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OCR for page 315
The Antarctic Treaty System from the
Perspective of a Non-Consullative Party
to the Antarctic Treaty
Peter Bruckner
INTRODUCTION
According to the provisions of Article XIII(1), the
Antarctic Treaty shall be open for accession by any stat
that is a member of the U.N. or by any other state that
may be invited to accede to the treaty with the consent
of all the contracting parties whose representatives are
entitled to participate in the meetings provided for
under Article IX of the treaty, the so-called consulta-
tive parties (CPs).
The Antarctic Treaty, signed on December 1, 1959, by
the 12 participants in the International Geophysical Year
(IGY): Argentina, Australia, Belgium, Chile, France,
Japan, New Zealand, Norway, South Africa, the USSR, the
United Kingdom and the U.S. of America, entered into
force on June 23, 1961, when it was ratified by all 12
signatories.
The following states have subsequently acceded to the
treaty at the times indicated:
Poland
Czechoslovakia
Denmark
The Netherlands
Romania
German Democratic Republic
Brazil
Bulgaria
Federal Republic of Germany
Uruguay
Italy
Papua New Guinea
Peru
315
e
June 1961
June 1962
May 1965
March 1967
September 1971
November 1974
May 1975
September 1978
February 1979
January 1980
March 1981
March 1981
April 1981
OCR for page 316
316
Spain
People's Republic of China
India
Hungary
Sweden
Finland
Cuba
March 1982
June 1983
August 1983
January 1984
April 1984
May 1984
August 1984
According to the treaty, these states are also contract-
ing parties; they are subject to the same general
obligations and enjoy the same general rights under the
treaty as the original participants.
However, the original twelve states enjoy a special
status under the treaty. They are born members of the
consultative meetings provided for under Article IX of
the treaty. Any acceding state may--pursuant to Article
IX(2)--be entitled to appoint representatives to the
meetings during such time as that contracting party
demonstrates its interest in Antarctica by conducting
substantial scientific research activity there, such as
the establishment of a scientific station or the dispatch
of a scientific expedition. The following acceding
states have been recognized as CPs: Poland (1977), the
Federal Republic of Germany (1981), and Brazil and India
(1983).
The purpose of this chapter is to present the outlook
of an acceding state--a nonconsultative party (Ncp)--on
the Antarctic Treaty System. This system is now composed
of the 1959 Antarctic Treaty, the 1972 Convention for the
Conservation of Antarctic Seals, the 1980 Convention on
the Conservation of Antarctic Marine Living Resources and
the nongovernmental Scientific Committee on Antarctic
Research (SCAR). The system also covers all the recommen-
dations approved by the CPs.
This chapter will focus mainly on the Antarctic Treaty
and will essentially be based on the history of Denmark 'S
participation in the treaty since 1965. The opinions
expressed are the personal views of the author and do not
necessarily represent those of his government.
Furthermore, this discussion does not purport to
reflect the views of other acceding states, except where
official statements have provided a sufficient basis for
expressing more generalized NCP opinions. In this
respect, the report that the U.N. Secretary-General was
requested to submit to the 39th U.N. General Assembly
would have constituted a valuable source of updated
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317
information on other NCP views. However, this material
was not available at the time of drafting the manuscript.
MOTIVES FOR ACCESSION
Several factors influenced the Danish decision on acces-
sion to the Antarctic Treaty. Danish scientists partici-
pated in research activities, together with colleagues
from other nonsignatory countries, during the IGY. Scien-
tific experience from Greenland--the polar regions of the
Kingdom of Denmark--undoubtedly influenced the scientific
interest in Antarctica. Danish scientific circles
strongly supported the principles of the treaty, in
particular the principle of free scientific research.
In 1952 the vessel Kista Dan of the Danish company J.
Lauritzen made a voyage to Antarctica, thereby starting
an annual series of calls that the company's ships have
since maintained.]
The treaty provides that the contracting parties inform
one another of certain activities, such as shipping
related to expeditions to and within Antarctica. Diffi-
culties concerning the implementation of these obligations
were eventually overcome. The fact that NCPs had no
influence on recommendations adopted at consultative
meetings also sparked certain hesitations. In this
respect, however, it was argued that the recommendations
would not become binding on any country unless that
country had given its express consent.
