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3. Juridical Nature of the 1959 Treaty System Yuri M. Rybakov December 1984 marked 25 years since the signing of one of the most significant international documents of our time-- the Antarctic Treaty. Preceding that event was a long era of search, discovery, and the beginning of the exploration of that southern-continent. There had been earlier attempts at theoretically predicting Antarctica's existence and discovering it. As early as 1761 the great Russian scientist, Lomonosov, put forward a bold hypothesis, which later proved to be basically correct, about the possible existence, around the South Pole, of islands and a vast body of land mantled in thick and perennial snows. Later seafarers made numer- ous attempts to find the southern continent, but for a long time all of them failed. Today, it is an indisputable fact Russian navigators discovered Antarctica and thus launched an era of scien- tific research and exploration of the new land. The first Russian Antarctic expedition of 1819-1821, was headed by naval officers Bellingshausen and Lazarev. It belongs in the history of great geographical discoveries, and the scientific research carried out by the expedition was also of importance. In recognition of the Russian navigators' accomplishments, one of the South Pole seas was named after Bellingshausen. These Russian discoveries and the first scientific research carried out in the Antarctic attracted the attention of many countries to the region, which went beyond purely scientific and exploratory interests. In the early twentieth century a number of states sought a territorial division of Antarctica. Claims were made to several large areas of the continent, covering up to four fifths of its territory. Moreover, three of the claimed areas overlapped, which produced sharp tensions among the 33

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34 claiming states, leading to the demonstration of military force. These territorial claims were declared unilaterally, and many states, including the United States, Japan, Belgium, the Polish People's Republic, and Brazil, did not accept them. Nor has the USSR ever recognized any territorial claims, especially because it was the Russian sailors who first discovered Antarctica. The USSR'S position of principle on this issue is reflected in exchanges of notes and other documents. For example, in response to Norway's statement claiming sovereignty over Peter I island, discovered by the Russian expedition of Bellingshausen and Lasarev, the Soviet government in a note dated January 27, 1939, informed the government of Norway that it did not recognize the Norwegian claim to that island and reserved its position concerning state sovereignty over the lands discovered by Russian navigators. The end of World War II witnessed a dramatic revival of interest in Antarctica. From July 1957, to December 1958, twelve countries participated in an extensive scientific research program carried out in the region within the framework of the International Geophysical Year IGY). Most of the 12 states, Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the USSR, the United Kingdom, and the United States organized expeditions to Antarctica, and together they established 40 scientific research stations. The Soviet Union established six stations, and Soviet scien- tists made a major contribution to antarctic science. They conducted large-scale exploratory work in the least accessible areas of the continent, in particular in the area of the geomagnetic pole. The IGY was a major global scientific endeavor, and the routine antarctic observa- tions conducted during it continue to this day. Broad international cooperation in exploring Antarctica within the IGY framework in the 1950s served as an impetus to the conclusion of an appropriate international legal agreement in Antarctica. The position of principle of the Soviet Union as regards the drafting of such an agreement was reflected in particular in a note sent to ~ _ , , . _ the U.S. Department of State on May 2, 1958. In the opinion of the USSR, a future agreement would have to be based on the principles of using Antarctica exclusively for peaceful purposes and of freedom of scientific research in the entire region. The note recalled the outstanding achievements of Russian explorers in

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35 discovering Antarctica and emphasized that the Soviet Union reserved all the rights arising from discoveries and research done by Russian navigators and scientists, including the right to make appropriate territorial claims in Antarctica. In 1958 and 1959, preliminary talks were held in Washington, D.C., with active participation of the USSR, which produced the international Antarctic Treaty that was signed on December 1, 1959, and entered into force on June 23, 1961. The drafting and conclusion of the Antarctic Treaty were memorable international events. In its 1984 message of greetings to the members of the antarctic expeditions of the countries that had taken part in drafting the treaty, the Soviet government noted that the treaty would contribute to the further develop- ment of cooperation among states in exploring the region and could provide a good example for settling inter- national problems in the interests of universal peace. At the 1960 Meeting of the Political Consultative Committee, the states party to the Warsaw Pact described the document as an important agreement concerning the peaceful use of Antarctica. The Antarctic Treaty is open for accession by any state. At present, more than 30 states, big and small, situated on every continent of our planet and represent- ing different social and economic systems, have become parties to the treaty; they include the USSR, the German Democratic Republic, Poland, Romania, the United States, Czechoslovakia, the United Kingdom, Argentina, Brazil, Norway, Peru, Papua New Guinea, France, the Federal Republic of Germany, and Japan. India and the Peoples Republic of China acceded to the treaty in 1983, and Hungary, Cuba, Finland, and Sweden did so in 1984. PEACEFUL USE The Soviet Union attaches great importance to the Antarctic Treaty as an international legal instrument aimed at curbing the arms race. In accordance with the treaty, a vast continent together with its neighboring islands and adjacent seas is placed totally outside the sphere of military preparations of any form whatsoever, including nuclear-weapon tests. For the first time in the history of international relations and international law, such a region has been established by treaty as a zone for peaceful research and scientific cooperation among states.

