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23. The Antarctic Treaty System from the Perspective of a New Consultative Party L. F. Macedo de Soares Guimaraes In principle, a new consultative party should see the Antarctic Treaty System (ATS) from the same perspective as do the other Antarctic Treaty consultative parties (ATCPs), since it adheres to the spirit as well as to the letter of the treaty and carries out activities with the same purposes in mind. There are, however, some differ- ences that relate to the specific situation of the new ATCP regarding its economic and scientific development as well as to the evolution of the ATS since its inception. In this sense there is not much to say about the treaty itself, its positive qualities and possible deficiencies. It would be more interesting to examine how this new ATCP inserts itself into a system that has attained maturity but is still evolving. This leads me to describe the way the new ATCP (in this case, Brazil) has taken to reach that position and its views on how it interacts with the other ATCPs inside the system. Let us, then, start with a historical resume. Brazil conducted research projects in the south Atlantic during the International Geophysical Year (IGY) but did not send an expedition to Antarctica. I could not find any document stating a clear decision on this point, but it is not difficult to guess the reason. In 1957-1958, the building of Brasilia, the new capital, was at its most feverish. Not only did this construction represent a huge effort in itself; it also engrossed the entire country, its government, and its population as a major concern. Brazil was going through what could be called a Buddhist phase--it was looking at its own navel. The new capital was the symbol of national integration, the interiorization of the country, the effective economic linkage of the western and northern regions with the 337

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338 industrialized and more densely populated center-south. Anyone who at that moment suggested an expedition to Antarctica would at least have been fined for driving in the wrong direction. When it was established that antarctic endeavors during the IGY would be the admission ticket to the negotiations for the Treaty of Washington, Brazil was left out. Accordingly, Brazil protested that decision, since it was evident that the country had antarctic interests. Undeniably, being out of the negotiations and out of the treaty had some advantages. Nevertheless, the advantages did not compensate for the disadvantages. Confronted with the new reality, Brazil had to consider its position in relation to antarctic questions and tak a decision on the course to follow. As stated, there was no doubt about the country's interest in Antarctica. No scientific expertise is needed to understand that the climatic phenomena that powerfully interfere with the economy of the center-south regions of Brazil have their origin in Antarctica. It is also easy to see the importance of antarctic waters in ocean processes along Brazilian coasts. Suffice it to say that Brazil is much closer than most of the ATCPs to Antarctica. Naturally, it had to develop and decide on an antarctic policy. A first possibility was a national solution. Not having taken part in the negotiations, and not being a party to the treaty, Brazil could choose to claim an area of the continent regardless of possible reactions from the parties. Indeed, Brazil has a sufficient basis for claiming territorial sovereignty in Antarctica, but I will spare my audience a description of that basis. For a long time, a territorial approach to the antarctic question had been advocated in certain circles. Private personalities, university professors, members of par- liament, and high officials made statements and wrote articles or books defending that position. A decision was eventually taken not to claim any part of Antarctica; fortunately, I would say. Because, in my view, terri- torial claims are an old-fashioned, if not primitive, form of policy--primitive both in the historical sense, for the most ancient conflicts in history derived from territorial disputes, and in a psychological sense, for one of the earliest instincts of a child is to take possession of something and refuse to share it. As a matter of fact, it was recognized--and here I am not strictly obeying chronological order--that involve-

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339 ment in activities in areas not traditionally subject to national jurisdiction would not require the assertion of territorial sovereignty. In other words, to conduct research and eventually to explore and exploit the deep seabed, outer space, or Antarctica, it is not necessary to exercise sovereignty over parts of these areas. On the contrary, in the case of Antarctica, a territorial claim would lead the country to concentrate on the areas claimed. It seemed to be much more advisable to maintain our freedom of action and to perform scientific research in any region of interest to us. A territorial claim, though possible, was not advisable, and it would restrict rather than enlarge the opportunities offered by Antarctica. In the following years, Brazil had the advantages of observing the performance of the treaty before taking a decision. By the end of the 1960s, Brazil's policy of national integration was bearing fruit and there was rapid development in the natural sciences and in earth studies and atmospheric and marine fields. Scientific capacity, though limited, was strengthened. This fact would be important for Brazilian participation in antarctic activities. The decision taken in 1975 to adhere to the treaty was based on the following factors, inter alla: (1) Brazil has a natural and historical interest in Antarctica; (2) The Treaty was the sole instrument inter- nationally valid and accepted for the whole antarctic region; (3) Brazil takes part in all international efforts to regulate activities in areas not subject to national jurisdiction; and (4) Brazil should, consequently, participate in the discussion concerning Antarctica. A logical consequence of becoming a party to the treaty, because of the relevance of Antarctica for Brazil, was to develop scientific research there and, therefore, to apply for consultative status. The launching of the Brazilian Antarctic Program suffered from some delay, mostly because of internal controversy concerning its management. In 1982, the government decided to establish a National Commission for Antarctic Affairs responsible for the policy and entrusted a successful Interministerial Commission for the Resources