An essential factor in the Danish decision-making
process was general interest in supporting a treaty in
which East and West had been able to join in cooperation
based on laudable principles.2
In retrospect, the Danish expectations have not been
disappointed. In its contribution to the study of the
U.N. Secretary-General made pursuant to Resolution 38/77
of December 15, 1983, the Danish government stated, inter
alla:
For more than 20 years the 1959 Antarctic
Treaty has provided a legal regime in Antarctica
which has removed the potential for disputes
relating to the exercise of sovereignty and
guaranteed peace and stability in the region. In
the view of the Government of Denmark it is of
particular importance that the Treaty prohibits
any military use of the region and guarantees its
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318
status as a nuclear weapons free area. Further-
more, the Treaty has provided an exemplary
framework for free scientific research and has
created the basis for an extensive international
cooperation to protect the extremely fragile
ecosystem of Antarctica.
There is a comprehensive system of on-site
inspection, with observers being guaranteed
complete freedom of access at any time to any and
all areas of Antarctica. The Scientific Committee
on Antarctic Research (SCAR) also forms part of
the system and has served to initiate, promote and
coordinate scientific activities in Antarctica.
The Antarctic Treaty has so far proved its
value for the benefit and interest of mankind as a
whole. It has set an example of international
cooperation which has succeeded according to its
purpose.
FUNCTIONING OF TEE TREATY SYSTEM
As a general rule the treaty system has functioned
smoothly in practice, seen from a Danish point of view.
One of the important aspects has been information on
developments within the system. Article III provides
that in order to promote international cooperation in
scientific investigation in Antarctica the contracting
parties-shall--to the greatest extent feasible and
practicable--exchange information regarding plans for
scientific programs and scientific observations and
results from Antarctica. The information received ex
officio from contracting states, whether CPs or NCPS,
through the official channels has not been abundant. The
official documentation received deals essentially with
plans and programs in scientific research activities
rather than with the results thereof. However, it is our
impression that interested parties, scientists, etc. have
been able to obtain all the scientific material that they
need through other channels.
In this respect, the international cooperation within
SCAR plays a significant role. SCAR is open to all
countries actively engaged in antarctic research, to
scientists appointed by the International Council of
Scientific Unions (ICSU), of which SCAR is a component,
and to each of the ICSU-federated international scien-
tific unions. Canada, which is not a contracting party,
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319
took part in working groups and groups of specialists in
1982 and 1983. Thus, SCAR seems to serve admirably the
principle of freedom of scientific research, in particular
of making the results thereof freely available to inter-
ested parties.
The increasing interest in and concern about all
activities in Antarctica have prompted certain questions
that have been difficult to answer. In 1983, the Danish
Parliamentary Committee on Foreign Affairs asked certain
questions relating to seismic investigations by Japan,
Norway, and the United States in Antarctica, to the
French airstrip proposal for Pointe Geologie, and to the
environmental impact of bases in Antarctica. At the
time, the Danish authorities were not able to offer
entirely satisfactory replies.3
The question is whether the provisions of Articles III
and VII(5) of the treaty are sufficiently wide to guaran-
tee the availability of all relevant information on
activities in the Antarctic. The current interest and
concern seem in particular to focus on environmental
issues. The treaty system does not seem to contain
instruments likely to ensure satisfactory responses to
such concerns.
NCPs receive no official reports on the deliberations
during the meetings of CPs. Until fairly recently the
texts of the recommendations have been difficult to
obtain. After the eighth consultative meeting, in Oslo
in 1975, a collection of recommendations was issued. In
conjunction with the tenth consultative meeting, in
Washington in 1979, the U.S. Department of State brought
out a Handbook of Measures in Furtherance of the
Principles and Objectives of the Antarctic Treaty.
During the twelfth consultative meeting, the informa-
tion system was further improved. The Handbook of the
Antarctic Treaty (renamed) is now to include final reports
of consultative meetings. The NCPs also benefit from
these information measures. Furthermore, an NCP should,
as an observer, be entitled to make use of the new rules
concerning public availability of its own documentation
and that of other NCPs and CPs.
Inspection is an area that involves a certain dis-
crimination of NCPs and gives rise--at least in theory--
to some particular legal problems. Pursuant to Article
VII(1), only CPs are entitled to designate observers to
carry out inspection. Observers must be nationals of the
CPs that designate them. All areas of Antarctica,
including all ships at points of discharging or embarking
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320
cargoes or personnel in Antarctica, are to be open at all
time to inspection by any observer. I: practice, few
inspections of any sort are conducted. In principle,
ships of an NCP state may be inspected only by CP obser-
vers. As the rule is drafted, NCPs are not entitled to
conduct inspection, not even of their own ships.
A related problem, which has so far remained fairly
theoretical, is that of jurisdiction.
This issue, which
is intimately connected with the delicate problem of
sovereignty, was not properly solved at the Washington
conference in 1959.5 Article VIII of the treaty
provides that scientists and officially designated
observers, as well as their staffs, remain under the
jurisdiction of the countries of which they are nationals,
regardless of where they may be in Antarctica. This rule
applies to all contracting parties. However, it does not
apply, for instance, to the members of the crew of the
ship carrying a scientific expedition to Antarctica.
