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553 I December 29, 1986 ANTARCTlCA SH0UL.D REMAI N OFF. LIMITS TO UNITED ?lATlONS MEDDLING INTRODUCTION With a surface area covered hy ice and a population composed largely of penguins and scientists, the vast undeveloped continent of Antarctica would seem an unlikely focus of international political co n troversy. Yet a small group of nations, spurred largely by Antarctica's future resource poteiitial, recently has-been trying to direct the United Nations' attentLon to Antarctica. Their goal: to appl-y to Antarctica the principle of the ''common her3tage of mankind the controversial theoretical basis for the U.N. Law of the Sea Convention, and thereby pave the way for establishing a U.N.-sponsored Antarctic regulatory regime.
Such a step could endanger Antarctica's environment seriously and would damage pr ospects for the rational future exploitation of Antarctica's potential mineral wealth: it also would sabotage effectively the 1959 Antarctic Treaty, which raises the ironic prospect of the United Nations undermining one of the most successful achievements of postwar multilateral diplomacy.
The so-called Question of Antarctica was revived at the U.N. in September 1982, when Malaysian Prime MinisFer Dr. Mahathir bin Mohamed called for a "new international agreement" on Antarctica before the U.N. General ASS8 mbly. Since then, both the Organization of African 1 As quoted in Deborah S.hapley, The. Seventh Continent: Antarct ica in a Resource Age Washington, D.C.: Resources for the Future, Inc., 1983, p. 218 m Unity and the Non-Aligned Movement in essence have d e clared the continent "the common heritage of mankind, using rhetoric typical of other New International Economic Order manifestoes of the Group of 77, the umbrella group now cdmprising some 130 developing countries. To complicate the issue, the "consensus " procedure governing previous U.N. discussions of Antarctica has broken down while many members of the Group of 77 continue to urge the expulsion of South1 Africa from the Treaty system.. Some U.N.*Secretariat'officials moreover, have been attempting to e x acerbate potential jurisdictional conflicts between the U.N. Law of the Sea Convention and the Antarctic Treaty while international environmental groups such as Greenpeace bitterly have attacked drafts of an Antarctic minerals3regime being negotiated by t h e Antarctic Treaty Consultative Parties the U.N General Assembly recently joined an attack in which These developments are particularly disturbing given the successes of the 1959 Antarctic Treaty Fn furthering "the ]purposes and principles embedded in the Charter of the United Nations.I1 Sidestepping the delicate question of national sovereignty over Antarctica, the Treaty has demilitarized and denuclearized the continent, promoted international scientific research and environmental conservation, and serve d as a model for sustained international cooperation. Parties to the Treaty likewise have negotiated separate but related conventions and agreements on environmental matters and soon will complete a regime to regulate future minerals exploitation.
The Trea ty also is notable for its openness: any U.N. member state can accede to it freely, and any member state which denionstrates a scientifici interest in the continent can become a consultative, or voting, party. Furthermore, though the U.S USSR, and such pr o minent developing countries as India and Brazil are all consultative parties the consensus decision-making procedure within the Treaty has isolated Antarctica from the East-West and North-South ideological conflicts that dominate the United Nations and ot her international organizations.
Treaty at the U.N., the Treaty parties have taken new steps to assure that the Treaty and its operations are as accessible as possible Recently, largely in response to criticisms levied against the 2. See "Text of Paragraph s on Antarctica in the Non-Aligned Movement Meeting Communique 1983, Paragraph XVIII: 87; and OAU Council of Ministers Resolutions, Addis Ababa Ethiopia, 1985 3. See, for example Antarctic Minerals Regime, Beeby's Slick Solution Q, vol. 23 no 1, 1983 4. A n tarctic Treaty The Treaty," operative paragraph 5. i 2These include allowing nonvoting parties to participate in meetings and negotiations, keeping the relevant U.N. officials and agencies informed of Antarctic developments, and releasing documents from p revious meetings I These and other benefits of the present Treaty System are widely recognized; even the 1984 report of U.N. Secretary-General Javier Perez de Cuellar on Antarctica tacitly 'supports keeping the Treaty in force.
U.N. agenda. Some veteran U. N. diplomats recall that the process leading to the Third U.N. Conference on the Law of the Sea similarly began with a U.N report on the issue, which led-to the establishment in 1967 of the so-called Seabed Committee. Many feel that a U.N.