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340 of the Sea with the task of planning and carrying out the program. I shall spare you the description of the pro- gram, but it is important to point to its favorable reception by the Brazilian scientific community, proving that there was a natural wish to extend Brazil's activi- ties to Antarctica. Just after the necessary mechanisms were set up, some 60 proposals were submitted. It is also important to stress the enthusiasm shown by public opinion and by all interested circles in support of the program. At the same time, it cannot be denied that the program is extremely modest. Its budget for 1984 was around U.S. $4 million. Yet the results have been quite encouraging. A national symposium in October 1984 heard some 70 papers, half of them worth publishing in international scientific publications. It is necessary to refer to the invaluable help of many countries active in Antarctica, beginning with Argentina and Chile. It is obvious that in joining the consultative group Brazil was not seeking to belong to an exclusive group composed largely of industrialized countries. That group had been recently enlarged by the admission of two new members, although these were also European countries-- Poland and the Federal Republic of Germany. In 1983, two developing countries gained consultative status--Brazil and India. Brazil did not join the consultative group because of its composition. It did so because this is the forum for cooperation among the countries active in the region. I should also mention Brazil's admission to the Scientific Committee on Antarctic Research, as a necessary step toward full integration into the system. Ratification of the Convention on the Conservation of Antarctic Marine Living Resources is under consideration by the National Congress of Brazil, and it is likely that the process for adherence to it will be completed in 1985. Let me now turn to two questions that are the subject of my intervention. The first one is the role played by the ATCPs vis a vis the international community. The second one is Brazil's position within the consultative group. Both are presented in testimony to our experience rather than as a thesis. The brilliant paper presented by Ambassador gain (Chapter 21) is a model for the logical arrangement of ideas. I do not intend to contradict it, since my demarche, as I stated, is not an abstract one. I would

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341 say, nevertheless, that it leads to logical conclusions from assumptions that are not accurate. It says that the ATCPs assert rights to decision-mak~n~ based on their expertise and experience in Antarctica. I would submit that the ATCPs do not speak of rights. Rights, in this sense, suppose a permission to perform certain activities under limits set beforehand. Until 1961, the ATCPs worked in Antarctica without any legal framework. Nothing could be unlawful because there was no law. After that, they applied to themselves a lawful instrument, thereby restricting their activities. m eir rights, if the word can be used, relate to the treaty and to the United Nations Charter, to which the treaty is subordinated. They do not assert rights vis a vis other states or other instruments, except, of course, under the general principles of international law. The activities of the ATCPs are not based on expertise or experience. Brazil could hardly claim that. The right words are not expertise or experience but involve- ment and responsibility. Some countries are now contesting this absence of rights, this self-imposed legal framework. They want to establish a legislation that will then create rights. Why would this be necessary? Their argument is that the present system has not received the sanction of human- kind. This leads to the question of whether the ATCPs represent the rights of humankind. Here again the question is not well formulated. Since the treaty is not the basis of any rights for its parties, it equally does not imply the denial of rights to nonparties. The idea seems to be to establish another system to which the ATCPs would be accountable. Would it not be simpler to join the existing system and be accountable collectively as is the present case? The term "antarctic club. has been frequently used. Let us take a club as an example. Suppose that some people are not members of a club, which is not closed to them. They say: filet us eliminate the club's regula- tions and submit its members to an outside body to which we would belong." In fact, it would be more to the point if the outsiders joined the club and exercised their rights within it. In other words, they propose a meta- club that would replace the original club, so that they could do what they would do if they simply joined the club. Coming back to the ATS, they propose a metainter- nationalization instead of adhering to the international system.

