Cover Image

PAPERBACK
$113.25



View/Hide Left Panel
Click for next page ( 306


The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 305
21. The Antarctic Treaty System from the Perspective of a State Not Party to the System Zain Azruai The debate on Antarctica in the 1984 United Nations General Assembly was quite revealing and three elements in particular seem relevant to the present discussions. These are the following: First, the Antarctic Treaty consultative parties (ATCPs) were clearly determined not to widen or deepen any involvement of the United Nations (U.N.) in dealing with Antarctica; Second, the Nonconsultative Parties (NCPs) were not consulted in any meaningful way by the ATCPs; and Third, there was little "debate" as such, but dele- gations made statements at each other, which often consisted of restatements of well-known positions with little reference to opposing points that had been made. These three elements bring out in a graphic way certain fundamental problems in relation to the subject of Antarctica. The first of these elements relates to the assertion by the ATCPs, which emerged clearly during the debate, that they--and they alone--have the right to make deci- sions pertaining to Antarctica ("exclusives), that these decisions will cover all activities in Antarctica ("totals), and that these decisions are not subject to review or even to discussion by any other body ("unac- countable"). Here in fact is the fundamental point at issue between the ATCPs and the nontreaty parties (NTPs). The second element, which is linked to these, is the role of the NCPs; it was clear from the recent debate that the NCPs made no input whatever to the position taken by the ATCPs in dealing with a question that cannot be said to be scientific or technical in nature, requir- ing special expertise, but that was concerned with how there can be greater international involvement in 305

OCR for page 305
306 decision-making and management regarding Antarctica. Whatever may be the rights on paper of the NCPs, this was a disquieting illustration of the two-tier membership of the Antarctic Treaty System in practice. The third element is the attitude of the ATCPs, which clearly regarded the debate as an irrelevant nuisance to their pursuit of the proper management of Antarctica; indeed, a number of them made the sentiment explicitly clear during the course of the debate that the sooner U.N. discussion of the subject was terminated the better. From all the above, it is clear that the recent U.N. debate did not make a constructive contribution to a dialogue on Antarctica. It did not examine questions such as the following: Who has the right to decision- making and management of Antarctica? And on what basis? What precisely is the role of the NCPs? How should the international community proceed to deal with the differ- ences of view between the ATCPs and NTPs? Instead, the debate was, for the most part, little more than a replay of assertions and statements that have been made fre- quently in the past. But perhaps the present workshop will demonstrate that diplomacy is too serious a subject to be left only to diplomats' On the first question, while it is obvious that I should not pretend to be able to make the case for the ATCPs, it is necessary for me to do so for the purposes of this discussion because the present system of decision- making and management in relation to Antarctica is so anomalous in terms of normal contemporary practice that it, rather than any questioning of it, needs to be jus- tified. At the risk of appearing presumptuous and simplistic, therefore, I will assert that the basic case that the ATCPs advance for insisting on their rights to decision-making in Antarctica, which are exclusive to themselves, which are total--to cover all aspects of Antarctica--and which are not subject to review by any authority, is based on the argument of their expertise and experience in Antarctica. The management of Ant- arctica, it is said, is sophisticated stuff, and only those states that have real knowledge, based on actual experience in Antarctica, should have the right to make decisions relating to it. By the same token, it is obvious that these states cannot be answerable to that vast majority in the international community who have no (or insufficient) knowledge or expertise of Antarctica. This has to be the core of the ATCP case, because no other argument can seek to justify their claim to extra-

OCR for page 305
307 ordinary and unique rights over Antarctica. The other argument that is sometimes advanced, that the current system "works, n cannot be the foundation of an exclusive "right, n because it opens itself to the response that it would require sanction from a higher authority, which could subject it to review to ensure that it works better. Nor can the justification be based on the claims asserted by the ATCPs for the obvious reason that these claims are not recognized by an overwhelming majority of the inter- national community. Sometimes reference is also made to the concept of "trusteeship, which the ATCPs are said to exercise on behalf of the international community in Antarctica. But, of course, trustees cannot be se~f- appointed, they should have no material interest in the trust property, and they must be "accountable." It is clear, therefore, that the ATCPs' case is a right based on "expertise. n Put in that way, such an assertion must surely be seen as extraordinary, particularly in the context of contemporary international relations. THE RESPONSE OF THE NONTREATY PARTIES ( NTPs ) The response of the NTPs to the assertion of this "right n by the ATCPs can take either of two forms. One consists of simply denying that there exists or can exist any such right unless it is conferred by the international com- munity; by implication, this leads to the concept of an international, universalist regime to replace the current Antarctic Treaty System. The other consists of accepting the reality of the present situation, legal and factual, but asking neverthe- less: Who gave the ATCPs the right that they assert? And by what authority? What is the justification for the notion of right based on expertise? Is this privileged status for the ATCPs acceptable to the international community today? It then goes on to suggest that, as a practical matter, the whole subject should be examined in a forum in which the interested parties would be on an equal footing, with the implication that the present system may be changed or amended, which would make it more acceptable to the international community as a whole. It is unfortunate that every questioning of the current Antarctic Treaty System is read, deliberately or otherwise, by the ATCPs as meaning only the first alter- native. In fact, one of the disquieting features of the recent debate was the reaction of extreme sensitivity and