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36 Article 1 of the treaty, elaborated with the active participation of the USSR, envisages that Antarctica will be used for peaceful purposes only. Any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, and the testing of any type of weapon, are prohibited in the region. According to the Antarctic Treaty, its provisions apply to "the area south of 60 South Latitude, including all ice shelves, but nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of the rights, of any State under international law with regard to the high seas within that area." (Article VI) Of particular importance today are the provisions of the treaty prohibiting any nuclear explosions and the disposal of radioactive waste material in Antarctica (Article V). Originally there were proposals to permit nuclear explosions subject to prior notification of all parties to the treaty and consultation with them. Adop- tion of these proposals would have been tantamount to the legislation of nuclear-weapon tests, because technically it is difficult to distinguish peaceful explosions from military blasts. More'over, nuclear-weapon tests in Antarctica would irreparably damage its unique environment and could lead to unpredictable harmful consequences on a global scale. It was due to the tireless efforts of the Soviet Union that prohibition of any nuclear explosions, both military and peaceful, and of the disposal of nuclear waste was embodied in Article V of the treaty. The totality of the provisions of Articles I and V, prohibiting in particular any measures of a military nature and any nuclear explosions, bestow on Antarctica a status not only of a demilitarized area of the globe but, for the first time in history, of a zone free from nuclear weapons. This, of course, does not preclude completely the possibility of using nuclear energy, such as the use of nuclear power stations. Thus the nuclear-free zone and the zone of peace created by the Antarctic Treaty serve as good examples for concluding similar agreements with respect to other regions of our planet and around it. For instance, the Tlatelolco Treaty was signed in 1967. Under that treaty, the Latin American continent became, de jure and de facto a zone free from nuclear weapons. In the present-day international situation, character- ized by heightened tensions and a growing threat of nuclear war with all its disastrous consequences, the

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37 de-escalation of military presence and the creation of nuclear-weapon-free zones and zones of peace in various regions of the globe is acquiring special significance. Resolutely opposing militarization of ocean expanses, the Soviet Union is in favor of the largest possible part of the world ocean becoming a zone of peace in the near - future. In particular, the Soviet Union supports the proposal to create such a zone in the Indian Ocean, a _ . _ vast geographical region directly adjoining Antarctica and of exceptional importance for world navigation. Turning the Indian Ocean into a zone of peace corresponds to the aspirations of a majority of states in the region, which prefer lowering the level of military activity and dismantling all foreign bases in the area. SCIENTIFIC INVESTIGATION The principle of freedom of scientific investigation in Antarctica embodied in Article II of the Antarctic Treaty is highly important. For more than 20 years now it has served as a basis for successfully developing fruitful international cooperation in this inclement and almost inaccessible region of the world. The Antarctic Treaty is rightfully considered to be a unique example of international cooperation among states and with inter- national organizations. Any state that is a party to the treaty can benefit from scientific data and information obtained by the antarctic expeditions and permanent scientific stations. Even now this information is of considerable practical value for the advancement of knowledge in various fields and for a better understanding of the phenomena and processes taking place on our planet. is in the interest of all mankind. ~ This undoubtedly The signing of the Antarctic Treaty became an important and effective means to prevent the occurrence of disputes, tensions, and conflicts between states in connection with previously made or potential territorial claims in the region. The 1959 treaty freezes the territorial claims (Article IV). No less important is the treaty's role in preventing the spread to the Antarctic of crisis situations arising in regions that are in the immediate vicinity of the sixth continent. As practical experience has shown, the 1959 treaty serves as a reliable barrier against extending hostilities to Antarctica and thereby violating its status