Vommittee on An tarctica,Il in the words of a West German U.N diplomat, figwould become a slicing machine which would slowly cut the Antarctic] Treaty to shreds Its Nonetheless, efforts to establish such a committee continue Yet attacks on the Treaty persist, as the issu e lingers on the To prevent the shredding of the Antarctic Treaty, the United States and other Treaty parties should tell the Secretary-General that further use of scarce U.N. resources to consider this issue would be wasteful and counterproductive. In par t icular, the U.S. should pursue the two-track policy of 1) introducing a resolution at the upcoming October 1987 meeting of the Antarctic Treaty Consultative Parties tentatively set for Rio de Janeiro) stating that further U.N consideration of Antarctica w o uld be inappropriate and continuing to support the nonparticipation of Consultative Parties in all U.N. votes and inquiries'on the subject, and 2) urging those developing countries concerned about the continent to follow the examples of India, China and B razil and accede to the Treaty.
Congress convenes next month, it should pass a resolution restating U.S. support for the Antarctic Treaty System and recommending that the United Nations take no further action on the subject Furthermore, when the 100th THE ANTARCTIC TREATY SYSTEM: HISTORY AND EVOLUTION Writes George Washington University political scientist Christopher Joyner: IlAntarctica...is a white desert. It is the highest, windiest, coldest, driest, most lifeless of the continents.Il6 With average tem p eratures on all parts of the continent well below freezing, Antarctica is as forbidding as it is 5. As quoted in Louis Wiznitzer Small Nations Protect Bigger-Power Claims to Antarctica's Riches," Christian Science Monitor, November 19, 1984 6. Christopher C. Joyner, International Studies Notes of the International Studies Association, Volume 11, No. 3, Spring 1985, p. 1 3expansive. Nonetheless, before the conclusion of the Antarctic Treaty in 1959, the continent was the subject of political rivalries and l egal battles; at one point, in fact, a party of Argentines fired warning shots above the heads of a British expedition.
Central to these conflicts was the question of national sovereignty over various parts of the continent. Australia Argentina, Chile Fran ce Norway New Zealand and the-United Kingdom all claimed, and continue to claim, sections of Antarctica as their own territory. Some claims overlap. Both the U.S. and the USSR meanwhile, reserve the right to make such claims in-the future.
Although the legal basis for such national claims is in some cases rather exotic--Argentina, for example, bases its claim on a 1493 Papal Bull--the governments concerned continue to stand by them.
The maintenance of'these claims and the current attacks.on the Treaty System are dictated 1.argely by perceptions of Antarctica's scientific, strategic, and economic significance. The continent's value as an "international laboratory," its primary role si n ce 1959 is unquestionable: Antarctic science has made significant contributions to7fields as diverse as meteorology, marine biology, and plate tectonics. Many scientists and diplomats believe that scientific research will continue to be the most valuable h uman activity on the continent for the foreseeable future the continent covers nearly one-tenth of the earth's surface and dominates the South Polar region. As Joyner notes, 'Ithe geostrategic import of this region could assume an even greater criticality for transoceanic shipping: the passageway between the tip of South America and the Antarctic peninsuia provides the most logical alternative route for maritime vessels should the Panama Canal for some reason be closed or otherwise unavailable I8 Should an y nation establish military bases on Antarctica or use it for nuclear testing or deployment, the global balance of power would be affected, perhaps dramatically. Recognition of this contributed substantially, to the conclusion of the Antarctic Treaty, whic h keeps the continent demilitarized Antarctica's strategic value is likewise immediately apparent, as It is Antarctica's economic potential, though, that figpres most prominently in debates about the future of the Treaty System this potential is already be i ng realized: a number of nations operate fisheries in Antarctic waters, harvesting primarily krill, a small Some of 7. See, for example, William F. Budd The Antarctic Treaty as a Scientific Mechanism Post-1GY)--Contributions of Antarctic Scientific Resear c h," in Antarctic Treatv Svstem An Assessment (Washington, D.C National Academy Press, 1986 8. Joyner, 9~. ciL, p. 2 4protein-rich waters crustacean that swarms in large quantities in circumpolar Most in-ernational attention hough, has centered on possible development of Antarctica's mineral and hydrocarbon deposits. The world has speculated about the extent of these deposits since Amundsen's and Scott's.1911-1912 race to the South Pole. It is now reasonably clear that oil 'bnd-gas exist' on and around the continent as do elements of iron, copper, lead, mol'ybdenum, manganese, uranium and chromium.