Furthermore, what would be the legal situation in the
case in which a Danish sailor were arrested in the
Antarctic Peninsula, where jurisdiction is contested. In
theory, at least, he might be subject to Argentine,
British, and Chilean law--but perhaps, according to the
treaty, not to Danish law. This situation, however, is
not peculiar to NCP citizens; it may arise also with
regard to CP nationals other than scientists and
observers.6
RIGHTS AND OBLIGATIONS OF NCPS UNDER THE TREATY
As stated in the Introduction, the term "contracting
states" also covers NCPs. In principle, CPs and NCPs as
contracting parties enjoy the same rights and are subject
to the same obligations under the Treaty. However, in
many respects the treaty has established a two-tiered
system of participation. Certain aspects of the differ-
ential system of rights and obligations under Article VII
in regard to inspection have already been dealt with
above. CPs also enjoy a privileged status under Article
XII concerning amendments and pursuant to Article XIII(1)
concerning accession.
By far the most important example of "privileged
status" is the fact that the day-to-day management of the
treaty system has been entrusted to the CPs. Until 1983,
NCPs were not even consulted.
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321
Article IX provides that the CPs meet periodically to
exchange information, to consult together on matters of
common interest pertaining to Antarctica, and to formu-
late, consider, and recommend to their governments
measures in furtherance of the principles and objectives
of the treaty. Among the categories of measures speci-
fically mentioned are those relating to questions of
facilitating scientific research and international
scientific cooperation, to the exercise of the rights of
inspection and jurisdiction, and to the preservation and
conservation of living resources in Antarctica. Any such
measures recommended by the representatives of CP meetings
to their governments become effective when approved by
all of the consultative parties.
So far 138 recommendations have been adopted and more
than 130 approved. NCPs have had no opportunity to influ-
ence the drafting of these recommendations. Conversely,
the recommendations are not legally binding on NCPs unless
expressly approved by them.
In view of this situation, in which different treaty
parties might be bound by different sets of rules, the
CPs in 1975, in Recommendation VIII-8, urged n the States
that have or will become Parties to the Antarctic Treaty
to approve the recommendations adopted at consultative
meetings." In 1977 the final report of the special CP
meeting emphasized that CPs might urge a state that con-
sidered itself entitled to CP status to make a declaration
of intent to approve the recommendations in force and
might also invite such a potential CP to consider approval
of the other recommendations.7
Certain issues have been made subject to separate
agreements negotiated under the authority of the treaty:
the 1972 Convention for the Conservation of Antarctic
Seals (Seals Convention) and the 1980 Convention on the
Conservation of Antarctic Marine Living Resources
(CCAMLR).
The Seals Convention is open for accession by states
invited with the consent of all parties. The CCAMLR is
open for accession by states interested in research or
harvesting activities related to antarctic marine living
resources and to certain regional economic integration
organizations (such as the European Economic Community).
Last but not least, the ongoing negotiations on the
future minerals regime of Antarctica have so far been
reserved to the CPs.
These features, in particular, must have been in the
minds of the critics of the Antarctic Treaty System during
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322
the 38th U.N. General Assembly debate, where terms such
as "exclusivity of the treaty system, Enhancement of
interests of the privileged fewer and the "secrecy" of
the meetings were frequently used.
One way of attempting to remedy this ~exclusivity" and
"secrecy" might be to modify the criterion for qualifying
as a CP. As noted above, Article IX(2) provides that
each contracting party that has acceded to the treaty be
entitled to participate in the consultative meetings
during such time as that contracting party "demonstrates
its interest in Antarctica by conducting substantial
scientific research activity there, such as the estab-
lishment of a scientific station or the dispatch of a
scientific expedition. n A recommendation adopted during
the special consultative meeting in July 1977 contains
the procedures giving effect to Article IX(2) (see
Appendix 22-A.):
Firstly, the criterion of Article IX(2) only
applies to acceding States, not to signatories.
Secondly, it may be asked whether the
criterion is reasonable measured by a yardstick of
the 1980s.
