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OCR for page 33
3.
Juridical Nature of the 1959 Treaty
System
Yuri M. Rybakov
December 1984 marked 25 years since the signing of one of
the most significant international documents of our time--
the Antarctic Treaty. Preceding that event was a long era
of search, discovery, and the beginning of the exploration
of that southern-continent.
There had been earlier attempts at theoretically
predicting Antarctica's existence and discovering it. As
early as 1761 the great Russian scientist, Lomonosov, put
forward a bold hypothesis, which later proved to be
basically correct, about the possible existence, around
the South Pole, of islands and a vast body of land mantled
in thick and perennial snows. Later seafarers made numer-
ous attempts to find the southern continent, but for a
long time all of them failed.
Today, it is an indisputable fact Russian navigators
discovered Antarctica and thus launched an era of scien-
tific research and exploration of the new land. The
first Russian Antarctic expedition of 1819-1821, was
headed by naval officers Bellingshausen and Lazarev. It
belongs in the history of great geographical discoveries,
and the scientific research carried out by the expedition
was also of importance. In recognition of the Russian
navigators' accomplishments, one of the South Pole seas
was named after Bellingshausen.
These Russian discoveries and the first scientific
research carried out in the Antarctic attracted the
attention of many countries to the region, which went
beyond purely scientific and exploratory interests. In
the early twentieth century a number of states sought a
territorial division of Antarctica. Claims were made to
several large areas of the continent, covering up to four
fifths of its territory. Moreover, three of the claimed
areas overlapped, which produced sharp tensions among the
33
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34
claiming states, leading to the demonstration of military
force.
These territorial claims were declared unilaterally,
and many states, including the United States, Japan,
Belgium, the Polish People's Republic, and Brazil, did
not accept them. Nor has the USSR ever recognized any
territorial claims, especially because it was the Russian
sailors who first discovered Antarctica. The USSR'S
position of principle on this issue is reflected in
exchanges of notes and other documents. For example, in
response to Norway's statement claiming sovereignty over
Peter I island, discovered by the Russian expedition of
Bellingshausen and Lasarev, the Soviet government in a
note dated January 27, 1939, informed the government of
Norway that it did not recognize the Norwegian claim to
that island and reserved its position concerning state
sovereignty over the lands discovered by Russian
navigators.
The end of World War II witnessed a dramatic revival
of interest in Antarctica. From July 1957, to December
1958, twelve countries participated in an extensive
scientific research program carried out in the region
within the framework of the International Geophysical
Year IGY). Most of the 12 states, Argentina, Australia,
Belgium, Chile, France, Japan, New Zealand, Norway, South
Africa, the USSR, the United Kingdom, and the United
States organized expeditions to Antarctica, and together
they established 40 scientific research stations. The
Soviet Union established six stations, and Soviet scien-
tists made a major contribution to antarctic science.
They conducted large-scale exploratory work in the least
accessible areas of the continent, in particular in the
area of the geomagnetic pole. The IGY was a major global
scientific endeavor, and the routine antarctic observa-
tions conducted during it continue to this day.
Broad international cooperation in exploring Antarctica
within the IGY framework in the 1950s served as an impetus
to the conclusion of an appropriate international legal
agreement in Antarctica. The position of principle of
the Soviet Union as regards the drafting of such an
agreement was reflected in particular in a note sent to
~ _ , ,
.
_
the U.S. Department of State on May 2, 1958. In the
opinion of the USSR, a future agreement would have to be
based on the principles of using Antarctica exclusively
for peaceful purposes and of freedom of scientific
research in the entire region. The note recalled the
outstanding achievements of Russian explorers in
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35
discovering Antarctica and emphasized that the Soviet
Union reserved all the rights arising from discoveries
and research done by Russian navigators and scientists,
including the right to make appropriate territorial
claims in Antarctica.
In 1958 and 1959, preliminary talks were held in
Washington, D.C., with active participation of the USSR,
which produced the international Antarctic Treaty that
was signed on December 1, 1959, and entered into force on
June 23, 1961. The drafting and conclusion of the
Antarctic Treaty were memorable international events. In
its 1984 message of greetings to the members of the
antarctic expeditions of the countries that had taken
part in drafting the treaty, the Soviet government noted
that the treaty would contribute to the further develop-
ment of cooperation among states in exploring the region
and could provide a good example for settling inter-
national problems in the interests of universal peace.