Thus far, however, the brutal Antarctic climate'and the lack of significant scientific data have precluded large-scale prospecting.
Furthermore, there seems to b e a consensus among scientific experts and geologists that, as University of Southern California professor James A. Zumberge states no mineral deposits likely to be of economic value in the foreseeable future are known in Antarctica. This statement i-s no t to say that Antarctica has no mineral resources, but rather, if they exist, they have no economic significance today or in the near term future Even so, the Antarctic Treaty Consultative Antarctic minerals accord to insure that, if there is minerals expl oitation, it will be rationally and carefully managed Parties want to take no chances and thus are nearing completion of an Political economic i strategic, and environmental concerns prompted the negotiation and signing of the current Antarctic Treaty.
By the middle of the 19508, tensions between claimant nations were mounting.' Example: Great Britain tried three times in that decade to take Chile and Argentina to the World Court over competing claims.
India and New Zealand, meanwhile, were suggesting that the United Nations take up the issue, with a view toward "internationalizing" the continent, a step most claimant nations vehemently oppose.
Ultimately, as Antarctic expert Deborah Shapley notes, NATO and Latin American nations, worried by MOSCOW'S launc h of the satellite Sputnik concluded that only a treaty.could 'forestall a possible Soviet invited the twelve nations participating in.the 1957-1958 International Geophysical Year, which had established bases and transportation facilities on the continent , to Washington. The participants included Argentina, Australia, Belgium, Chile, France;.
Japan, New Zealand, Norway, South Africa USSR, Great Britain, and the U.S Signed in 1959, the Treaty is based in large. part on a- 1948 draft military presence on the continent. As a result, the U.S. in 1958 by Chilean diplomat Jose Escudero Guzman. It is accurately 9. In Antarctic Treatv Svst em: An Assessment, go. ciL, p. 272 5-characterized by Deborah Shapley as a "massive compromise amofig historic Antarctic rival s -and an unfinished political deal.I1 principal features of the Treaty are its provisions for demilitarization,.freedom of'scientific investigation denuclearization and the noninfringement of powers' claims. The Treaty's provisions for demilitarization are particularly notable Article I bans all military measures and weapons testing, while Article V explicitly prohibits nuc1ear"explosions and radioactive waste deposits on Antarctica. Article IV of the Treaty, the crux of the Ilpolitical deal," states that I lnothing contained in the present Treaty" can be interpreted as 'a renunciation of any-claim to Antarctic territory, nor as:a I1dimunition1
of such a claim; Similarly, Article IV states that the Treaty cannot be interpreted as "prejudicing the position of any Contracting Party" toward any other claims, nor can subsequent "acts.and activities" enlarge or diminish existing claims or serve as a basis for any new claim.
The Treaty thus leaves the legal status of Antarctic territorial claims in a position of c arefully calculated ambiguity. The major benefit of this is that, by freezing the status quo with respect' to territorial claims without prejudicing any state's position, the Treaty allows all nations concerned to cooperate in the more constructive tasks o f scientific research and environmental conservation. As Canadian environmental specialist E. Fred Roots observes from the beginnings of discussion leading toward the Antarctic Treaty, science, international cooperation and maintenance of the peace were i n extricably linked. It1l The The benefits of this linkaae have been numerous and far-reaching international exchange of scientific information on Antarctica Freedom of sciencif ic investigation and the mandated under Articies I1 and I11 of the Treaty, have . led to impressive gains in understandins of the Antarctic environment. The griwth of Akarctic scientific programs, moreover, has led to the development of institutional machinery within the Treaty System to process and examine the results of scientific re search under the guidance of the Scientific.Committee on Antarctic Research, an independent'professional body composed of representatives of Antarctic Treaty Consultative Party states.
The Treaty parties also have shown remarkable concern and flexibility i n managing the fragile Antarctic environment conservation measures taken by the Antarctic Treaty Consultative Parties include the Agreed Measures forthe Conservation of Antarctic Flora and Fauna (1964 the Convention for the Conservation of Major 10. Debor a h Shapley, PD. c& p. 91 11. In Antarctic Treatv Svs tem:,An Assessment ob. cit, p. 184. i I 6Antarctic Seals (1972 and the Convention for the Conservation of Antarctic Marine Living Resources (1982 Many areas of the continent likewise have been designated as "Sites of Special Scientific Interest" or I1Specially Protected Areas." Certain other pioneering recommendations have made the first criterion to be applied to a new activity whether or not it will have an adverse effect on the environment-not whether it is profitable or in the interests of one or more governments.
