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OCR for page 413
27.
Pane] Discussion on Institutions of the
Antarctic Treaty System
The panel consisted of Lee A. Kimball (moderator),
Cristian Maquieira, and Rolf Trolle Andersen
The summarized presentations of three participants who
requested the opportunity to make statements on the theme
of this section are included below. Their remarks are
followed by those of the panel.
REMARKS BY BO JOHNSON THEUTENBERG
Theutenberg noted Sweden's accession to the Antarctic
Treaty on April 24, 1984, and to the Convention on the
Conservation of Antarctic Marine Living Resources (CCAMLR)
in June 1984. He described Sweden's early involvement in
both antarctic and arctic science, as had been mentioned
in other workshop sessions, but noted that since the 1959
treaty had been concluded Swedish participation in Antarc-
tic science had been manifested primarily by individual
scientists.
In this context he cited the transition--once the
Antarctic Treaty was concluded--from individual scien-
tists and scientific societies to government representa-
tives as the major determinants of antarctic developments.
Since Sweden was not an original signatory to the Antarc-
tic Treaty, its government at the time the treaty became
effective was not interested in being restricted to non-
consultative status, nor did the Swedish scientific
society seek government support to promote its specific
interests within the treaty system. So for 25 years
pursuit of antarctic interests in Sweden had lapsed.
During the same period, as securing access to resources
had become a critical national objective, science and
technology forced their way into the lives of states.
Theutenberg noted that these factors affect the formation
of national foreign policies as well as principles of
413
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414
international law, not least those regarding protection
of nature and the development of international environ-
mental law. Sweden was no exception, and it now wished
to maintain and even expand its scientific interests with
regard to neighboring ocean areas, including polar
research. In this regard, he stated, Sweden must seek
cooperation with other interested nations. Renewed
efforts by Swedish scientists in these fields have made
it natural for Sweden to enter the Antarctic Treaty
System (ATS) and the Scientific Committee on Antarctic
Research (SCAR), and Sweden will seek to promote regional
and international scientific cooperation in polar areas.
In commenting on the Antarctic Treaty, Theutenberg
suggested two alternative outcomes that might have
resulted had the 1959 negotiations failed: military
conflict in the area or a legal/political solution to the
claims based on argumentation by claimants and nonclaim-
ants. While the first alternative might have de facto
settled the territorial status of Antarctica, he doubted
that a legal/political solution could have been arrived
at. In either case, however, sovereignty in Antarctica
would have been resolved long ago. Had that been the
case, the wider circle of nations and other interested
parties would never have found themselves today in the
position of discussing these matters. He stated that the
founding members of the treaty should be given some credit
for the course of action taken in 1959, because they
actually opened the way for other states to take an active
interest in Antarctica and to participate in the Antarctic
Treaty. If the treaty system were to fail, he believed
that the alternatives for what is called "mankind would
probably be much less attractive than under the present
regime.
Moreover, a common heritage regime could be established
only by consensus, as had been done in the Law of the Sea
conference, and it was clear that this goal could not be
achieved with regard to Antarctica from either a political
or a legal point of view. He did not believe that the
common heritage principle contains any kind of ownership-
or management-oriented elements; it is not in itself a
regime for exploitation, common ownership, or joint
management of resources. It does contain the legal/
political basis for custodianship and has the meaning
that the heritage should be passed on to future genera-
tions without destruction. He wondered whether this kind
of regime will be of any help to the world community when
it comes to the question of exploitation of antarctic
resources.
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415
Theutenberg stressed that his country believes that it
is important that the treaty system be supported by a
wider circle of nations and that in general every member
of the international community have a right to follow
questions of international importance and advance pro-
posals and ideas relating to them, especially concerning
environmental protection and exploitation of resources.
For states affected by or believing that they have vital
interests to preserve in antarctic affairs, he stated,
the mechanisms for involvement should be strengthened.
He believed that it is difficult enough to solve real
conflicts within the ATS as it operates today; but outside
parties have no way in a legal sense to intervene in
potential conflicts, although they could possibly do so
by influencing world opinion. Criticisms of the ATS have
therefore arisen because outsiders believe that they have
no ability to influence or intervene in affairs affecting
them.
Taking this into account, some promising proposals
exist in the minerals regime negotiations not only for
mechanisms that would allow other concerned parties a
great deal of influence, but also with respect to some
ideas advanced by developing nations. There are also
some interesting ideas aimed at environmental protection
in the minerals regime papers, which could perhaps be
incorporated into the ATS itself. Theutenberg supported
working in the direction of openness with regard to
environmental issues, possibly by establishing some kind
of information and management mechanism in which broader
interests could have some influence.
Finally, he expressed the hope that the status of
observer will provide the nonconsultative states with the
ability to influence the important matters discussed at
biennial treaty meetings and in the minerals regime
negotiations.