OCR for page 305
308 resentment on the part of the ATCPs regarding any ques- tioning of the current antarctic system. Implicit in that attitude is that any such questioning can come only from irresponsible or ignorant elements. The case for this first alternative is in fact quite straightforward. Its proponents simply assert that the days when rights may be asserted on grounds such as dis- covery, occupation, contiguity, inherited rights, geo- logical affinity, possession--or of nexpertisen--are past; they go on to point out that Antarctica has no permanent human habitation, that the sovereignty claims are not recognized by the overwhelming majority of the international community (not to mention the Problem of the overlapping claims, the existence or an unclaimed sector, and the assertion by two states of a basis of claim); they then conclude that Antarctica must therefore be the common heritage of humankind to be governed by an international regime duly constituted by the international community. This case is as logically self-contained and complete as that of the ATCPs in asserting rights based on expertise and experience. The second alternative referred to above takes the approach not so much of "rights. as of "interest." This _, approach begins from the basic question: Does humankind as a whole have a legitimate interest in Antarctica? If so, how might humankind's interest be best served? More specifically, what should be the objectives of a regime which would best serve humankind's interest? What should be the nature of a regime that would best achieve these objectives? And, to bring the discussion to a more con- crete level, does the present Antarctic Treaty System meet those objectives? If there are deficiencies, what are the possible remedies? Linked to all these questions is a procedural issue: How best might these questions be discussed? Its proponents respond to these questions as follows: First, they assert as indisputable that humankind as a whole has a legitimate interest in Antarctica, in how it is governed and managed. This follows from the fundamen- tal fact that the overwhelming majority of the inter- national community does not recognize the sovereignty claims. Furthermore, Antarctica is not a minute atoll of no significance; it occupies one tenth of the surface of the globe. Its location, vastness, fragile ecosystem, and rich marine and possibly mineral resources have great significance for international peace and security,

OCR for page 305
309 economy, environment, scientific research, meteorology, telecommunications, and so on. These are clearly matters of global interest and fall within the ambit of concern of the international community. Second (in response to the question: How might human- kind's interest be best served or, more specifically, what would be the objectives and the nature of a regime that would best serve this interest, bearing in mind the special characteristics of Antarctica?), they assert that, among other things, the regime should preserve international peace and security, it should promote and facilitate scientific research and exchange, it should protect the environment, and it should ensure that the fruits of any exploitation of Antarctica's resources be equitably shared by humankind. They assert further that a regime serving these objectives should be one in which member states of the U.N. as well as the relevant special- ized agencies and other international organizations are able to play an appropriate role and one that is account- able to the U.N. as the most universal and representative international organization. Third (in testing the current regime of the Antarctic Treaty System against these objectives), they assert that the rights of the ATCPs--exclusive, total, unaccountable-- are the major flaws of the current system, while at the same time they do recognize its many practical virtues. There is simply no denying this deficiency in the current system. Indeed, as has been pointed out earlier, the ATCPs make no attempt to do so; rather, they seek to justify the system on grounds of expertise and experience and, at the same time, to cushion it by asserting that it works (but without explaining why it cannot work in a more open or universal system) and by pointing to the participatory role of the NCPs and of certain inter- national organizations. (The latter justification is asserted, however, with some limitations and only after 23 years of the operation of the Antarctic Treaty and-- dare one suggest it?--after the validity and fairness of the present systems have been called into question by a number of interested NTPs.) The issues thus stated may be examined further by considering the notion of expertise itself, based on experience and technological know-how, which serves as the essential justification for the rights that the ATCPS enjoy. If this notion was applied in relation to the recent negotiations leading to the 1982 U.N. Convention on the Law of the Sea (UNCLOS), what was the expertise of

OCR for page 305
310 the overwhelming majority of the member states in rela- tion, let us say, to seabed mining to justify their participation in those negotiations? Whatever views may be held on UNCLOS (and the 159 signatories cannot all be marching out of step), it has not been generally denied that the member states of the U.N. had a "right" to participate in those negotiations based not on their "expertise" but on natural justice and their material "interest" in the issue. Likewise, it can be asked without, I hope, pressing this argument too far: What was the expertise of the colonial peoples to be involved in the decolonization process? They certainly had no exper- tise in the complexities of governing or managing a country; yet I believe that no one today would seriously deny their right to do so. Indeed, developments in the norms of international life in the past four decades have advanced us from the concept of right based on expertise in dealing with questions of peace and security, disarma- ment, international trade and finance, and decolonization, to a right based on natural justice and interest. Why cannot this conceptual progress in the management of international affairs be extended to Antarctica? In asserting this, one is not necessarily asserting a universalist dogma (one country, one vote), which, after all, does not apply in a number of important inter- national institutions such as the U.N. Security Council, where the veto exists; the World Bank and the Inter- national Monetary Fund, which have weighted voting; the International Seabed Authority and various commodity arrangements, where the interests of specific groups-- producers, consumers, and other parties most directly affected--are taken into account. This takes us into the area of "specials rights as distinct from "exclusives rights. Accepting, without necessarily admitting, that some special expertise is required to make decisions affecting peace and security, the environment, and scientific research in Antarctica, should it be exercised exclusively by the ATCPs? And what is the justification for extending this right to cover every aspect of activity in Antarc- tica, including the possible exploration and exploitation of its mineral resources, which involves, but is not limited to, the question of the equitable sharing of its benefits, on which the expertise--let alone the exclusive expertise--of the ATCPs is not self-evident? And, finally, what is the justification for the exercise of