At the 1960 Meeting of the Political Consultative
Committee, the states party to the Warsaw Pact described
the document as an important agreement concerning the
peaceful use of Antarctica.
The Antarctic Treaty is open for accession by any
state. At present, more than 30 states, big and small,
situated on every continent of our planet and represent-
ing different social and economic systems, have become
parties to the treaty; they include the USSR, the German
Democratic Republic, Poland, Romania, the United States,
Czechoslovakia, the United Kingdom, Argentina, Brazil,
Norway, Peru, Papua New Guinea, France, the Federal
Republic of Germany, and Japan. India and the Peoples
Republic of China acceded to the treaty in 1983, and
Hungary, Cuba, Finland, and Sweden did so in 1984.
PEACEFUL USE
The Soviet Union attaches great importance to the
Antarctic Treaty as an international legal instrument
aimed at curbing the arms race. In accordance with the
treaty, a vast continent together with its neighboring
islands and adjacent seas is placed totally outside the
sphere of military preparations of any form whatsoever,
including nuclear-weapon tests. For the first time in
the history of international relations and international
law, such a region has been established by treaty as a
zone for peaceful research and scientific cooperation
among states.
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36
Article 1 of the treaty, elaborated with the active
participation of the USSR, envisages that Antarctica will
be used for peaceful purposes only. Any measures of a
military nature, such as the establishment of military
bases and fortifications, the carrying out of military
maneuvers, and the testing of any type of weapon, are
prohibited in the region.
According to the Antarctic Treaty, its provisions apply
to "the area south of 60° South Latitude, including all
ice shelves, but nothing in the present Treaty shall
prejudice or in any way affect the rights, or the exercise
of the rights, of any State under international law with
regard to the high seas within that area." (Article VI)
Of particular importance today are the provisions of
the treaty prohibiting any nuclear explosions and the
disposal of radioactive waste material in Antarctica
(Article V).
Originally there were proposals to permit
nuclear explosions subject to prior notification of all
parties to the treaty and consultation with them. Adop-
tion of these proposals would have been tantamount to the
legislation of nuclear-weapon tests, because technically
it is difficult to distinguish peaceful explosions from
military blasts. More'over, nuclear-weapon tests in
Antarctica would irreparably damage its unique environment
and could lead to unpredictable harmful consequences on a
global scale. It was due to the tireless efforts of the
Soviet Union that prohibition of any nuclear explosions,
both military and peaceful, and of the disposal of
nuclear waste was embodied in Article V of the treaty.
The totality of the provisions of Articles I and V,
prohibiting in particular any measures of a military
nature and any nuclear explosions, bestow on Antarctica a
status not only of a demilitarized area of the globe but,
for the first time in history, of a zone free from nuclear
weapons. This, of course, does not preclude completely
the possibility of using nuclear energy, such as the use
of nuclear power stations.
Thus the nuclear-free zone and the zone of peace
created by the Antarctic Treaty serve as good examples
for concluding similar agreements with respect to other
regions of our planet and around it. For instance, the
Tlatelolco Treaty was signed in 1967. Under that treaty,
the Latin American continent became, de jure and de
facto a zone free from nuclear weapons.
In the present-day international situation, character-
ized by heightened tensions and a growing threat of
nuclear war with all its disastrous consequences, the
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37
de-escalation of military presence and the creation of
nuclear-weapon-free zones and zones of peace in various
regions of the globe is acquiring special significance.
Resolutely opposing militarization of ocean expanses, the
Soviet Union is in favor of the largest possible part of
the world ocean becoming a zone of peace in the near
-
future. In particular, the Soviet Union supports the
proposal to create such a zone in the Indian Ocean, a
_ . _
vast geographical region directly adjoining Antarctica
and of exceptional importance for world navigation.
Turning the Indian Ocean into a zone of peace corresponds
to the aspirations of a majority of states in the region,
which prefer lowering the level of military activity and
dismantling all foreign bases in the area.