REMARKS BY ALEXANDRE KISS
Kiss elaborated on the background and recent evolution
within the international legal system of the ill-defined
concept of the Common heritage of mankind, which had
arisen a number of times during discussions in the work-
shop. He noted its appearance in the 1979 Agreement
Governing the Activities of States on the Moon and Other
Celestial Bodies (Moon Treaty) and in the 1982 Convention
on the Law of the Sea. (The Moon Treaty entered into
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416
force on July 11, 1984, whereas the Law of the Sea
Convention is not yet in force.)
Kiss recalled that as modern international law took
definite form at the beginning of the nineteenth century,
it resulted in a growing number of treaties whose main
characteristic was that they were based on material reci-
procity; that is, states accepted obligations restricting
their sovereignty in order to gain perceived advantages
of equivalent value.
As early as 1815, however, a few treaty rules were
formulated that were not based on this criterion of
material reciprocity. They proclaimed freedom of navi-
gation, first in international rivers and later in the
newly constructed interoceanic canals of Suez and Panama.
Although these were agreements among a limited number of
countries, they could be considered the first expression
of what could be called the "common interest of mankind a,
In the aim of maintaining freedom of international com-
munications, states parties accepted obligations without
any immediate advantage to themselves.
Following World War I, the concept of the common
interest of mankind found expression in international
labor treaties drafted by the International Labor Organi-
zation: States accepted obligations to apply certain
social rules to their nationals without any compensation
other than the belief that other states would be encour-
aged to act in the same way and thus improve human social
conditions worldwide. After World War II, this concept
was developed in the fields of human rights and environ-
mental protection law.
.
The common feature of all these international treaties,
according to Kiss, is that they are not based on reci-
procity, unlike most treaty rules, and in particular that
they do not ensure any immediate advantage to the con-
tracting states. On the contrary, they impose on them
obligations that restrict their sovereign rights: States
must adopt legislation protecting the fundamental rights
and freedoms of individuals or of the environment within
their territories, and they may be obliged to explain
their acts before international organizations when a
violation of their treaty obligations is alleged. States
subordinate their immediate interest and their freedom of
action in order to promote a superior objective, such as
human rights or environmental protection. This works
only when all states of the world--or at least those of a
certain region--agree likewise to restrict their freedom
of action.
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417
Since the early nineteenth century, then, the applica-
tion of treaty rules based on the concept of the common
interest of mankind had been extended from international
waterways to certain substances and situations within
national territory. More recently, with the depletion of
natural resources owing to growing demand and demographic
pressures, a new perspective had appeared: That future
generations should not be deprived by human activities of
the benefit of natural resources, or, put another way,
that this generation has inherited resources that should
be managed in a way that quantitatively and qualitatively
should offer the same possibilities to its children and
grandchildren.
The main features of this new regime of the common
heritage of mankind are the following: (1) common use of
or free access by every nation, (2) prohibition of non-
peaceful use, (3) international management with a view to
ensuring rational use of resources in the interest of
present and future generations, and (4) access by the
whole of humankind to an equitable share of the benefits,
be they material, cultural, or scientific.
Some persons would add a fifth feature: the prohibition
of appropriation by states, but this is an open question.
It appears in the regime for deep seabed minerals in the
1982 Law of the Sea Convention and in the 1979 Moon
Treaty, and it is implicit in the regime for the geo-
stationary orbit. Kiss believed that it is questionable
whether it could be applied to the radio spectrum or to
Antarctica. He added that it should be borne in mind
that there are various nonappropriable elements that are
not necessarily part of the common heritage of humankind.
This is the case with the high seas and the airspace
above them as well as with outer space on the whole
(though not of celestial bodies). In these areas, which
are nonappropriable and should be used for peaceful
purposes, there is neither a prohibition on military use
nor, as yet, a prescription for international management
and rational use.
Kiss added that another aspect of the common heritage
of mankind was illustrated by the 1972 United Nations
Economic, Social, and Cultural Organization (UNESCO)
World Heritage Convention. While monuments, historic
cities, parks, etc. may remain under national
sovereignty, or even as private property, the convention
provides that their conservation is in a way under
international scrutiny to ensure that they benefit future
generations. Several international conventions on the
conservation of wild fauna and flora have the same
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418
effect. Thus, while no one contests Italian sovereignty
over Venice or the sovereign rights of Kenya to use its
territory, the conscience of mankind would hardly accept
the destruction of Venice in favor of an industrial
complex or the destruction of all wildlife in Kenya. He
saw the growth of a sense of moral rights shared by all
humanity with respect to cultural and natural components
of an increasingly universal civilization.