As stated by gilder, "This differential status [of CPs
and NCPs] is ostensibly related to a rational and
'neutral' criterion--demonstrated interest in Antarctica,
and any Party may in theory obtain consultative status by
engaging in 'substantial' activities in Antarctica. In
practice, however, many nations may not have sufficient
wealth or technical skill to mount and support such
activities. n8
Assuming that all interested nations possess the
necessary wealth and skill, it may even be questioned
whether the present criterion for qualifying as a CP is
likely to enhance--in a longer-term pers~ective--the
objectives and principles of the treaty. Indeed, in a
statement made by Lee Kimball on September 24, 1984,
before the subcommittee on Science, Technology and Space
of the U.S. Senate Committee on Commerce, Science and
Transportation, it is said, inter alla:
As long as the ticket to antarctic decision-
making remains something on the order of the
establishment of a scientific station or the
dispatch of a scientific expedition to Antarctica,
we can expect additional strains on the antarctic
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323
environment and its pristine value as more coun-
tries seek to meet this qualification. Growing
-
tourism and fishing efforts will increase conges-
tion and the potential for accidents in the area.
Kimball adds that the onslaught of antarctic minerals
development and supporting operations would add a whole
new dimension to the possibility of accidents and
cumulative environmental impacts in Antarctica.
Translated into the present context, an admission
ticket based on performance criteria might in certain
respects lead to situations that would raise serious
objections on environmental grounds.
In a reply to a question put by the Parliamentary
Committee on Foreign Relations of Denmark in February
1984, the Danish foreign minister stated, inter alla,
that it would be appropriate first to assess how the
newly established observer arrangement for NCPS is
functioning in practice before considering any attempt to
seek a modification of the criteria for qualifying as a
CP. Furthermore, it was stated that in view of the
unanimous opposition by CPs to amendment of the treaty,
any attempts in this regard would be counterproductive.
On the other hand, it must be recognized that the
minerals issue gives rise to specific considerations.
Luard observes that the treaty powers must recognize that
the situation today is by no means the same as it was 25
years ago: "A Treaty that functioned well when its main
purpose was to provide for a system of peaceful and
cooperative scientific research will not necessarily work
well for the quite different purpose of establishing a
viable minerals regime. nlO
Among the three broad measures discussed by Luard as
the means for fulfilling certain basic conditions, the
first is to maintain the existing treaty system and
establish a new minerals regime within it. 1 This
appears to be a reasonable approach.
Indeed, it seems necessary to make a proper distinc-
tion among separate issues: participation in the
Antarctic Treaty and in the regular CP meetings;
participation in the negotiations on the minerals regime;
and the question of participation in decision-making
under the future minerals regime.
There is no apparent need to change the rules on
participation in the regular and special CP meetings--
that is, to modify the criteria for qualifying as a
CP--in order to meet the increasing concern regarding
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324
participation in the minerals regime. This problem
should, in any case, be solved within the minerals regime
itself. It should, however, be ensured that all legiti-
mately interested states may participate in the negotia-
tions leading to this regime. An effective regime
t arts 1; —~ = ~ ~ ~ ~ ~ w _ _ .
-__ "~= Hen oy a large majority of the world
community. Otherwise, those outside the regime could
quite legally undertake mining activities.
The increasing interest in these negotiations in
particular, and in the management of the Antarctic in
general, should and could be met--at least as a first
step--by an appropriate observer-status arrangement in
the regular and special consultative meetings (see
below). Attempting to modify the criteria for qualifying
as a CP at this stage may be tantamount to opening the
whole Antarctic Treaty for revision with the inherent
risk of prejudicing the basic principles of the treaty
and present international cooperation on antarctic
issues. There is no reason to destroy the successful
features of the Antarctic Treaty in order to find a
satisfactory solution to the novel problems concerning a
future minerals regime.
The CCAMLR, which was negotiated under the provisions
of the Antarctic Treaty, has in fact established its own
participation rules which differ from those of the
Antarctic Treaty. Membership in the convention is open
to states--or competent regional organizations--
interested in research or harvesting activities related
to antarctic marine living resources. Participation in
decision-making meetings in the commission established by
the convention is open to all original signatories that
are parties and to acceding parties during such time as
they are engaged in antarctic living-resources research
or harvesting.l2 The convention has also established
its own observer regime.
Mentioning CCAMLR as a precedent does not necessarily
mean that it is a perfect one in all respects. Criticisms
have been voiced on two important points in particular.
First, it has been questioned on what grounds the CPs
felt entitled to negotiate in secret a treaty regarding
high seas resources and then to present the document to
the rest of the world to endorse a fait accompli.
Second, the criteria for accession and for participation
by acceding states in the decision-making do not apply to
the signatories. Even if some of these do not carry out
any fishing activities in antarctic waters, they remain
permanent members of the decision-making commission.
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325
Furthermore, the relationship of the CCAMLR to the
Antarctic Treaty, which specifically includes the high
seas, and to the International Whaling Commission and the
Seals Convention has also been criticized.]
A minerals regime will be far more difficult to
negotiate than the regime on the living resources. It is
to be hoped that the lessons from the CCAMLR will be kept
in mind during the continuing minerals negotiations.