SCIENTIFIC INVESTIGATION
The principle of freedom of scientific investigation in
Antarctica embodied in Article II of the Antarctic Treaty
is highly important. For more than 20 years now it has
served as a basis for successfully developing fruitful
international cooperation in this inclement and almost
inaccessible region of the world. The Antarctic Treaty
is rightfully considered to be a unique example of
international cooperation among states and with inter-
national organizations.
Any state that is a party to the treaty can benefit
from scientific data and information obtained by the
antarctic expeditions and permanent scientific stations.
Even now this information is of considerable practical
value for the advancement of knowledge in various fields
and for a better understanding of the phenomena and
processes taking place on our planet.
is in the interest of all mankind.
~ This undoubtedly
The signing of the Antarctic Treaty became an important
and effective means to prevent the occurrence of disputes,
tensions, and conflicts between states in connection with
previously made or potential territorial claims in the
region. The 1959 treaty freezes the territorial claims
(Article IV).
No less important is the treaty's role in preventing
the spread to the Antarctic of crisis situations arising
in regions that are in the immediate vicinity of the
sixth continent. As practical experience has shown, the
1959 treaty serves as a reliable barrier against extending
hostilities to Antarctica and thereby violating its status
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38
as a zone of peace. This was borne out by the situation
which developed over the Falkland (Malvinas) Islands in
1982.
INSPECTION
In order to promote its objectives and ensure the obser-
vance of its provisions, the Antarctic Treaty provides
for the possibility of carrying out inspections (Article
VII). Each of the consultative parties can designate
observers who have complete freedom of access at any time
to any or all areas of Antarctica, including all stations,
installations, and equipment within those areas. Ships
and aircraft at points of discharging or embarking cargoes
in Antarctica are also open to inspection.
CONSULTATIVE MEETINGS
In accordance with established international practice,
the fulfillment of the provisions of a given international
agreement as well as the control over compliance with
them and the coordination of states' efforts to translate
them into reality are entrusted, as a rule, to a certain
body or mechanism, the creation of which is envisaged in
such an agreement. Under the Antarctic Treaty, the mech-
anism in question is the consultative meeting of states
that are parties to the treaty.
Under Article IX, the right to participate in con-
sultative meetings belongs to the original contracting
parties to the treaty as well as to the contracting
parties that conduct substantial scientific research
activity in Antarctica, establishing scientific stations
and dispatching scientific expeditions there. The latter
parties are entitled to participate in the meetings during
such time as they demonstrate their interest in research
in Antarctica.
After the establishment in 1977 of a permanent scien-
tific station named Henrys Arctowski, n Poland became a
consultative party. In 1981, when the station "George
van Normaier~ became operational, the Federal Republic of
Germany also obtained this right. In September 1983,
India and Brazil, which set up their scientific stations
in Antarctica, acquired consultative status. Thus, at
present more than half of the parties to the treaty--16
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39
states--are consultative parties; practice demonstrates
that existing procedures envisage real possibilities for
any state acceding to the Antarctic Treaty to obtain
consultative status.
Consultative meetings deal with matters related to
governing the activities of states in Antarctica, includ-
ing its use for peaceful purposes only, the undertaking
to facilitate scientific research and international
scientific cooperation in the process of studying the
continent, the exercise of the rights of inspection
there, and the preservation and conservation of living
resources.
As a result of discussions at the consultative
meetings, the parties adopt recommendations, which are
subject to approval by all states taking part in their
elaboration. Thereafter they become standard-setting
provisions, building on and complementing the articles of
the Antarctic Treaty.
One of the fundamental provisions of the internal
regulation of consultative meetings--the Rules of
Procedure--is the rule under which the adoption of
recommendations requires the unanimous approval by all
states participating in the meeting.
The principle of consensus as a method of elaborating
and adopting decisions has proved to be effective and
efficient. It is of great importance for all consultative
parties and reflects the specific nature of regulating
the problems of Antarctica in terms of international
law. The principle of consensus used in consultative
meetings actually means that no decision may be adopted
unless it suits every party. This, in turn, not only
creates a businesslike atmosphere during the discussion
of various issues but it also guarantees the elaboration
of well-balanced recommendations and decisions, which
reflect the opinions and correspond to the interests of
all states participating in consultative meetings.