None of these achievements would have been possible, however without the Treaty's provisions for demilitarization of the continent. These are reinforced by the most sweeping provisions for on -site inspection and verification contained in any post-World War I1 treaty, including free access to any area or installation on demand aerial inspection rights, and advance notification of any activities on the continent. Yuri M. Rybakov, a Soviet juris t and diplomat notes 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 t ime in history of a zone free from nuclear weapons.1 i OBJECTIONS TO THE TREATY SYSTEM Those nations currently attacking the Treaty System make a series of distinct but related objections to the Antarctica status quo Among them 1) Antarctica and its resou r ces, such as the seabed bevond national iurisdiction and outer mace. should Dronerlv be considered the "common heritaae of mankind Many international legal scholars argue that there is not much legal basis for this position. University of Wisconsin law pr o fessor Richard Bilder, for example, maintains that "there is as yet no coherent and generally recognized 'international law of common spaces'--particularly one that could persuasively be argued to be ius coaens or superior to all other international rules overriding the Antarctic Treaty or other arrangements If3 thus 12. Ibid p. 36 13. Richard Bilder, "The Present Legal and Political Situation" in Jonathan Charney, ed The New Nationalism and the Use of the Common SDaceS (Totowa, New Jersey: Allanheld Osmun p. 184 7- For.those nations claiming parts of Antarctica, moreover, the continent is definitely not ''beyond national jurisdiction as the seriousness with which these'claims are taken makes clear. In Argentina, explains American University professor Jack Child ItArgentines are taught from early childhood that their nation consists of three interlinked parts: mainland, Antarctic and insular Argentina.
To accept anything less than all. three parts f's to betray-"a: sacred trust to the fatherland Similarly, A ustralia's Antarctic claim has been incorporated into national legislation and is vigorously maintained by the Australian government Even some nations that supported the concept of the ''common heritage of mankind" in the context of the Law of the Sea emp h atically reject its application toiAntarctica. Example L. F. Macedo de Soares Guimaraes, a Brazilian diplomat, stated at an Antarctic Conference that though I Brazil has been a champion of the concept of the common heritage of mankind.applied to the seabe d beyond national jurisdiction it is not a concept to be applied automatically to any area not traditionally' subject to national jurisdiction instance, it should not be applied to Antarcticamtl For 2) The Antarctic Treatv is an exclusive club of nations d etermined to emloit Antarctic mineral resources, to the detriment of other nations' interests and the Antarctic environment.
The Antarctic Treaty is in fact a multilateral treaty to which any U.N. member state can accede. States party to the Treaty, moreov er, are very representative of the international community, both ideologically and geographically In fact, over 80 percent of the world's population is represented by Antarctic Treaty parties sure, the Treaty Consultative Parties have been negotiating a r e gime to regulate future mineral exploitation on the continent doing so, however, mainly out of foresight, to avoid an uncontrolled scramble for resources in the future. Economic gain is no near-term incentive for such a regime, for virtually all Antarctic experts agree that such exploitation is simply not feasible in the foreseeable future To be They are The general outline of this minerals regime, moreover, makes it clear that future commercial activity will be closely and extensively regulated the draft, explains with reference to the Convention on the Conservation of Antarctic Marine Living Resources The basic As New Zealand diplomat Chris Beeby, a principal author of 14. In International Studies Notes, 9 cit, p. 24 15. In Antarctic Treatv Svste m: An. A s sessment, OD. cit p. 342. 1 a- proposition underlying the CCAMLR--that activity is permitted until restrained-will be reversed: the only mineral resource activities that would confer title on the operator and might confer economic benefit ,will be prohibi ted unless specifically authorized Il1 3) The United Nations could manacre the continent and keeD the peace better than the Dresent system.
There is little if any justification for this view, given the well-documented and now broadly recognized difficulties the United Nations continues to have in managing its own affaire; How can the U.N. meet the chazlenges posed by a huge and complex ecosystem when it is unable to perform efficiently the tasks already assigned to it by its member states Nor d o es the U.N.Is specific record in either environmental affairs or peacekeeping support this contention The U.N. .Environment Program, for instance, has suffered from a politicized decision-making process 'in which the perceived needs oft the impoverished a re made into agenda items for transnational action.