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342 Some voices have been raised in defense of the inter- nationalization of Antarctica. That is exactly what the treaty ensures, as opposed to the nationalization advocated by the claimants. This new position could be called ultrainternationalization. However, the question here is not one of mere terminology. It is well known that Brazil has been a champion of the concept of the common heritage of humankind applied to the seabed beyond national jurisdiction. The appli- cation of that concept to Antarctica could seem logical if not obligatory. The question was therefore considered in depth, since consistency should be a necessary foun- datzon for any foreign policy. - FIrst, you may have noticed that I used the term concept to identify the nature of the common heritage of humankind. It is not a principle, a slogan, an ideal pointing to an objective to be attained. Common heritage of humankind is a concept newly incorporated into public international law with a clear meaning, a distinct sub- stance. Of course, this is not the place to make a dissertation on this concept. Suffice it to say that it is not a concept to be applied automatically to any area not traditionally subject to national sovereignty. For instance, it should not be applied to Antarctica. The reason for that has nothing to do with the existence there of territorial claims. The interest of the international community in the deep seabed was drawn by specific resources, the exploita- tion of which required financial and technological means and legislation suitable to every state regardless of its financial and technological capability. It should be noted that the concept of common heritage of humankind refers not only to the international seabed area but also to its resources. Antarctica is a completely different case. The antarc- tic system does not stem from specific interests in resources. The problem there has never been how to devise a system that would ensure an equitable sharing of riches. The treaty and the subsequent recommendations of the ATCP meetings intend to regulate the activities of those coun- tries that perform scientific research in the area. The treaty and the recommendations impose a burden on those countries. The word privilege is misplaced as regards the ATS. The responsibilities bestowed on the ATCPS derive not from their power or prestige but from their real involvement in antarctic activities, their commit- ment to study and preserve this magnificent area.

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343 In recent years, the problem of economic resources has indeed been raised. However, that a new question arises does not invalidate the treaty. On the contrary, its solution must be subject to the treaty and ensuing recom- mendations. The ATCPs do not approach the question of resources from the point of view of sharing them among themselves. Their difficult task is to conform any regulation to the principles set by the treaty. In this sense, emphasis must be placed on the interests of all nations, especially the developing ones. This leads me to the second question, that is to say, how Brazil as a new ATOP views the ATS. ~ harbor a healthy suspicion concerning the intentions of industrial- ized countries. On the other hand, I know the interests of developing countries. I will not be challenged on this second point. I do not know the interests of Costa Rica, per se, but I do know the interests of Costa Rica as a developing country. Certainly, Brazil does not represent the interests of developing countries in the ATS. But, necessarily acting as a developing country, Brazil will contribute to the defense of the interests of developing countries. It is necessary to explain how Brazil can act as a developing country in the consultative group. Years ago I was talking with a member of one of those communities that proliferated in the late 1960s and early 1970s. He told me that when a new member was admitted, the initial idea was that this newcomer would have to adapt himself to the community's system. In fact, the opposite took place. The community had to change its ways in order to adapt to the new member. This apparent paradox is not difficult to understand. The new member brought into the community personal abilities and talents. It was in the interest of the community to take advantage of those abilities and talents instead of forcing the newcomer to perform duties for which the newcomer was not prepared. If the system was to rotate service in the kitchen, and the newcomer was a bad cook and a good gardener, it would be in the interest of the community to change the system. Brazil can bring to the consultative group some abilities and many shortcomings. This will have to be taken into account in the interest of the group. New forms of cooperation must be established. This is not easy, for the first impression is that the system is a zero-sum game and that Brazil's shortcomings must be compensated for by the other parties in order to come out even. This is just not so. The contributions that

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344 Brazilian research projects can bring to the system will enrich it. Possibly divergent views will not impede progress but, on the contrary, will bring about wider- ranging decisions. Only many years after the treaty entered into was the apostolic number of the ATCPs increased; by two European countries, and, one year ago, by non-European countries. The challenge that this force first, two repre- sents will bring new life to the system that has to undergo some modifications. It became clear, for instance, at the last meeting on minerals, that the accommodation is not just between claimants and nonclaimants. It is also between indus- trialized and developing countries. Certainly, this presents new problems for the negotiations, but the results will be better. This is only one example. There will be need for more dissemination of information within and outside the system and among its components. Perhaps this will require some institutional arrangements of an administrative nature. coming into the consultative group does not mean that Brazil will change or lose its identity. The group will have to cope with that. Some three years ago there was a humorous chronicle published in a Brazilian newspaper, projecting the first Brazilian expedition to Antarctica. This was before the real one took place: The Brazilians establish their camp just beside a Norwegian camp. On the very first day, they discover they have forgotten to bring a number of things. So, every now and then, a Brazilian goes to knock on the Norwegians' door to ask for a cup of sugar, one or two pairs of socks, some toothpaste, and so on. During the night, the Norwegians can't sleep, for the Brazilians are playing drums and tambourines, singing and dancing the samba. When Sunday rolls around, the Brazilians decide to do something to thank the Norwegians. They had the idea to invite the Norwegians to a football match. So they go to the Norwegian camp and knock at the door. No answer. They open the door. No one. The Norwegians had fled, disappeared. The Brazilians commented among themselves: 'Strange fellows, these Norwegians.' Times are changing in the antarctic system.