THE OBSERVER ISSUE
The Antarctic Treaty contains no provisions concerning
observers. As far as can be ascertained, the subject was
not even discussed at the Washington conference. This
may in part be explained by the fact that the treaty does
not establish any separate international organization nor
for that matter any kind of permanent secretariat.
The observer issue was discussed among the CPs in 1981
without success. A consensus was reached in the spring
of 1983, perhaps as a first reaction to emerging inter-
national criticism of the secluded character of the
Antarctic Treaty System. During the 37th U.N. General
Assembly, the Prime Minister of Malaysia in his speech on
September 29, 1982, argued for U.N. action on Antarctica.
The Malaysian statement during the signing ceremony of
the Law of the Sea Convention at Montego Bay in December
1982 echoed the same theme. At their seventh summit
conference in New Delhi, March 7-12, 1983, the heads of
state of the nonaligned countries considered that in view
of the increasing international interest in the Antarctic,
the U.N. should undertake a comprehensive study of the
subject.
At the preparatory meeting for the twelfth CP meeting,
in April 1983, the CPs decided to invite the NCPs to
attend the twelfth biennial CP meeting, in Canberra in
September 1983, as observers. All NCPs--except Czecho-
slovakia--were represented at the meeting in Canberra.
In their opening statements the CPs welcomed the NCPS,
which in turn expressed their appreciation for the
invitation.
The new observers were confronted with certain diffi-
culties that made their first attendance somewhat cumber-
some. They lacked background information from the
preparatory meeting. Moreover, the fact that the session
was divided into open plenary meetings, closed meetings
of heads of CP delegations, and working groups made it
difficult to follow the course of the deliberations.
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326
On request to the chairman, the NCP observers obtained
admission to the working group on environmental questions.
In practice, observers were not able to participate in a
major part of the final discussions, which took place in
closed meetings of heads of CP delegations. Statements
by observers were not allowed during the plenary debate
on the final report nor during the discussions on pro-
cedures relating to the negotiation of the minerals
regime. Observers could speak on the question of rules
of procedures concerning their status, but the actual
negotiations on this issue were conducted in closed
meetings.
The CPs accepted the inclusion in the final report of
a formal statement made in common by the NCPs (See
Appendix 22-B). In this statement, the NCPs noted with
satisfaction that the CPs were receptive to more meaning-
ful and substantive participation by the NCPs, which
would undoubtedly contribute to strengthening the system.
They also stressed the need for prior background informa-
tion, which would facilitate their participation in the
various antarctic meetings.
As far as is known, the draft rules of procedure on
observers considered by the CPs in Canberra provide that
observers may speak freely, receive documentation, submit
information documents, and attend all plenary and formal
committee and working group meetings. They may not take
part in decision-making.14
The CP meeting in Canberra decided to invite the NCPs
as observers to their-next meeting, in Brussels in 1985,
and to the preceding preparatory meeting. It was also
agreed to consider, on a case-by-case basis, inviting as
observers at future CP meetings representatives of inter-
national organizations having a scientific or technical
interest in Antarctica.
During the special consultative meeting on the minerals
regime in Tokyo in May 1984, the NCPS were kept informed
at regular intervals. It was decided to invite NCPs as
observers to future meetings on this theme. Their status
will be the same as that enjoyed in the regular CP
meetings.
Some CPs include nongovernmental organization repre-
sentatives in their delegations to CP meetings. In
regular meetings, the United States has followed this
practice since 1977; Australia did so for the first time
in 1983. In special meetings on the minerals regime, the
United States has done it since 1982, Australia since
1983, and New Zealand since 1984. The Danish observer
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327
delegation to the minerals regime meeting in Rio de
Janeiro in February-March 1985 included a representative
from a nongovernmental organization.
ANTARCTICA AND THE U . N. . GENERAL ASSEMBLY
The inclusion of the question of Antarctica on the agenda
of the U.N. General Assembly was viewed with much sympathy
by the Danish government. In its reply to the U.N.
Secretary-General's note verbale made pursuant to
Resolution 38/77, it was stated that the Danish
government--recognizing the legitimate interest of the
world community--was
prepared to support the efforts aiming at
introducing greater openness in the international
cooperation concerning Antarctica, provided that
neither the basic principles of the Treaty nor the
positive results of the present international
cooperation are jeopardized.
The Danish government furthermore recalled that the
Antarctic Treaty is in conformity with the principles and
purposes of the U.N. Charter and that it is open for
accession by all members of the United Nations. In the
view of the Danish government, the international
cooperation concerning the Antarctic should be pursued
within the framework of the treaty. However,
accession to the Treaty becomes meaningful only if
the acceding parties are entitled to participate
in the international antarctic cooperation in a
manner which corresponds to the obligations they
have undertaken according to the Treaty.
