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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
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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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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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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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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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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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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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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.
Representative terms from entire chapter:
national jurisdiction