In conclusion, Kiss stressed the important concept of
trust: Individual states, groups of states, or in some
cases the whole international community are vested with
the task of managing, conserving, and transmitting to
future generations some essential components of our planet
or even of bodies in outer space. The common heritage of
humankind could be organized according to different legal
patterns, but these patterns all share the four criteria
identified earlier. In addition to the resources of the
deep seabed and those of celestial bodies, other items
falling into this category include the geostationarY
orbit, the radio spectrum, Antarctica, components of our
cultural and natural heritage, and certain wild fauna and
flora. In the future the ozone layer of the Earth's
atmosphere, the global climate, and our genetic heritage
could be added. In all cases where the concept of the
common heritage of humankind has already been applied,
the common interest of humankind materialized in a legal
instrument without any commensurate material interest
being granted to contracting states.
In his view, whatever the territorial status of
Antarctica might be, the area satisfies the criteria of
the common heritage of humankind: All nations have
access to it, nonpeaceful and even military uses are
prohibited, it is managed by international bodies, and
the benefits--that is, the scientific knowledge acquired
in Antarctica--are largely shared with the rest of the
world community. He believed that this is how the ATS
serves the common interest of humankind.
REMARKS BY JOSE SORZANO
Requesting an opportunity to "critique Zain's critique"
of the ATS (see Chapter 21 by Zain Azraai), Sorzano
affirmed Zain's impressions of the "reaction of extreme
sensitivity and resentment" on the part of the Antarctic
Treaty consultative parties (ATCPs) at the United Nations
regarding any questioning of the current antarctic system
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419
and Malaysia's initiative at the United Nations. He took
note of the reassurances obtained from repeated statements
by Malaysia that it does not wish to undermine the ATS,
preferring consensus to confrontation, and reported that
the ATCPs have reciprocated by showing flexibility and
not opposing inscription of the antarctic issue on the
United Nations General Assembly agenda nor the production
of the United Nations Secretary-General's study of
Antarctica.
He pointed out, however, that there have been other
Malaysian statements of intention that point in different
directions and therefore seem incompatible with the
reassurances previously articulated by Malaysia. These
divergent statements have created a great deal of specula-
tion concerning Malaysia's objectives and intentions with
regard to the ATS.
Sorzano believed that Zain's presentation as set forth
in Chapter 21 illustrates this point: Zain examined the
possible justifications for the ATS but did not find them
persuasive.
He argued that a justification based on know-
how and expertise is insufficient because it creates a
two-tiered, nonuniversal body, which does not meet the
criteria of "natural justice" and "interest."
The ATCPs had found Malaysia's intentions confusing,
because Malaysia was simultaneously saying that it did
not want to destroy the treaty and then challenging the
treaty's legitimacy; it appears Malaysia seeks consensus
and compromise only to raise an issue that cannot be
negotiated or compromised. In Sorzano's view, questions
of legitimacy by their very nature cannot be compromised;
they are zero sum: the treaty is either legitimate or it
is not; it cannot be something between.
In examining Zain's arguments, Sorzano first wished to
distinguish between the basis for territorial claims and
the basis for justification of the treaty. While he found
it doubtful that the basis for territorial claims could
be set aside as a historical anachronism, as Zain sug-
gested, nevertheless, even if the claims were set aside,
that fact would not impinge on the basic justification
and validity of the treaty. He believed that the treaty
~ it_ _ ~ ~ ~ ~ _
stands on its own, independent ot tne claims ana cnelr
validity or lack thereof, so that it is not enough to
state that territorial claims are not universally
recognized to challenge the validity of the treaty.
Turning to expertise and know-how as the basis for
justification of the treaty, Sorzano noted that this is
neither a new nor a negligible justification for
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420
authority or for sharing in authority (e.g., Plato 'S
Philospher King) and that it is in widespread use today
in both international and domestic politics. Even the
most egalitarian democracies restrict voting rights to
those who could exercise them rationally; for example,
minors and lunatics are excluded.
So, too, are two-tiered political systems extremely
common. The United Nations Charter created two-tiered
systems both in granting veto power to the permanent
members of the Security Council and in its grant of
powers to the council as compared with the powers of the
General Assembly. He believed that Malaysia's own con-
stitutional arrangements are a form of two-tiered
bicameral parliamentary system, and noted that Malaysia
was a founding member and driving force behind two-tiered
agreements governing tin and rubber production. He
therefore did not believe that "two-tieredness" could be
a disqualifying ground for the legitimacy of the Antarctic
Treaty.
Nor did Sorzano accept that nonuniversality could be
used to challenge the legitimacy of the treaty, since
there are multiple examples of nonuniversal international
institutions, such as the European Economic Community,
the United Nations Food and Agriculture Organization, the
International Monetary Fund (IMF), the International Bank
for Reconstruction and Development (IBRD), and UNESCO,
whose legitimacy nobody would even dream of challenging.
