basis?
What precisely is the role of the NCPs? How should the
international community proceed to deal with the differ-
ences of view between the ATCPs and NTPs? Instead, the
debate was, for the most part, little more than a replay
of assertions and statements that have been made fre-
quently in the past. But perhaps the present workshop
will demonstrate that diplomacy is too serious a subject
to be left only to diplomats'
On the first question, while it is obvious that I
should not pretend to be able to make the case for the
ATCPs, it is necessary for me to do so for the purposes
of this discussion because the present system of decision-
making and management in relation to Antarctica is so
anomalous in terms of normal contemporary practice that
it, rather than any questioning of it, needs to be jus-
tified. At the risk of appearing presumptuous and
simplistic, therefore, I will assert that the basic case
that the ATCPs advance for insisting on their rights to
decision-making in Antarctica, which are exclusive to
themselves, which are total--to cover all aspects of
Antarctica--and which are not subject to review by any
authority, is based on the argument of their expertise
and experience in Antarctica. The management of Ant-
arctica, it is said, is sophisticated stuff, and only
those states that have real knowledge, based on actual
experience in Antarctica, should have the right to make
decisions relating to it. By the same token, it is
obvious that these states cannot be answerable to that
vast majority in the international community who have no
(or insufficient) knowledge or expertise of Antarctica.
This has to be the core of the ATCP case, because no
other argument can seek to justify their claim to extra-
OCR for page 307
307
ordinary and unique rights over Antarctica. The other
argument that is sometimes advanced, that the current
system "works, n cannot be the foundation of an exclusive
"right, n because it opens itself to the response that it
would require sanction from a higher authority, which
could subject it to review to ensure that it works better.
Nor can the justification be based on the claims asserted
by the ATCPs for the obvious reason that these claims are
not recognized by an overwhelming majority of the inter-
national community. Sometimes reference is also made to
the concept of "trusteeship, which the ATCPs are said to
exercise on behalf of the international community in
Antarctica. But, of course, trustees cannot be se~f-
appointed, they should have no material interest in the
trust property, and they must be "accountable." It is
clear, therefore, that the ATCPs' case is a right based
on "expertise. n Put in that way, such an assertion must
surely be seen as extraordinary, particularly in the
context of contemporary international relations.
THE RESPONSE OF THE NONTREATY PARTIES ( NTPs )
The response of the NTPs to the assertion of this "right n
by the ATCPs can take either of two forms. One consists
of simply denying that there exists or can exist any such
right unless it is conferred by the international com-
munity; by implication, this leads to the concept of an
international, universalist regime to replace the current
Antarctic Treaty System.
The other consists of accepting the reality of the
present situation, legal and factual, but asking neverthe-
less: Who gave the ATCPs the right that they assert?
And by what authority? What is the justification for the
notion of right based on expertise? Is this privileged
status for the ATCPs acceptable to the international
community today? It then goes on to suggest that, as a
practical matter, the whole subject should be examined in
a forum in which the interested parties would be on an
equal footing, with the implication that the present
system may be changed or amended, which would make it
more acceptable to the international community as a
whole. It is unfortunate that every questioning of the
current Antarctic Treaty System is read, deliberately or
otherwise, by the ATCPs as meaning only the first alter-
native. In fact, one of the disquieting features of the
recent debate was the reaction of extreme sensitivity and
OCR for page 308
308
resentment on the part of the ATCPs regarding any ques-
tioning of the current antarctic system. Implicit in
that attitude is that any such questioning can come only
from irresponsible or ignorant elements.
The case for this first alternative is in fact quite
straightforward. Its proponents simply assert that the
days when rights may be asserted on grounds such as dis-
covery, occupation, contiguity, inherited rights, geo-
logical affinity, possession--or of nexpertisen--are
past; they go on to point out that Antarctica has no
permanent human habitation, that the sovereignty claims
are not recognized by the overwhelming majority of the
international community (not to mention the Problem of
the overlapping claims, the existence or an unclaimed
sector, and the assertion by two states of a basis of
claim); they then conclude that Antarctica must therefore
be the common heritage of humankind to be governed by an
international regime duly constituted by the international
community. This case is as logically self-contained and
complete as that of the ATCPs in asserting rights based
on expertise and experience.