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38 as a zone of peace. This was borne out by the situation which developed over the Falkland (Malvinas) Islands in 1982. INSPECTION In order to promote its objectives and ensure the obser- vance of its provisions, the Antarctic Treaty provides for the possibility of carrying out inspections (Article VII). Each of the consultative parties can designate observers who have complete freedom of access at any time to any or all areas of Antarctica, including all stations, installations, and equipment within those areas. Ships and aircraft at points of discharging or embarking cargoes in Antarctica are also open to inspection. CONSULTATIVE MEETINGS In accordance with established international practice, the fulfillment of the provisions of a given international agreement as well as the control over compliance with them and the coordination of states' efforts to translate them into reality are entrusted, as a rule, to a certain body or mechanism, the creation of which is envisaged in such an agreement. Under the Antarctic Treaty, the mech- anism in question is the consultative meeting of states that are parties to the treaty. Under Article IX, the right to participate in con- sultative meetings belongs to the original contracting parties to the treaty as well as to the contracting parties that conduct substantial scientific research activity in Antarctica, establishing scientific stations and dispatching scientific expeditions there. The latter parties are entitled to participate in the meetings during such time as they demonstrate their interest in research in Antarctica. After the establishment in 1977 of a permanent scien- tific station named Henrys Arctowski, n Poland became a consultative party. In 1981, when the station "George van Normaier~ became operational, the Federal Republic of Germany also obtained this right. In September 1983, India and Brazil, which set up their scientific stations in Antarctica, acquired consultative status. Thus, at present more than half of the parties to the treaty--16

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39 states--are consultative parties; practice demonstrates that existing procedures envisage real possibilities for any state acceding to the Antarctic Treaty to obtain consultative status. Consultative meetings deal with matters related to governing the activities of states in Antarctica, includ- ing its use for peaceful purposes only, the undertaking to facilitate scientific research and international scientific cooperation in the process of studying the continent, the exercise of the rights of inspection there, and the preservation and conservation of living resources. As a result of discussions at the consultative meetings, the parties adopt recommendations, which are subject to approval by all states taking part in their elaboration. Thereafter they become standard-setting provisions, building on and complementing the articles of the Antarctic Treaty. One of the fundamental provisions of the internal regulation of consultative meetings--the Rules of Procedure--is the rule under which the adoption of recommendations requires the unanimous approval by all states participating in the meeting. The principle of consensus as a method of elaborating and adopting decisions has proved to be effective and efficient. It is of great importance for all consultative parties and reflects the specific nature of regulating the problems of Antarctica in terms of international law. The principle of consensus used in consultative meetings actually means that no decision may be adopted unless it suits every party. This, in turn, not only creates a businesslike atmosphere during the discussion of various issues but it also guarantees the elaboration of well-balanced recommendations and decisions, which reflect the opinions and correspond to the interests of all states participating in consultative meetings. The additions to the Rules of Procedure adopted by the twelfth consultative meeting, held in September 1983 in Canberra, are of great importance. They determine that the parties to the treaty that do not have consultative status may participate in consultative meetings as observers. Participation of observers in the meetings convened within the framework of the treaty testifies to the open nature of such meetings, the goodwill of the consultative parties and their desire to show the inter- national community the positive nature of the recommenda- tions worked out in the meetings for the benefit of all mankind.

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40 RECOMMENDATIONS Since the Antarctic Treaty's entry into force, 12 con- sultative meetings have been held, which have adopted more than 100 different recommendations. The recommendations relate to humans' multifaceted activities in Antarctica. In particular, they regulate questions of radio and tele- communications, tourism and nongovernmental expeditions, information exchange, use of radioisotopes, designation of specially protected areas, use of scientific research rockets, introduction of animals and plants for laboratory research, cooperation in transport, human impact on the antarctic environment, and many others. Taking into account the unique antarctic environment and its highly sensitive and fragile fauna and flora, the third consultative meeting held in Brussels in 1964 adopted the Agreed Measures for the Conservation of Antarctic Fauna and Flora (Recommendation III-8). Under Article VI of the Agreed Measures, it is pro- hibited within the Antarctic Treaty area to kill, injure, or chase any of the native mammals or birds without special permission. Appropriate measures should be adopted with a view to minimizing any harmful inter- ference with normal conditions for mammals and birds. this context, "harmful interference" means: allowing dogs to run free; flying helicopters or other aircraft in a manner that would unnecessarily disturb birds and seal concentrations; use of explosives or discharge of fire- arms (Article VII). The Aareed M"A.~]r-C ~1 ~^ I; obligations regarding measures to reduce water pollution along the coasts and ice shelves, provide regulations for the introduction and keeping of animals and plants in Antarctica, and establish precautions against accidental introduction of parasites and disease into Antarctica. Bearing in mind the increase over recent years in the number of nongovernmental expeditions to the Antarctic Treaty area and the number of accidents resulting there- from, the consultative meetings give careful consideration to the impact of tourism and adopt appropriate recommenda- tions. In this context, great emphasis has been placed on the advance exchange of information on planned activities. It has traditionally been a principle of antarctic activities to render every possible assistance to antarctic expeditions in emergency circumstances. Unoccupied buildings and refuges exist there that can be used by any expedition in case of an accident. _ ~ ~ ~ & it, ~ _ ~ & In However,