Even the UN General Assembly is not a universal body,
since some states, such as Switzerland, are not members.
Sorzano concluded by suggesting a political, as opposed
to a legal, justification for the Antarctic Treaty.
Noting that much has been heard of the uniqueness of
Antarctica, he agreed with this assessment in most
respects but emphasized that its situation is not
unprecedented in history: Following the age of explora-
tion and discovery in the sixteenth, seventeenth and
eighteenth centuries, there was a need to elaborate a
political theory to justify the new governments that were
set up in the newly discovered lands. The theoretical
work of Hobbes, Locke, and Rousseau postulated a situa-
tion of a "state of nature, n in which there was no
governmental authority, individuals behaved with
unrestrained self-interest, and thus conflict was ever-
present. This undesirable state of affairs was ended by
a "social contract," in which previously unrelated
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421
individuals voluntarily joined in forming a governing
structure based on the consent of its members.
In Sorzano's view, the situation before and after the
treaty became effective bears a strong similarity first
to the "state of nature": no governing authority,
unrestrained self-interest, and conflict, and then to the
"social contract": a treaty based on consent, setting
aside self-interest and creating a governing structure
that, like any government's, including Malaysia's, is
exclusive, total, and unaccountable.
REMARKS BY CRISTIAN MAQUIEIRA
Maquieira commented that, having visited Antarctica, he
now understood the twinkle in the eye of all those who
had come before. This feeling complemented his earlier
understanding of the great respect for the treaty system
demonstrated by those who had worked with it.
Referring to Zain's point about the "totality of ATCP
rights with respect to Antarctica, Maquieira did not
believe that it is possible to divorce demilitarization
and cooperation in antarctic science from cooperation
with respect to resources under the Antarctic Treaty. He
described the system as placing equal limitations on all
parties to it, and believed that it would upset the
balance among parties if some of these limitations were
incorporated into a resources regime and others were
rejected.
On the other hand, he believed that the system must
prove itself adaptable to states and organizations newly
interested in Antarctica in order to make it attractive
and acceptable to them. He noted that a start in this
direction has already been made with the invitation to
the nonconsultative states to attend treaty meetings as
observers and with the increased distribution of docu-
mentation from treaty meetings, including publication of
the Handbook of the Antarctic Treaty System. He also
introduced the idea of creating a fund to help developing
countries that wished to join the treaty and take part in
scientific research. He stated that there is a need to
continue and expand scientific cooperation within the ATS
and that the interests of the international community
require more extensive participation by states in Antarc
tic science. These two elements constitute the basis of
the fund idea that had been presented in the minerals
regime negotiations. (For additional discussion of the
-
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422
fund see chapter 20.) He added that all these adapta-
tions must be initiated by the parties to the treaty.
Maquieira brought up the fact that various proposals
for the evolution of the treaty system have been made
elsewhere. For instance, he noted from the report of th
United Nations Secretary-General that Zimbabwe has
proposed the establishment of an international scientific
research station.The possibility of establishing a joint
scientific venture among groups of developing countries
and consultative party states has also been mentioned.
It had been noted earlier that SCAR is contemplating
establishing a category of "associate state" membership.
In addition, various ideas have been proposed to extend
the cooperative working relationships between the ATS and
other international organizations. Maquieira suggested
that a group of developing countries could establish a
program of technical cooperation among themselves and
then seek, say, United Nations Development Program
funding to carry out activities in Antarctica. He
cautioned, however, that all these possibilities
presuppose
Antarctica.
e
a legitimate and sustained interest in
REMARKS BY ROLF TROLLE ANDERSEN
Andersen likewise stressed the ability of the ATS to
adapt, as demonstrated by the invitation in 1983 to the
nonconsultative states to attend treaty meetings. He
stated that while consultative status requires a concrete
demonstration of interest, there are other ways of par-
ticipating in the system, such as through the newly
created observer role. He acknowledged that this
development will create some difficulties as well, since
the sheer number of states involved will of its nature
complicate a system that operates by consensus.
Andersen believed that further evolution will take
place in the system and is desirable. This is a matter
that naturally belongs on the agenda of regular consul-
tative meetings. During the twelfth consultative
meeting, in Canberra in September 1983, an agenda item
entitled "The Operation of the Antarctic Treaty System"
had resulted in a recommendation on a number of measures
to be taken in order further to open up the ATS.
With respect to developments in the United Nations, he
expressed the view that establishing a United Nations
committee on Antarctica is unnecessary and undesirable; a
forum already exists within which antarctic matters are
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423
discussed. He urged states interested in antarctic
questions to accede to the Antarctic Treaty and express
their views within that body. He disagreed with the
Malaysian proposal to call for specific comments on the
1984 United Nations study in preparation for the 1985
United Nations General Assembly. It is up to individual
governments to review the study, which they are doubtless
already doing.