The Danish government therefore welcomed the invita-
tions to participate as observers in the future regular
CP meetings and in the special consultative meetings on
the minerals regime. Finally the hope was expressed that
these moves
may lead to a generally acceptable permanent
arrangement which will ensure that NCPS may
participate fully and effectively in the entire
range of international cooperation and management
concerning the Antarctic. Progress in this
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328
direction will doubtless serve to rally the ample
support for the Treaty which appears imperative in
order to preserve it as the international
framework for cooperation in Antarctica for the
benefit and interest of mankind as a whole.
CONCLUDING REMARKS
The final words of the Danish contribution to the U.N.
study reflect what others have more elegantly labeled
"external accommodations or "accountability": "It is up
to those who would prefer to build on the Antarctic
Treaty system to determine how far they are willing to go
in the area of accountability in lieu of being confronted
by major institutional changes. nl5
The major--but not the only--challenge to the treaty
system is the minerals issue.
Whether in the light of these challenges the new
observer arrangement will serve the purpose of increased
accountability remains to be seen. The comment has been
made that since decisions in CP meetings are determined
not by voting but rather by discussion and consultation
leading to consensus, the influence of NCP observers on
the decision-making process need not be far different
from that of the CPs.l6
This, of course, is to be hoped. However, if owing to
such increased incentives the total membership of the
Antarctic Treaty is substantially increased, the current
management mechanisms may need to be further developed.
Holding meetings among representatives of 20 or 30 coun-
tries is one thing; organizing meetings of representatives
from 60 countries or more is a more complex task. The
question of the establishment of a more permanent infra-
structure should therefore be considered an urgent
matter.17
Together with the other NCPs, Denmark will be prepared
to contribute as constructively as possible to the devel-
opment of international cooperation under the treaty
system. Denmark and the two other Nordic NCP countries,
Finland and Sweden, all have polar regions and a long-
standing interest mainly in the Arctic region. Denmark
has a long experience in the area of exploration and
exploitation of minerals in polar regions (Greenland).
Although this experience cannot, of course, be applied
automatically to all aspects of similar issues in
Antarctica, it may prove to be of some value, for
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329
instance, for comparative purposes. One aspect that most
certainly will be strongly emphasized is the need for
strict safeguards aimed at protection of the sensitive
antarctic environment. In this regard the words from the
Swedish contribution to the study of the U.N. Secretary-
General seem particularly pertinent:
In view of the great importance of Antarctica to
global climate and oceanic conditions in general
it is clear that disturbances in the antarctic
environment can have consequences that are both
unpredictable and hazardous. These important
problems have to be confronted with great
seriousness and full openness.
In elaborating on his written presentation, Bruckner
-
noted that it is difficult to identify any objective
criteria used for the determination of CP status and
wondered whether the qualification cited in Article IX(2)
of the Antarctic Treaty is reasonable today. Moreover,
it might even be discriminatory, since not all states can
afford scientific expeditions.
He noted that Denmark has a history of demonstrated
interest in Antarctica by virtue of its involvement in
ship transport, construction work, and scientific research
there, but the first two types of activity do not seem to
be considered in the determination of CP status.
Bruckner added that if CP status were to be relevant
to the minerals regime, any of three changes in that
status could make it more acceptable to those outside:
modify the criteria, interpret them more flexibly or
reduce the differences between CP and NCP status. He did
not see the need to modify the criteria at this time, but
he could envisage the second or third options or a com-
bination of the two.
In this context, he noted that the Antarctic Treaty in
effect forces countries to allocate scarce funds for
scientific research in a manner that is not necessarily
rational. He suggested that it would make sense for a
number of countries to pool resources for antarctic
science and spread the costs out over several years. The
question that remained, however, was whether at the end
of that period the contribution of each country would be
considered sufficient for each to qualify for consultative
status. On the other hand, if the difference between CP
and NCP status disappeared, this would reduce the pressure
on governments to engage in questionable scientific
activities.
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330
With respect to the observer role of the nonconsulta-
tive states in antarctic meetings, Bruckner noted that
"participation short of the right to take part in
decision-making" is not a fixed concept. Whatever rules
of procedure had been adopted in Canberra in September
1983 to govern NCP participation had not been conveyed to
Denmark and to other NCPS by January 1985. In his view,
the effect of NCP participation should be to allow the
NCPs to exercise reasonable influence on decisions, to
allow them to be heard and have their views taken into
account, and to allow them to submit their views orally
and in writing, whether as proposals or suggestions. He
also believed that it would be useful if "heads-of-
delegation meetings could include representatives from
both consultative and nonconsultative states. In the
end, he believed that the role of observers in practice
will depend on the quality and constructive nature of
their contributions rather than on the application to the
letter of the observer rules of participation.