OCR for page 305
311 such rights in a manner unaccountable to the rest of the international community? In the light of all the points made above, the second element mentioned at the beginning of this discussion, namely, the precise role of the NCPs, falls into place. Here recent developments within the Antarctic Treaty itself, in the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), and in the minerals negotiations allowing the participation of the NCPS must be welcomed. Nevertheless, it must also be noted that these developments appeared to have taken place as reluc- tant concessions, which had to be extracted painfully after more than two decades of the functioning of the treaty itself and, with regard to the CCAMLR, to require a prior acceptance of the complete validity of the Antarctic Treaty itself. Also, there are specific gaps such as the exclusion of the U.N. Environment Program and some other international organizations, and, even more pointed, the exclusion of the NCPs from the so-called heads-of-delegation meetings, the justification for which is not easy to see. But perhaps these specific omissions may be remedied over time. Nevertheless, from the point of view of an outsider, the role, or rather the non-role, of the NCPs in providing inputs to the position taken by the ATCPs during the recent U.N. General Assembly debate was not particularly reassuring, and the basic question remains, therefore, of their precise role and effective- ness more generally in the Antarctic Treaty System. Finally, and most immediately, there is still the question: Where do we go from here? On this point, the experience of the recent General Assembly debate was again disappointing. In this connection, it may be recalled that a proposal was put forward for the creation of a U.N. Committee on Antarctica. This was firmly resisted by the ATCPs, despite lengthy and elaborate explanations that such a committee would not require any of the parties to give up its position on the appropriate system for the government of Antarctica and that the committee was not intended to be a parallel system or to be the thin edge of the wedge to supplant or replace the current system. Rather, it was intended as a forum in which all participants would be on an equal footing and that would examine in depth issues that are not discussed in the current system. Principally these issues would include the following questions: How can the achievements of the Antarctica Treaty System be preserved and, at the same time, meet the legitimate interests of the inter-

OCR for page 305
312 national community as a whole in Antarctica? What is the status and legal significance of the UNCLOS and the International Seabed Authority on the situation in Antarc- tica, more specifically in relation to the exploration and possible exploitation of its minerals resources? This proposal for the creation of a U.N. committee was not pressed, and, instead, the suggestion was made that member states be invited to comment on the U.N. Secretary- General's study on Antarctica. Comments would be circulated in advance of the fortieth session of the U.N. General Assembly of 1985 in order to facilitate discussions. But even this suggestion was adamantly opposed by the ATCPs. It is difficult to resist the conclusion from these developments that the basic attitude of the ATCPs is that the U.N. has no business to be dealing with Antarctica at all. Such an attitude, if true, is surely unfortunate. The fact is that serious issues are at stake with regard to Antarctica, which involve recognizing the realities of the situation, both legal and factual, and the legitimate interests of all parties. These cannot be resolved either by a simplistic, universalist approach or by an adamant attitude that the ATCPs are better informed. All sides need to exercise forbearance, refrain from casting aspersions on one another's motives, and examine issues with an open mind, in the full knowledge that there are no easy answers to the complex question of how Antarctica might best be governed and managed in the interest of all humankind. I should like to elaborate on my prepared remarks by stressing the strong desire of Malaysia and of other countries raising the question of Antarctica in the U.N. to be consulted seriously on the subject. I object to the characterization of the Malaysian initiative by some representatives of the ATCPs as having as its sole aim the dismantling or replacement of the Antarctic Treaty System. The fact is that in Antarctica, the ATCPs enjoy extraordinary rights, which are exclusive, total, and unaccountable. While I am aware of the ATCPs' arguments for the assertion of these rights, I am not convinced that the arguments justify the unique character of the rights in the circumstances of Antarctica; that is, there is no agreement regarding sovereignty and developments in Antarctica, which are matters of global concern. My final point relates to the future of the antarctic debate. I was disappointed at the rejection-of the Malaysian initiative to establish a special U.N. committee

OCR for page 305
313 on Antarctica during the fall 1984 U.N. General Assembly Malaysia's alternative effort met with equally strong resistance from the ATCPs: a call for comments on the U.N. antarctica report, which could have served as a basis for discussion at the 1985 U.N. General Assembly. My question is: How can governments find a forum in which they can, on equal footing, examine in depth the issues raised in the U.N.? I do not believe that it is appropriate simply to ask Malaysia and others to put forward specific proposals to be discussed at some unspecified time in the future, because that could freeze Malaysia into the stated position and she would be unable to negotiate effectively. . This contribution is presented by Ambassador Zain in a personal capacity.

OCR for page 305