Elaborating on the question of the common heritage of
humankind, he did not find the principle applicable to
Antarctica, inter alla, because (1) there has been human
activity in Antarctica for most of the twentieth century,
t2) claims to sovereignty exist there, and (3) an existing
legal regime applies there.
In response to Zain's comments that the parties to the
Antarctic Treaty always act in concert,
coherence as necessary and desirable:
he viewed this
It is an impressive
demonstration of the importance attached by all the con-
sultative parties to the maintenance and strengthening of
the ATS.
S~qiLARY
The final session's discussion encompassed a number of
topics raised in earlier sessions that in one way or
another relate to the institutional evolution of the ATS.
On one level, the legitimacy of the ATS, as opposed to a
more universally based system of governance for Antarc-
tica, was debated at greater length and depth than in the
discussions on this point summarized in Chapters 7 and
20. On a second level, for those who not only endorse
the legitimacy of the ATS but believe that the ATS has
proved to be a most workable system of governance and
appropriately responsive to changing interests and
requirements in Antarctica, the key question was to
identify the directions in which the ATS should continue
to adapt to changing circumstances.
The following discussion is divided into sections on
legitimacy and the evolution of the ATS, followed by
concluding remarks from three of the primary speakers.
LEGITIMACY
The discussion on legitimacy covered some of the same
ground as that outlined in Chapters 7 and 20. Although
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426
action in Antarctica existing prior to completion of the
Antarctic Treaty, and they protected their positions--
maintained under Article IV--through the consensus
decision-making procedure.
Nonetheless, some participants maintained that the
claimant/nonclaimant positions in Antarctica contain the
seeds of latent conflict and that internationalizing
Antarctica might bring about the renunciation of the
claims--which in some eyes are an anachronism that newly
independent states neither recognize nor acquiesce.
Internationalization does not mean that it is essential
to create new management institutions or to base them on
a one-nation/one-vote decison-making process; the
countries nearest Antarctica might be assigned to manage
the area, or a condominium system of management could be
established. In the view of these participants, united
Nations interest does not necessarily mean United Nations
control, nor does it mean the destruction of the
Antarctic Treaty. The "sacred cow" attitude of the
consultative parties that oppose all challenges to the
treaty seemed to be a violation of the scientific
approach, which was based on questioning the status quo
and was enshrined in the purposes of the Antarctic Treaty.
While the concept of the common heritage of humankind
was deemed appropriate for outer space and the deep
seabed, it did not take account of the existing legal
situation in Antarctica. The common-heritage principle
had been applied to outer space and the deep seabed only
by means of consensus. No such consensus exists with
respect to Antarctica. Therefore, the principle is
clearly not applicable. Moreover, the common heritage
was meant only to describe a framework for a future
regime. Part XI of the Law of the Sea (LOS) Convention
is not the mandatory interpretation of the principle.
A regime could be envisaged that, being in full harmony
with the common heritage principle, nevertheless would
entrust certain states with obligations and rights to
ensure the use of Antarctica for the benefit of humankind
as a whole. But if the common heritage concept were to
be applied in the meaning of Part XI of the 1982 LOS
Convention, it would mean the collapse of the treaty
system, and this would not be in the interest of
humankind. (There was further debate about whether the
common heritage concept is an exploitative one. See
chapters 19, 20 and 25.)
The second question related to Zain's characterization
of the rights of the consultative parties as "total, n
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that is, bearing on all activities in Antarctica.
Divorcing the issue of minerals development from the
framework of the ATS, however, was seen by some as
undermining the system; it would also remove potential
minerals activities from the umbrella of the Antarctic
Treaty's emphasis on environmental protection. Others
viewed this "totality" as part of a natural evolutionary
process under the Antarctic Treaty as new interests and
activities arose in Antarctica. The ATS did not ab
initio govern all activities in Antarctica, but it
demonstrated its flexibility and responsiveness to new
circumstances with the adoption of additional legal
instruments and recommendations.
The third question, that of a forum fully representa-
tive of all states' views on antarctic questions, was
left to future antarctic symposia and meetings. Its
answer is contingent on (1) evolution within the ATS and
whether this will be sufficient to provide the forum
sought (see the discussion below) and (2) the approach
taken in the United Nations and the feasibility of
agreement there on the future system of governance for
Antarctica.
EVOLUTION OF THE ANTARCTIC TREATY SYSTEM
Drawing on the speakers' presentations that described the
evolution of the ATS to date, the Workshop on the
Antarctic Treaty System explored again, in the discussion
of institutional changes within the ATS, possible
directions for continued adaptation of the ATS that had
arisen throughout the workshop.