The additions to the Rules of Procedure adopted by the
twelfth consultative meeting, held in September 1983 in
Canberra, are of great importance. They determine that
the parties to the treaty that do not have consultative
status may participate in consultative meetings as
observers. Participation of observers in the meetings
convened within the framework of the treaty testifies to
the open nature of such meetings, the goodwill of the
consultative parties and their desire to show the inter-
national community the positive nature of the recommenda-
tions worked out in the meetings for the benefit of all
mankind.
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40
RECOMMENDATIONS
Since the Antarctic Treaty's entry into force, 12 con-
sultative meetings have been held, which have adopted more
than 100 different recommendations. The recommendations
relate to humans' multifaceted activities in Antarctica.
In particular, they regulate questions of radio and tele-
communications, tourism and nongovernmental expeditions,
information exchange, use of radioisotopes, designation
of specially protected areas, use of scientific research
rockets, introduction of animals and plants for laboratory
research, cooperation in transport, human impact on the
antarctic environment, and many others.
Taking into account the unique antarctic environment
and its highly sensitive and fragile fauna and flora, the
third consultative meeting held in Brussels in 1964
adopted the Agreed Measures for the Conservation of
Antarctic Fauna and Flora (Recommendation III-8).
Under Article VI of the Agreed Measures, it is pro-
hibited within the Antarctic Treaty area to kill, injure,
or chase any of the native mammals or birds without
special permission. Appropriate measures should be
adopted with a view to minimizing any harmful inter-
ference with normal conditions for mammals and birds.
this context, "harmful interference" means: allowing
dogs to run free; flying helicopters or other aircraft in
a manner that would unnecessarily disturb birds and seal
concentrations; use of explosives or discharge of fire-
arms (Article VII). The Aareed M"A.~]r-C ~1 ~^ I;
obligations regarding measures to reduce water pollution
along the coasts and ice shelves, provide regulations for
the introduction and keeping of animals and plants in
Antarctica, and establish precautions against accidental
introduction of parasites and disease into Antarctica.
Bearing in mind the increase over recent years in the
number of nongovernmental expeditions to the Antarctic
Treaty area and the number of accidents resulting there-
from, the consultative meetings give careful consideration
to the impact of tourism and adopt appropriate recommenda-
tions. In this context, great emphasis has been placed
on the advance exchange of information on planned
activities.
It has traditionally been a principle of antarctic
activities to render every possible assistance to
antarctic expeditions in emergency circumstances.
Unoccupied buildings and refuges exist there that can be
used by any expedition in case of an accident.
_ ~ ~ ~ & it, ~ _ ~ &
In
However,
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41
in such cases, the authorities that maintain the building
or the refuge must be notified of the manner in which
those facilities were used. A manual has been drawn up
for tourists visiting Antarctica, focusing particularly
on measures to preserve the unique environment of the
region.
The consultative meetings have also adopted a pattern
for information exchange carried out annually before
November 30. The information thus exchanged includes the
timing of expeditions; routes, types, and equipment of
vessels, aircraft, and other means of transportation; the
names and positions of bases and support stations; the
names of persons in charge of those bases; the functions,
numbers, and specialties of station personnel as well as
the means of rescue available in case of an accident
(medical and transportation services and refuges) together
with other data and characteristics. The information
provided also covers the intention to use radiosondes and
research rockets (including geographical coordinates of
the place of launching, the direction of launching, the
planned maximum altitude, and the purpose and details of
the research program).
Judging by practical experience, all the recommenda-
tions adopted by the consultative meetings have an
important role in further regulating the antarctic
activities of states.
They contribute to setting up,
developing, and deepening mutually beneficial cooperation
in this area of our planet characterized by exacting
conditions and difficulty of access on the one hand and
extreme vulnerability on the other.