In conclusion, he noted that in addition to the
development of the role of nonconsultative states as a
means to increase support for the Antarctic Treaty
System, it will be important to increase the flow of
information on antarctic affairs and make it more easily
accessible, to consider the contributions that members of
the U.N. family--such as the U.N. Environment Program--
could make to the system, and to develop means to take
account of the views of the concerned public.
NOTES
The J. Lauritzen polar vessels have throughout the
years carried Australian, French, British, Belgian,
and Dutch scientific expeditions and their supplies
to the antarctic continent and returned with parties
who had wintered there; see Thorsoe, S. 1984. J.
Lauritzen 1884-1984. World Ship Society, 1984.
Approximately 25 localities in the Antarctic have
been named after J. Lauritzen ships or members of
their crews. The Danish company A. E. Sorensen has
also carried expeditions to Antarctica. The German
subsidiary company of Christiani & Nielsen has
carried out construction and other work in
connection with the establishment of the scientific
station and other activities of the Federal Republic
of Germany.
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331
2. See Frivagten, November, 1965.
3. A similar situation arose in the Belgian
parliament. See question No. 413 from Mr. Daras of
April 20, 1984 (Brussels).
4. See The Future of the Antarctic - Background for a
Second U.N. Debate. Greenpeace International,
October 22, 1984, p. 8.
5. See Quigg, P.W. 1983. A Pole Apart. The Emerging
Issue of Antarctica, New Press, McGraw-Hill Book
Company (New York); 1983, p. 150.
6. Quigg, op. cit., p. 151.
7. Quigg, op. cit., p. 152. Denmark has not officially
approved any CP recommendation.
8. See gilder, R.B. 1982. The Present Legal and
Political Situation in Antarctica. In J.I. Charney,
ed. The New Nationalism and the Use of Common
Spaces. Allanheld, Osmun (Totowa, N.J.), 1982, p.
173. Belgium and Norway maintain no permanent
scientific stations in the Antarctic. Belgium had
undertaken little scientific research work for some
time. Some new CPs had undertaken a rather limited
amount of independent scientific work before being
admitted.
9. According to Quigg, op. cit., p. 148, one of the
most time-consuming matters at the Washington
conference was conditions and procedures for new
consultative memberships.
10. See Luard, E. 1984. Who owns the Antarctic?
Foreign Affairs, p. 1184.
11. The two subsequent measures related more
specifically to the minerals regime, which as such
is not a subject for discussion in this chapter.
12. The CCAMLR has now been ratified by the 15 original
signatories. All are members of the decision-making
commission, together with the European Economic
Community, which acceded in 1982. Sweden, Spain,
India, the Republic of Korea, and Uruguay have also
acceded to the convention and Brazil plans to.
13. See Quigg, op. cit., pp. 189-193.
14. See Report of the Twelfth Consultative Meeting,
Polar Record 22(136):109.
15. See paper delivered by L. Kimball in Antarctic
Politics and Marine Resources: Critical Choices for
the 1980s. 1985. Center for Ocean Management
Studies, University of Rhode Island (Kingston,
R.I.), 1985, p. 247. See also Beck, P.J., The
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332
United Nations and Antarctica. Polar Record,
22:137-144; Sollie, F. Polar Politics: Old Games
in New Territories, or New Patterns in Political
Development, p. 26: "Here, mutual accommodation
clearly is needed in that the privileged few must
adapt the operation of the Treaty and the regime
for resources to take all due account of the
broader international interest, while those who
emphasize the doctrine of the common heritage must
adjust their demands to established rights and to
actual possibilities for development.
16. See Report on Antarctica, November 1, 1984.
International Institute for Environment and
Development (Washington, D.C.), 1984, p. 6.
17. See Report of the Twelfth Consultative Meeting,
Polar Record 22(136):108.
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333
APPENDIX 22-A:
EXTRACT FROM THE FINAL REPORT OF THE
F IRST SPECIAL ANTARCTIC TREATY CONSULTATIVE MEETING
"The Representatives of the Consultative Parties (Argen-
tina, Australia, Belgium, Chile, France, Japan, New
Zealand, Norway, the Republic of South Africa, the Union
of Soviet Socialist Republics, the United Kingdom of
Great Britain and Northern Ireland, and the United States
of America) met in London on 25, 27 and 29 July 1977.