(1) The question of participation in the ATS was
addressed again in Chapters 21-26 with respect to
nonconsultative parties and international organizations,
both governmental and nongovernmental.] It was also
raised again with respect to non-United Nations-member
states, such as the Republic of Korea, a topic addressed
in Chapter 6, and with respect to helping developing
countries to take part in antarctic scientific research
projects and share in their results.
This topic encompasses in addition the question asked
in Chapters 13 and 14--how to institutionalize input from
the concerned public in a fruitful manner--and the
possibility noted in Chapters 19-20 of international
comment on decisions pursuant to the minerals regime.
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428
Many speakers acknowledged that there is room to per-
fect the evolution of the ATS in cooperating with non-
treaty states and international organizations to the
benefit of all. Bruckner's presentation in Chapter 22
examined the role of NCPS in the ATS and the criteria
governing CP status, in particular the standing of joint
scientific research programs in this regard (see Chapter
7).
TO .. ~~e ~ I_
1~ WdS nocea Gnat Increasing cooperation with inter-
national organizations could also improve the achievements
in Antarctica in fields where these organizations exercise
competence. Further study of the types of relationships
described by Woolcott (Chapter 25), in order to develop
the relationships between the ATS and the United Nations
system, was envisaged.
Spokesmen for the International Union for the Conserva-
tion of Nature and Natural Resources (IUCN) and ASOC made
cases for the involvement of these two organizations in
the ATS as a measure of the flexibility and institutional
development of the system. It was noted that IUCN has
expertise relevant to Antarctica, interests in the area,
and a broad-based constituency. It could also contribute
to worldwide understanding of antarctic issues and is
already involved in sponsoring with SCAR a meeting on
scientific requirements for antarctic conservation (see
Chapter 14).
ASOC, founded in 1977, represents 150 member organiza-
tions in 35 countries, drawn together by their goal of
implementing the World Conservation Strategy developed in
1980 by IUCN, the United Nations Environment Program, and
the World Wildlife Fund International. ASOC hoped for
more activity with respect to the concept in the Agreed
Measures for the Conservation of Antarctic Fauna and
Flora, adopted in 1964, which state that the treaty
parties consider the treaty area a special conservation
area. ASOC believed that Antarctica was legitimately a
concern of the international community as a whole.
One speaker urged elimination of the "discrimination"
against non-United Nations-member states' ability to
adhere to the treaty.
With respect to participation by developing countries
in antarctic science, the point made in the section on
Antarctic Science and Chapters 17-20, on the lack of
immediacy with respect to any foreseeable benefits from
antarctic minerals development and potential sharing of
the revenues therefrom, was repeated, emphasizing instead
the already extensive benefits derived from scientific
and environmental knowledge of Antarctica. It was
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429
suggested that these benefits could be expressly extended
to developing countries through SCAR programs for
scientific activities and could be underwritten
financially by the consultative parties or by some other
groups in order to ensure more widespread
distribution of the existing benefits of the ATS.
Another speaker added that for antarctic science to
contribute most effectively to scientific knowledge and
associated benefits, it should not be conducted in
isolation but should be integrated into domestic science
programs and form part of the global research agenda.
Otherwise its potential for addressing domestic problems
and priorities in many countries would be lost. He
believed that the increasing sophistication of science
must be used for the benefit of all countries. Perhaps
the best way for countries to become influential in the
ATS would be to encourage their scientists to cooperate
with the countries already active in antarctic science.
He added that while his country had never become a
member of the Antarctic Treaty, it had taken part in
science and supporting activities since 1914. Yet, by
providing supplies and commercial equipment for antarctic
activities, his country had probably made more money out
of Antarctica than any other--an analogy to the saloon-
keeper at a gold rush camp: while others made headlines
and won or lost fortunes, the saloonkeeper made money.
He posed two questions: whether it is necessary to join
the ATS to benefit from it, which his country's experience
would indicate was not necessarily the case, and whether
there is a responsibility on the part of nations benefit-
ting from the ATS to join it and to join in the collective
responsibility that membership entails.
(2) The role of consensus in the ATS and its continu-
ing viability as membership in the ATS expanded and as
new legal instruments were articulated to govern antarctic
activities received some attention. (See section on
Legal and Political Background and Christopher Beeby's
presentation on the minerals regime in Chapter 19.)
(3) The coordination, integration, or consolidation
of the ATS was touched on briefly again in relation to
competing uses in Antarctica and the preservation of the
antarctic environment. This topic is on the agenda of
the XIII consultative meeting in October, 1985. (See the
proposals for a continental conservation strategy for
Antarctica and for an environmental protection agency to
independently monitor environmental protection policies
and compliance with them in Chapters 13 and 14). So too
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was the relationship between adherence to the minerals
regime and accepting the Antarctic Treaty in its entirety
(see Chapters 19 and 20).