The U.N. likewise has been of limited etffectiveness in keeping the peace and has played almost no role in preventing or settling the roughly 140 conflicts that have taken place since World War
11. In s ome cases, in fact, the U.N. has exacerbated regional tensions by providing aid and support'!.to terrorist organizations, particularly in the Middle East and southern Africa, and by l1globalizingl1 these tensions within the fora of the General Assembly an d Security Council approach is more effectiveh the international management of territories than the universalist approach exemplified by the U.N.
Explains Vanderbilt University law professor Jonathan Charney: Wnless there is a substantial change in the int ernational political picture the maximum opportunity. for creative development. of international law and institutions,will be found within the context of negotiations between limited numbers of nations which have identhfied, specific and direct interests i n the item under negotiation More generally, it is clear that the Illimited multilateral11 16. Ibid, p. 279 17. See George P. Smith 11 The U.N. and the Environment" in Burton Yale'Pines, ed A World Without A U.N Washington, D.C The Heritage Foundation, 19 8 4 18. The New Nationalism QD. cit, p. 231 94) There are serious and irreconcilable conflicts between the Antarctic Treatv and the U.N. Law of the.Sea Convention The Antarctic Treaty applies to the area south of 60 degrees latitude. This area includes part of the South Polar Sea and the deep seabed beneath it. Hence there is some jurisdictional overlap between the two agreements.- The Treaty Parties+have.repeatedly-emphasized however, that the Antarctic minerals regime will apply-only to Antarctica itself a n d'its continental shelf.- The parties even passed a resolution declaring that there will be no encroachment on, the deep seabed. As New Zealandls Beeby states The regime is likely, in fact, to contain .an all-embracing provision requiring.the commission t o cooperate with all interested international organizations, and more specifically, to develop a cooperative working relationship with any international organization having competence in mineral resources in areas adjacent to those covered by the regime 5) The Antarctic Treatv Consultative Parties consistentlv have ianored and refused to cooBerate with the U.N.
Despite their understandable misgivings about U.N. involvement in Antarctica, the Antarctic Treaty Consultative Parties always have acknowledged the legitimate interests of the United Nations. The Antarctic Treaty itself specifically states that the Treaty should further 'Ithe purposes and principles in the Charter of the United Nations" and declares that "every encouragement shall be given to the es t ablishment of cooperative working relations with those Specialized Agencies of the United Nations and other international organizations having a scientific or technical interest in Antarctica.Il This statement was reinforced at the first Consultative Part i es meeting in 1961, which passed a resolution obligating the Parties to establish such working relations. Subsequently, links have been forged with a number of- organizations. Points out Richard Woolcott Australia's permanent representative to the U.N.: I ' Although existing 1inks.are not highly formalized, practical working relations have already been developed with U.N. family organizations, such as the World Meteorological Organization (WMO), the International Telecommunications Union (ITU the Food and Ag r iculture Organization FAO the United Nations Environment Program (UNEP and the Intergovernmental Oceanographic Organization (IOC) of the United Nations Educational, Scientific and Cultural Organization UNESCO) I1 20 19. In Antarctic Treatv Svs tern An A s s e ss m e nt OD. cit p. 281 20. Ibid, p. 380.
The Food and Agriculture Organization, for example, has observer status at the Convention on the Conservation of Antarctic Marine Living Resources; while the Antarctic, Treaty Consultative Parties have committ ed themselves to keeping the Secretary-General of the United Nations informed of Antarctic developments and now do so on a regular basis I I CONCLUSION The Antarctic Treaty is by any measure one of the most successful international agreements of the post- World War I1 era. It has maintained the peace on a continent that was formerly a center of conflict. In so doing, it has made possible significant achievements in science and environmental conservation.
The current attacks on the Treaty System at the Unite d Nations and persistent suggestions of the Treaty's "illegitimacy" are based on a series of ideological assumptions which the United States rightly has rejected, and which cannot in any event be applied to the continent. Jose Sorzano, a former American D e puty Permanent Representative to the United Nations, counsels that it appears Malaysia seeks consensus and compromise only to raise an .issue that cannot be negotiated or compromised. r121 ideological attacks on the system can be expected to continue for a s long as the rhetoric of the New International Economic Order remains the language of the United Nations and for as long as politicization rather than creative institution-building and realistic development is the U.N.'s stock in trade Unfortunately, the The U.S. and its Antarctic Treaty partners thus should encourage other states to accede to the Treaty, while pressing for the removal of the issue from the U.N.'s agenda-before the threats to the Treaty System grow even more serious than they already are Thomas E.L. Dewey Policy Analyst L 21. Ibid, p. 419 11