The second alternative referred to above takes the
approach not so much of "rights. as of "interest." This
_,
approach begins from the basic question:
Does humankind
as a whole have a legitimate interest in Antarctica? If
so, how might humankind's interest be best served? More
specifically, what should be the objectives of a regime
which would best serve humankind's interest? What should
be the nature of a regime that would best achieve these
objectives? And, to bring the discussion to a more con-
crete level, does the present Antarctic Treaty System
meet those objectives? If there are deficiencies, what
are the possible remedies? Linked to all these questions
is a procedural issue: How best might these questions be
discussed? Its proponents respond to these questions as
follows:
First, they assert as indisputable that humankind as a
whole has a legitimate interest in Antarctica, in how it
is governed and managed. This follows from the fundamen-
tal fact that the overwhelming majority of the inter-
national community does not recognize the sovereignty
claims. Furthermore, Antarctica is not a minute atoll of
no significance; it occupies one tenth of the surface of
the globe. Its location, vastness, fragile ecosystem,
and rich marine and possibly mineral resources have great
significance for international peace and security,
OCR for page 309
309
economy, environment, scientific research, meteorology,
telecommunications, and so on. These are clearly matters
of global interest and fall within the ambit of concern
of the international community.
Second (in response to the question: How might human-
kind's interest be best served or, more specifically,
what would be the objectives and the nature of a regime
that would best serve this interest, bearing in mind the
special characteristics of Antarctica?), they assert
that, among other things, the regime should preserve
international peace and security, it should promote and
facilitate scientific research and exchange, it should
protect the environment, and it should ensure that the
fruits of any exploitation of Antarctica's resources be
equitably shared by humankind. They assert further that
a regime serving these objectives should be one in which
member states of the U.N. as well as the relevant special-
ized agencies and other international organizations are
able to play an appropriate role and one that is account-
able to the U.N. as the most universal and representative
international organization.
Third (in testing the current regime of the Antarctic
Treaty System against these objectives), they assert that
the rights of the ATCPs--exclusive, total, unaccountable--
are the major flaws of the current system, while at the
same time they do recognize its many practical virtues.
There is simply no denying this deficiency in the current
system. Indeed, as has been pointed out earlier, the
ATCPs make no attempt to do so; rather, they seek to
justify the system on grounds of expertise and experience
and, at the same time, to cushion it by asserting that it
works (but without explaining why it cannot work in a
more open or universal system) and by pointing to the
participatory role of the NCPs and of certain inter-
national organizations. (The latter justification is
asserted, however, with some limitations and only after
23 years of the operation of the Antarctic Treaty and--
dare one suggest it?--after the validity and fairness of
the present systems have been called into question by a
number of interested NTPs.)
The issues thus stated may be examined further by
considering the notion of expertise itself, based on
experience and technological know-how, which serves as
the essential justification for the rights that the ATCPS
enjoy. If this notion was applied in relation to the
recent negotiations leading to the 1982 U.N. Convention
on the Law of the Sea (UNCLOS), what was the expertise of
OCR for page 310
310
the overwhelming majority of the member states in rela-
tion, let us say, to seabed mining to justify their
participation in those negotiations? Whatever views may
be held on UNCLOS (and the 159 signatories cannot all be
marching out of step), it has not been generally denied
that the member states of the U.N. had a "right" to
participate in those negotiations based not on their
"expertise" but on natural justice and their material
"interest" in the issue. Likewise, it can be asked
without, I hope, pressing this argument too far: What was
the expertise of the colonial peoples to be involved in
the decolonization process? They certainly had no exper-
tise in the complexities of governing or managing a
country; yet I believe that no one today would seriously
deny their right to do so. Indeed, developments in the
norms of international life in the past four decades have
advanced us from the concept of right based on expertise
in dealing with questions of peace and security, disarma-
ment, international trade and finance, and decolonization,
to a right based on natural justice and interest. Why
cannot this conceptual progress in the management of
international affairs be extended to Antarctica?
In asserting this, one is not necessarily asserting a
universalist dogma (one country, one vote), which, after
all, does not apply in a number of important inter-
national institutions such as the U.N. Security Council,
where the veto exists; the World Bank and the Inter-
national Monetary Fund, which have weighted voting; the
International Seabed Authority and various commodity
arrangements, where the interests of specific groups--
producers, consumers, and other parties most directly
affected--are taken into account. This takes us into the
area of "specials rights as distinct from "exclusives
rights.
Accepting, without necessarily admitting, that some
special expertise is required to make decisions affecting
peace and security, the environment, and scientific
research in Antarctica, should it be exercised exclusively
by the ATCPs? And what is the justification for extending
this right to cover every aspect of activity in Antarc-
tica, including the possible exploration and exploitation
of its mineral resources, which involves, but is not
limited to, the question of the equitable sharing of its
benefits, on which the expertise--let alone the exclusive
expertise--of the ATCPs is not self-evident? And,
finally, what is the justification for the exercise of
OCR for page 311
311
such rights in a manner unaccountable to the rest of the
international community?
In the light of all the points made above, the second
element mentioned at the beginning of this discussion,
namely, the precise role of the NCPs, falls into place.