The question of whether growth within the ATS might
require some form of permanent infrastructure or
secretariat was also raised.
In addition, one participant suggested amending the
World Heritage Convention, cited by KISS earlier in the
discussion, so that it could apply to the special cir-
cumstances in Antarctica created by the status of claims
Additional comments were made about the
paramount value of scientific research in Antarctica (see
and Article IV.
section on Antarctic Science), the possibility of a
30-year moratorium on minerals development activities
(see Chapter 20), and the possibility of extending the
antarctic zone of peace north by 10 degrees every year.
(4) The possibilities of renewed conflict and mili-
tarization of Antarctica, the role of effective enforce-
ment, the viability of inspection under the antarctic
minerals regime and within the ATS as a whole, and the
relationship of enforcement and inspection to the
accountability of the ATS were considered as well
,
· . .
Some fears were expressed that the minerals regime
might undermine the ATS, because developers would oppose
inspection of their operations in order to protect
proprietary information, and this could compromise
on-site inspection. Such possible deterioration of
inspection might in turn undermine the demilitarization
of Antarctica. One participant suggested that the fact
that Antarctica was not militarized might simply be due
to the fact that appropriate technology did not exist at
the time of the negotiation of the treaty; new tech-
nologies might produce a situation in which Antarctica
would be militarized. He claimed that some governments
questioned the treaty because it prevented them from
developing military options there.
Other speakers countered the possibility of the
militarization of Antarctica by noting that both the
United States and the USSR have a strong interest in
avoiding that eventuality. Moreover, Antarctica was the
only place where inspection works, and there is no reason
to presume that it will not continue to do so.
(5) With respect to the information policies of the
ATS, all participants emphasized the importance of
accessibility, continuity, regularity, and sufficiency of
information--whether dealing with activities in Antarc-
tica, the results of scientific research projects there,
or proceedings in ATS forums. They took note of progress
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made in the area over the past 18 months and acknowledged
the relationship between information policies and building
confidence in the ATS and making it more accountable.
This issue is to be considered again at the XIII consulta-
tive meeting in October 1985.
Some speakers noted, contrary to Zain's view, that
there is accountability under the treaty among parties as
well as accountability to third states under general
principles of international law. Nor does the Antarctic
Treaty depart from other general international law
governing state responsibility and liability.
CONCLUDING REMARKS
R. Tucker Scully
Scully stated that the ATS has evolved and would continue
to evolve. There is no alternative and this represents a
strength of the system. He believed that there is a
logical inconsistency in the position, articulated by
countries such as Malaysia, that argues that the system
should be changed but at the same time does not define
the country's interest or interests with respect to
Antarctica. Nor is there any justification in calling
for the renegotiation of the Antarctic Treaty based upon
fears or speculation as to what might happen. In his
view, the treaty system had seen an oustanding example of
international cooperation--in arms control, in scientific
research, in environmental protection, and in resources
management. To achieve these objectives the system had
demonstrated that when legitimate (and concrete) interests
arose in these areas, they would be effectively
accommodated.
Richard Woolcott
Woolcott acknowledged that the Malaysian initiative had
served a useful purpose in assisting in the further
opening up of the ATS and in the production of the
comprehensive United Nations study on Antarctica. But he
did not agree with the impression left by Malaysia that
its proposal for a United Nations special committee had
been widely supported among non-treaty states. Various
UN member states, including some members of the Group of
77, had not favored the committee. To the two categories
of nontreaty states identified by Zain, he would add the
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two-thirds of the United Nations member states which had
shown very little interest in the subject and which did
not contribute to the United Nations study and also those
nontreaty states which were actively considering acceding
to the treaty. Even of the 54 countries that did
contribute to the United Nations study, the majority were
parties to the treaty. Antarctica simply was not an
issue about which the United Nations was, or needed to
be, concerned. The issue had been artificially
stimulated by Malaysia.
He believed that countries outside the treaty system
were able to influence decisions taken by the parties,
and noted that a measure of accountability was generated
through the pressure of public opinion and indeed through
an institution like the United Nations, should some real
problem arise in respect of Antarctica. He wished to
revise his introductory presentation to indicate that the
United Nations did not really create problems. Rather,
what he had had in mind was that, in the case of
Antarctica, an issue had been artificially promoted when
there was, in fact, no contention in Antarctica. In this
case, United Nations consideration had the capacity to
exacerbate the matter and bring about a confrontation
between parties to the Antarctic Treaty and some
nontreaty states. In his view, this would create
an unnecessary problem. Too often the United Nations
General Assembly becomes an arena for confrontation
rather than a forum for conciliation.