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41 in such cases, the authorities that maintain the building or the refuge must be notified of the manner in which those facilities were used. A manual has been drawn up for tourists visiting Antarctica, focusing particularly on measures to preserve the unique environment of the region. The consultative meetings have also adopted a pattern for information exchange carried out annually before November 30. The information thus exchanged includes the timing of expeditions; routes, types, and equipment of vessels, aircraft, and other means of transportation; the names and positions of bases and support stations; the names of persons in charge of those bases; the functions, numbers, and specialties of station personnel as well as the means of rescue available in case of an accident (medical and transportation services and refuges) together with other data and characteristics. The information provided also covers the intention to use radiosondes and research rockets (including geographical coordinates of the place of launching, the direction of launching, the planned maximum altitude, and the purpose and details of the research program). Judging by practical experience, all the recommenda- tions adopted by the consultative meetings have an important role in further regulating the antarctic activities of states. They contribute to setting up, developing, and deepening mutually beneficial cooperation in this area of our planet characterized by exacting conditions and difficulty of access on the one hand and extreme vulnerability on the other. ADDITIONAL CONVENTIONS In 1978, the Convention for the Conservation of Antarctic Seals (Seals Convention) was worked out within the frame- work of the consultative meetings. It provides inter- national legal protection for this important species of antarctic fauna, which was almost exterminated at one time. Further efforts by the consultative parties led them to the formulation and adoption in 1980 of the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). Its main objective is to ensure conservation and rational use of marine living organisms to the south of the so-called antarctic convergence line. This line, sometimes referred to as the antarctic polar front, is a

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42 composite geophysical border where warm northern waters mix with cold southern waters. This accounts for their high biological productivity. The CCAMLR is open for accession by any state. At the end of 1984, its membership included 15 states, the USSR being one of them, and the European Economic Community (EEC). Sweden, Spain, Uruguay, the Republic of Korea, and India acceded to it in 1984-1985, and Brazil has initiated the process of doing so. The main working bodies estab- lished under it are the Commission on the Conservation of Antarctic Marine Living Resources, the Scientific Commit- tee and the secretariat. The commission's headquarters is located in the city of Hobart on the Australian island of Tasmania. Since the convention's entry into force in 1982, annual sessions of the commission and the scientific committee have been held to work out provisions concern- ing the commission's secretariat staff, financial regula- tions and rules of procedures as well as the headquarters agreement and certain other documents. It must be noted that under Article XII of the CCAMLR, the commission's decisions on matters of substance, like the recommendations of the consultative meetings, are adopted by consensus. Using this method, the commission has already approved an interim agreement between the government of Australia and the commission regarding its privileges and immunities, the budget of the commission, a procedure for appointing an executive secretary, and the commission's financial regulations. Though it came into force only recently, the CCAMLR has already proved to be an effective instrument of cooperation among states concerned in the conservation, rational use, and study of antarctic marine living resources. This mechanism for international cooperation in the study and rational use of marine living resources in the region, which has been established on the basis of the Antarctic Treaty, serves the interests of all human- kind and is proving in practice its efficiency and reliability for the development of such cooperation in the future. Pursuant to Recommendation XI-1 of the eleventh consultative meeting under the Antarctic Treaty, the consideration of questions related to an antarctic mineral resources regime is now under way. While it is not yet a question of beginning industrial exploitation of antarctic minerals (scientists and experts from various countries regard this as a remote possibility), it is not only feasible but also desirable to establish