Here recent developments within the Antarctic Treaty
itself, in the Convention on the Conservation of Antarctic
Marine Living Resources (CCAMLR), and in the minerals
negotiations allowing the participation of the NCPS must
be welcomed. Nevertheless, it must also be noted that
these developments appeared to have taken place as reluc-
tant concessions, which had to be extracted painfully
after more than two decades of the functioning of the
treaty itself and, with regard to the CCAMLR, to require
a prior acceptance of the complete validity of the
Antarctic Treaty itself. Also, there are specific gaps
such as the exclusion of the U.N. Environment Program and
some other international organizations, and, even more
pointed, the exclusion of the NCPs from the so-called
heads-of-delegation meetings, the justification for which
is not easy to see. But perhaps these specific omissions
may be remedied over time. Nevertheless, from the point
of view of an outsider, the role, or rather the non-role,
of the NCPs in providing inputs to the position taken by
the ATCPs during the recent U.N. General Assembly debate
was not particularly reassuring, and the basic question
remains, therefore, of their precise role and effective-
ness more generally in the Antarctic Treaty System.
Finally, and most immediately, there is still the
question: Where do we go from here? On this point, the
experience of the recent General Assembly debate was
again disappointing. In this connection, it may be
recalled that a proposal was put forward for the creation
of a U.N. Committee on Antarctica. This was firmly
resisted by the ATCPs, despite lengthy and elaborate
explanations that such a committee would not require any
of the parties to give up its position on the appropriate
system for the government of Antarctica and that the
committee was not intended to be a parallel system or to
be the thin edge of the wedge to supplant or replace the
current system. Rather, it was intended as a forum in
which all participants would be on an equal footing and
that would examine in depth issues that are not discussed
in the current system. Principally these issues would
include the following questions: How can the achievements
of the Antarctica Treaty System be preserved and, at the
same time, meet the legitimate interests of the inter-
OCR for page 312
312
national community as a whole in Antarctica? What is the
status and legal significance of the UNCLOS and the
International Seabed Authority on the situation in Antarc-
tica, more specifically in relation to the exploration
and possible exploitation of its minerals resources?
This proposal for the creation of a U.N. committee was
not pressed, and, instead, the suggestion was made that
member states be invited to comment on the U.N. Secretary-
General's study on Antarctica. Comments would be
circulated in advance of the fortieth session of the U.N.
General Assembly of 1985 in order to facilitate
discussions. But even this suggestion was adamantly
opposed by the ATCPs. It is difficult to resist
the conclusion from these developments that the basic
attitude of the ATCPs is that the U.N. has no business to
be dealing with Antarctica at all. Such an attitude, if
true, is surely unfortunate.
The fact is that serious issues are at stake with
regard to Antarctica, which involve recognizing the
realities of the situation, both legal and factual, and
the legitimate interests of all parties. These cannot be
resolved either by a simplistic, universalist approach or
by an adamant attitude that the ATCPs are better informed.
All sides need to exercise forbearance, refrain from
casting aspersions on one another's motives, and examine
issues with an open mind, in the full knowledge that
there are no easy answers to the complex question of how
Antarctica might best be governed and managed in the
interest of all humankind.
I should like to elaborate on my prepared remarks by
stressing the strong desire of Malaysia and of other
countries raising the question of Antarctica in the U.N.
to be consulted seriously on the subject. I object to
the characterization of the Malaysian initiative by some
representatives of the ATCPs as having as its sole aim
the dismantling or replacement of the Antarctic Treaty
System. The fact is that in Antarctica, the ATCPs enjoy
extraordinary rights, which are exclusive, total, and
unaccountable. While I am aware of the ATCPs' arguments
for the assertion of these rights, I am not convinced
that the arguments justify the unique character of the
rights in the circumstances of Antarctica; that is, there
is no agreement regarding sovereignty and developments in
Antarctica, which are matters of global concern.
My final point relates to the future of the antarctic
debate. I was disappointed at the rejection-of the
Malaysian initiative to establish a special U.N. committee
OCR for page 313
313
on Antarctica during the fall 1984 U.N. General Assembly
Malaysia's alternative effort met with equally strong
resistance from the ATCPs: a call for comments on the
U.N. antarctica report, which could have served as a
basis for discussion at the 1985 U.N. General Assembly.
My question is: How can governments find a forum in
which they can, on equal footing, examine in depth the
issues raised in the U.N.? I do not believe that it is
appropriate simply to ask Malaysia and others to put
forward specific proposals to be discussed at some
unspecified time in the future, because that could freeze
Malaysia into the stated position and she would be unable
to negotiate effectively.
.
This contribution is presented by Ambassador Zain in a
personal capacity.
OCR for page 314
Representative terms from entire chapter:
antarctic treaty