~ m e Meeting considered in Plenary Session the ques-
tion of procedures to be adopted to give effect to
Article IX, paragraph 2, of the Antarctic Treaty ... and
decided as follows:
n The Representatives of the Consultative Parties
Recognizing the need for a procedure of consultation to
be adopted between them in the event that another State,
having acceded to the Antarctic Treaty, should notify the
Depositary Government that it considers it is entitled to
appoint Representatives to participate in Antarctic
Treaty Consultative Meetings;
Recalling that Recommendations which became effective
in accordance with Article IX of the Treaty are, in terms
of that Article 'measures in furtherance of the principles
and objectives of the Treaty';
"Recalling their obligation under Article X of the
Antarctic Treaty to exert appropriate efforts, consistent
with the Charter of the U.N., to the end that no one
engages in an activity in Antarctica contrary to the
or inciples or purposes of the Treaty;
"Recognizing that the entitlement of an acceding State
to appoint Representatives to participate in Antarctic
Treaty Consultative Meetings under Article IX, paragraph
2, of the Treaty depends on such a State demonstrating
its interest in Antarctica by conducting substantial
scientific research activities there, such as the estab-
lishment of a scientific station or the dispatch of a
scientific expedition;
"Unanimously decide:
1. An acceding State which considers itself
entitled to appoint Representatives in accordance
with Article IX, paragraph 2, shall notify the
Depositary Government for the Antarctic Treaty of
this view and shall provide information concerning
its activities in the Antarctic, in particular the
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334
content and objectives of its scientific programme.
The Depositary Government shall forthwith communi-
cate for evaluation the foregoing notification and
information to all other Consultative Parties.
Consultative Parties, in exercising the
obligation placed on them by Article X of the
Treaty, shall examine the information about its
activities supplied by such an acceding State, may
conduct any appropriate enquiries (including the
exercising of their right of inspection in
accordance with Article VII of the Treaty) and
may, through the Depositary Government, urge such
a State to make a declaration of intent to approve
the Recommendations adopted at Consultative
Meetings in pursuance of the Treaty and subse-
quently approved by all the Contracting Parties
whose Representatives were entitled to participate
in those meetings. Consultative Parties may,
through the Depositary Government, invite the
acceding State to consider approval of the other
Recommendations.
-. As soon as possible, but in any case within 12
months of the date of the Communication by the
Depositary Government to the other Consultative
Parties referred to in paragraph 1 above, the
Government which is to host the next Consultative
Meeting shall convene a Special Consultative
Meeting in order that it may determine, on the
basis of all information available to it, whether
to acknowledge that the acceding state in question
has met the requirements of Article IX, paragraph
2 of the Antarctic Treaty. The adequate prepara-
tion of the Special Consultative Meeting shall be
undertaken through diplomatic channels.
4. With the agreements of the Representatives of
all the Consultative Parties, the Special Consu~ta-
tive Meeting shall record this acknowledgment in
its report. The acceding State shall be so
notified by the host Government of the Special
Consultative Meeting.
5. The procedure hereby established may be
modified only by a unanimous decision of
Consultative Parties. n
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335
APPENDIX 22-B:
STATEMENT OF NONCONSULTATIVE PARTIES
"The delegations of the Nonconsultative Parties to the
Antarctic Treaty having been present at the Twelfth
Consultative Meeting express appreciation to the Govern-
ment of Australia and to the other Consultative Parties
at having been invited to this Meeting.
"Our presence reflects the interest of our Governments
in the development of the antarctic system and our
willingness to contribute to the maintenance and further
development of the principles and objectives of the
Antarctic Treaty.
"We all recognize the achievements of the Treaty, for
example with regard to cooperation in the field of scien-
tific research, the protection of the environment, and
demilitarization. We noted with satisfaction the recog-
nition by the Consultative Parties of the difference in
position between the Nonconsultative Party and observers.
"We have noted, furthermore, with satisfaction that
the Consultative Parties are receptive to a more meaning-
ful and substantive participation of Nonconsultative
Parties, which would undoubtedly contribute to strengthen-
ing the system. Likewise the delegations of the Noncon-
sultative Parties fully endorse statements of Consultative
Parties which have been made during the Twelfth Consulta-
tive Meeting regarding the importance of the availability
of information to the Nonconsultative Parties so as to
facilitate their participation in the various antarctic
meetings.
"We believe that the participation of Nonconsultative
Parties in the various activities of the antarctic system
is important for the strengthening of the system and for
the contribution thereto by the Nonconsultative States.
Owe request that this statement be attached to the
Final Report of the Twelfth Consultative Meeting.
"Canberra, September 27, 1983."
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Representative terms from entire chapter:
minerals regime