ADDITIONAL CONVENTIONS
In 1978, the Convention for the Conservation of Antarctic
Seals (Seals Convention) was worked out within the frame-
work of the consultative meetings. It provides inter-
national legal protection for this important species of
antarctic fauna, which was almost exterminated at one
time.
Further efforts by the consultative parties led them
to the formulation and adoption in 1980 of the Convention
on the Conservation of Antarctic Marine Living Resources
(CCAMLR). Its main objective is to ensure conservation
and rational use of marine living organisms to the south
of the so-called antarctic convergence line. This line,
sometimes referred to as the antarctic polar front, is a
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42
composite geophysical border where warm northern waters
mix with cold southern waters. This accounts for their
high biological productivity.
The CCAMLR is open for accession by any state. At the
end of 1984, its membership included 15 states, the USSR
being one of them, and the European Economic Community
(EEC). Sweden, Spain, Uruguay, the Republic of Korea, and
India acceded to it in 1984-1985, and Brazil has initiated
the process of doing so. The main working bodies estab-
lished under it are the Commission on the Conservation of
Antarctic Marine Living Resources, the Scientific Commit-
tee and the secretariat. The commission's headquarters
is located in the city of Hobart on the Australian island
of Tasmania. Since the convention's entry into force in
1982, annual sessions of the commission and the scientific
committee have been held to work out provisions concern-
ing the commission's secretariat staff, financial regula-
tions and rules of procedures as well as the headquarters
agreement and certain other documents.
It must be noted that under Article XII of the CCAMLR,
the commission's decisions on matters of substance, like
the recommendations of the consultative meetings, are
adopted by consensus. Using this method, the commission
has already approved an interim agreement between the
government of Australia and the commission regarding its
privileges and immunities, the budget of the commission,
a procedure for appointing an executive secretary, and
the commission's financial regulations.
Though it came into force only recently, the CCAMLR
has already proved to be an effective instrument of
cooperation among states concerned in the conservation,
rational use, and study of antarctic marine living
resources. This mechanism for international cooperation
in the study and rational use of marine living resources
in the region, which has been established on the basis of
the Antarctic Treaty, serves the interests of all human-
kind and is proving in practice its efficiency and
reliability for the development of such cooperation in
the future.
Pursuant to Recommendation XI-1 of the eleventh
consultative meeting under the Antarctic Treaty, the
consideration of questions related to an antarctic
mineral resources regime is now under way. While it is
not yet a question of beginning industrial exploitation
of antarctic minerals (scientists and experts from
various countries regard this as a remote possibility),
it is not only feasible but also desirable to establish
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43
an appropriate international legal regime before any
state considers exploiting the mineral resources in the
region. A reliable barrier must be raised against any
uncontrolled activity with respect to these mineral
resources, and the unique antarctic environment with its
dependent ecosystems must be preserved for present and
future generations. An international legal regime to
further these ends should not be in contradiction with
the Antarctic Treaty; it should be fully based on its
provisions as their logical continuation, enriching their
substance and thus promoting the consolidation of this
important international instrument.
The existing geophysical, geological, and geochemical
methods as well as powerful drilling equipment enable
modern science prospecting and exploration for practically
all types of minerals. However, knowledge of Antarctica
is insufficient at present to allow fully substantiated
estimation of its mineral resource potential.
The question of mineral resources in Antarctica was
discussed for the first time at the sixth consultative
meeting held in Tokyo in 1970. Later on, a number of
recommendations were adopted. The ninth consultative
meeting, for example, took a decision establishing a
moratorium on any activities relating to the exploitation
of mineral resources of Antarctica until an appropriate
international legal regime was elaborated that would
adequately regulate such activities and provide proper
norms to protect the unique antarctic environment and
ecological systems dependent on it.
Of special significance were the decisions taken by
the eleventh consultative meeting held in Buenos Aires in
the summer of 1981, which adopted Recommendation XI-1.
This treated the elaboration and establishment of an
international legal regime for antarctic mineral resources
as a substantial measure that would develop and strengthen
the system of the Antarctic Treaty. Moreover, the Buenos
Aires meeting recognized the necessity of convening a
special consultative meeting to urgently elaborate an
appropriate regime, determine its form, including the
question of the advisability of setting up an inter-
national body, and establish a procedure for conducting
further negotiations.