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43 an appropriate international legal regime before any state considers exploiting the mineral resources in the region. A reliable barrier must be raised against any uncontrolled activity with respect to these mineral resources, and the unique antarctic environment with its dependent ecosystems must be preserved for present and future generations. An international legal regime to further these ends should not be in contradiction with the Antarctic Treaty; it should be fully based on its provisions as their logical continuation, enriching their substance and thus promoting the consolidation of this important international instrument. The existing geophysical, geological, and geochemical methods as well as powerful drilling equipment enable modern science prospecting and exploration for practically all types of minerals. However, knowledge of Antarctica is insufficient at present to allow fully substantiated estimation of its mineral resource potential. The question of mineral resources in Antarctica was discussed for the first time at the sixth consultative meeting held in Tokyo in 1970. Later on, a number of recommendations were adopted. The ninth consultative meeting, for example, took a decision establishing a moratorium on any activities relating to the exploitation of mineral resources of Antarctica until an appropriate international legal regime was elaborated that would adequately regulate such activities and provide proper norms to protect the unique antarctic environment and ecological systems dependent on it. Of special significance were the decisions taken by the eleventh consultative meeting held in Buenos Aires in the summer of 1981, which adopted Recommendation XI-1. This treated the elaboration and establishment of an international legal regime for antarctic mineral resources as a substantial measure that would develop and strengthen the system of the Antarctic Treaty. Moreover, the Buenos Aires meeting recognized the necessity of convening a special consultative meeting to urgently elaborate an appropriate regime, determine its form, including the question of the advisability of setting up an inter- national body, and establish a procedure for conducting further negotiations. Several sessions of the special consultative meeting have already been held. They have considered questions of the regime's scope of operation, the concept of resources to be regulated by it, and the establishment of stages of future activities in the field of mineral

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44 resources, among other issues. Most delegations believe that the regime should be based on the principles and purposes of the Antarctic Treaty and take the form of an international convention. To ensure its successful functioning, an organizational coordinating mechanism should be created along the lines of bodies set up in accordance with CCAMLR. Actively participating in the elaboration of an international legal regime for the possible development of mineral resources in Antarctica in the future, the Soviet Union seeks to establish in the field a firm international legal order that would preclude any arbitrary action prejudicing the interests of other nations of the world. The Soviet Union would like to see the regime for the development of mineral resources in Antarctica codified in a special international instrument and fully based on the principles of the Antarctic Treaty, which guarantees the use of the region for peaceful pur- poses only. The elaboration of an appropriate instrument would considerably strengthen the system of the Antarctic Treaty, which serves the interests of all humankind. It should be stressed in this connection that no activities relating to industrial development of Antarctic mineral resources, in accordance with the decisions of consulta- tive meetings, can be carried out until a proper international legal regime adequately regulating such activities is established. During the period of almost 25 years in which the Antarctic Treaty has been in operation, joint efforts have helped to make a really gigantic leap forward in the scientific studies of Antarctica. The voluminous infor- mation obtained and processed in the fields of meteor- ology, oceanology, physics, and atmospheric phenomena has made it possible, in particular, to better understand the essence of global climatic processes and to forecast them with greater precision. Fundamental discoveries in biology, glaciology, geography, geology, and other natural sciences have been made, which are of great significance not only for identifying laws of Antarctica's nature, but also for understanding the evolution of the planet as a whole. Annually, many states send to the sixth continent scientific research expeditions that have at their dis- posal up-to-date technology and sophisticated equipment. This development of broad international and mutually beneficial cooperation in Antarctica has become possible due only to the 1959 treaty, a unique international legal instrument whose effectiveness has been tested and borne out by the entire course of its history.

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45 The task of comprehensive strengthening of the Antarctic Treaty has of late acquired particular urgency and relevance. This is explained by the objectively harmful intentions of some states to revise this important international treaty. The USSR is resolutely opposed to any attempts aimed at revising this important international treaty, no matter what pretexts are used to justify them. Such attempts are fraught with grave negative consequences not only for the countries adjacent to the antarctic region but for humanity as a whole. First and foremost, they can damage the regime of exclusive peaceful use of Antarctica established by the treaty, which undoubtedly, would negatively affect the international situation. The result could be that Antarctica, a zone of peace and fruitful cooperation among states with different socio- economic systems, would turn into a zone of friction and dangerous international conflicts. A new dimension would be added to the acute struggle among states that assert claims to antarctic areas, the issue now frozen by the treaty. It is not the erosion of the Antarctic Treaty System but accession to it by interested states that will guarantee the future continued use of this important region of the globe for the benefit of all humankind. Moreover, undermining the treaty would mean giving a free hand to those who, to placate their monopolies, seek to develop mineral resources in Antarctica without any prior arrangements, outside any regime. This will inevitably lead to uncontrolled and rapacious exploita- tion of the above-mentioned resources to the detriment of the continent's unique nature and its fauna and flora. The significance of the treaty can hardly be over- estimated, especially in the present-day tense inter- national situation. The provisions of the treaty pro- hibiting any measures of a military nature in Antarctica, including nuclear explosions, make it possible to place a reliable barrier to prevent the spread of the arms race to this region. The Soviet Union is in favor of strengthening the Antarctic Treaty in every possible way as a major international legal instrument of today, aimed at maintaining peace and security both in the Southern Hemisphere and all over the globe.

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