He believed that certain political realities should be
taken into account in considering any United Nations
involvement with Antarctica, because there is a very
broad base of support for the ATS. For instance, the two
superpowers, the five permanent members of the UN
Security Council, all the present nuclear powers, six of
the seven most populous nations on Earth, and the current
chairman of the nonaligned movement are members of the
treaty system and oppose institutionalizing the
involvement of the United Nations in Antarctica. The
antarctic issue could not be presented as either an
east/west issue, because of the membership of the United
States and the USSR, or a north/south issue because of
the membership of countries like India, China, Brazil,
and Argentina.
He confirmed Zain's impression that the Antarctic
Treaty consultative parties believed that the less the
United Nations is involved, the better. This was because
the parties do not want any actions taken that could lead
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to undermining a successful and valuable treaty. His own
consultations indicated that a number of nonaligned and
nontreaty countries are in fact confused about why
Malaysia has raised the issue in the first place and
simply hope that it will fade from the United Nations
agenda.
His reasons for stating that the United Nations will
not be able to manage effectively some new antarctic
-
regime were the followinu:
_ the United Nations is not a
world parliament but an assembly of sovereign states;
these states are divided or disinterested in the issue;
United Nations members do not easily reach agreement on
any major political, economic, or social issue especially
when deep divisions are involved.
_ ~ , ~
In addition, the group
system has resulted, on occasion, in support for various
issues being horsetraded independently of the merits of
the issue. The United Nations is a politicized body,
tending toward preoccupation with essentially political
conflicts: Arab versus Jew in the Middle East, white
versus black in southern Africa, East versus West in a
number of areas, and North versus South on economic
questions. For instance, Pakistan has criticized the
Antarctic Treaty not, in his view, because it has made a
considered assessment of its value but probably because
India has joined it; similarly, Ghana and some black
African countries have attacked the treaty not on the
basis of disagreements with its objectives but because
South Africa is a member. South Africa had joined the
Law of the Sea Convention without attracting African
· ~
opposition.
Zain Azraai
Zain agreed that clearly the countries outside the ATS
must identify answers of their own but stated that their
first efforts have been directed toward understanding the
position of the parties to the treaty. He reiterated that
those outside do not necessarily wish to replace the ATS.
On the other hand, he saw joining the Antarctic Treaty as
a "catch-22 n situation:
longer challenge the system, but it was not yet clear to
him to what extent the country would be able to influence
determinations within the system.
He did not see why the exclusive rights of the con-
sultative parties with respect to decision-making should
be extended to all activities in Antarctica nor why the
J _
, _—
once a country joins, it can no
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consultative parties are unwilling to be accountable in
some forum to the wider international community. He
questioned the assertion that by not objecting to Antarc-
tic matters being dealt with in some other forum the
Antarctic Treaty parties do not restrict the rights of
others; he recalled earlier efforts by the consultative
parties to restrict possible involvement in antarctic
affairs by the United Nations Committee on Natural
Resources, the United Nations Environment Program, and
the United Nations Food and Agriculture Organization.
Zain also wished to get a clearer definition of the
special rights of the consultative parties and whether
those rights derive merely from spending money in
Antarctica. Nor was he yet certain that he understood
why the Antarctic Treaty creates only obligations but no
rights, as several speakers had indicated, because while
regulations by definition create restrictions or obliga-
tions, the determination or decision as to what those
regulations should be is the exercise of a right.
He doubted the relevance of attempting to justify the
Antarctic Treaty's status by citing various limited-
membership treaties, because the mandate for the
establishment of these other limited-membership bodies
came from the United Nations or was negotiated in the
United Nations or otherwise freely negotiated by the
parties concerned. He also believed that it is unhelpful
to ascribe extraneous motives to the positions of member
states, as had earlier been suggested in the case of
Pakistan and Ghana. Members states' views should be
ascertained from their own statements rather than
asserted by individuals on the basis of their perception
as a result of any consultation in which they may have
engaged.
He concluded that, as a representative from a country
outside the ATS, he would follow carefully the evolving
role of the nonconsultative states and was interested in
the role of the United Nations specialized agencies and
other international organizations vis a vis the ATS. He
added that he did not like to see the latter involvement
pursued only as a reluctant concession on the part of the
consultative parties to the treaty. He supported the
development of extensive working relationships with these
bodies, by which he meant that Antarctica should be dis-
cussed in the governing councils of the relevant
specialized agencies; he did not mean simple attendance
by an individual from a specialized agency at Antarctic
Treaty meetings. These developments would help create
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confidence among members of the international community
that Antarctica is being managed in their interest and
for their benefit.
His fundamental questions remained: Who should
reconcile differing views on Antarctica, in what forum,
and how? He noted that many speakers, including those
who were supportive of the present ATS, had stated that
the system could be improved. It was Malaysia's position
that discussion of these issues should take place in a
forum where member states would be on an equal footing,
without prejudice to any position that they may take
regarding the ATS.
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Representative terms from entire chapter:
common heritage