Several sessions of the special consultative meeting
have already been held. They have considered questions
of the regime's scope of operation, the concept of
resources to be regulated by it, and the establishment of
stages of future activities in the field of mineral
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44
resources, among other issues. Most delegations believe
that the regime should be based on the principles and
purposes of the Antarctic Treaty and take the form of an
international convention. To ensure its successful
functioning, an organizational coordinating mechanism
should be created along the lines of bodies set up in
accordance with CCAMLR.
Actively participating in the elaboration of an
international legal regime for the possible development
of mineral resources in Antarctica in the future, the
Soviet Union seeks to establish in the field a firm
international legal order that would preclude any
arbitrary action prejudicing the interests of other
nations of the world. The Soviet Union would like to see
the regime for the development of mineral resources in
Antarctica codified in a special international instrument
and fully based on the principles of the Antarctic Treaty,
which guarantees the use of the region for peaceful pur-
poses only. The elaboration of an appropriate instrument
would considerably strengthen the system of the Antarctic
Treaty, which serves the interests of all humankind. It
should be stressed in this connection that no activities
relating to industrial development of Antarctic mineral
resources, in accordance with the decisions of consulta-
tive meetings, can be carried out until a proper
international legal regime adequately regulating such
activities is established.
During the period of almost 25 years in which the
Antarctic Treaty has been in operation, joint efforts
have helped to make a really gigantic leap forward in the
scientific studies of Antarctica. The voluminous infor-
mation obtained and processed in the fields of meteor-
ology, oceanology, physics, and atmospheric phenomena has
made it possible, in particular, to better understand the
essence of global climatic processes and to forecast them
with greater precision. Fundamental discoveries in
biology, glaciology, geography, geology, and other natural
sciences have been made, which are of great significance
not only for identifying laws of Antarctica's nature, but
also for understanding the evolution of the planet as a
whole. Annually, many states send to the sixth continent
scientific research expeditions that have at their dis-
posal up-to-date technology and sophisticated equipment.
This development of broad international and mutually
beneficial cooperation in Antarctica has become possible
due only to the 1959 treaty, a unique international legal
instrument whose effectiveness has been tested and borne
out by the entire course of its history.
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45
The task of comprehensive strengthening of the
Antarctic Treaty has of late acquired particular urgency
and relevance. This is explained by the objectively
harmful intentions of some states to revise this important
international treaty.
The USSR is resolutely opposed to any attempts aimed
at revising this important international treaty, no
matter what pretexts are used to justify them. Such
attempts are fraught with grave negative consequences not
only for the countries adjacent to the antarctic region
but for humanity as a whole. First and foremost, they
can damage the regime of exclusive peaceful use of
Antarctica established by the treaty, which undoubtedly,
would negatively affect the international situation. The
result could be that Antarctica, a zone of peace and
fruitful cooperation among states with different socio-
economic systems, would turn into a zone of friction and
dangerous international conflicts. A new dimension would
be added to the acute struggle among states that assert
claims to antarctic areas, the issue now frozen by the
treaty. It is not the erosion of the Antarctic Treaty
System but accession to it by interested states that will
guarantee the future continued use of this important
region of the globe for the benefit of all humankind.
Moreover, undermining the treaty would mean giving a
free hand to those who, to placate their monopolies, seek
to develop mineral resources in Antarctica without any
prior arrangements, outside any regime. This will
inevitably lead to uncontrolled and rapacious exploita-
tion of the above-mentioned resources to the detriment of
the continent's unique nature and its fauna and flora.
The significance of the treaty can hardly be over-
estimated, especially in the present-day tense inter-
national situation. The provisions of the treaty pro-
hibiting any measures of a military nature in Antarctica,
including nuclear explosions, make it possible to place a
reliable barrier to prevent the spread of the arms race
to this region.
The Soviet Union is in favor of strengthening the
Antarctic Treaty in every possible way as a major
international legal instrument of today, aimed at
maintaining peace and security both in the Southern
Hemisphere and all over the globe.
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Representative terms from entire chapter:
consultative meetings
