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OCR for page 345
24.
The Antarctic Treaty System from the
Perspective of a New Member
S. Z. Qasim and H. P. Rajan
INTRODUCTION
India acceded to the Antarctic Treaty on August 19, 1983,
and was accorded the status of a consultative member on
September 12, 1983, that is, within one month after the
accession to the treaty. We consider this a very sig-
nificant event, because in the past, states that acceded
to the treaty had to wait for several years before being
admitted to consultative status. The grant of consulta-
tive status to India, therefore, clearly shows an inter-
national recognition of India's scientific accomplish-
ments in Antarctica.
India's research program in Antarctica began with the
launching of a first expedition to the continent in
December 1981, although India's interest in Antarctica
dates back many years. India is separated from Antarc-
tica only by a few islands and a continuous stretch of
the Indian Ocean. Unlike the Pacific and the Atlantic
oceans, which communicate to both the North Pole (Arctic)
and the South Pole (Antarctic), the Indian Ocean is
bounded to the north by a landmass; it communicates only
to the Antarctic Ocean and the South Pole, from which it
derives energy and fertility.
Recent investigations have revealed that the weather
over the Indian Ocean is greatly influenced by the Antarc-
tic environment. It is also interesting to note that the
ice sheet of Antarctica is in several ways akin to the
Himalayan ice column. The Himalayan ice samples have
revealed that they are inextricably mixed with the effects
of spasmodic uplift. The Antarctic, on the other hand,
represents a stable situation affected only by global
climate. For scientific purposes, therefore, it is pos-
sible to use Antarctica as the southernmost reference
345
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346
point, with the Himalayas as the corresponding northern-
most point. Studies on the mass balance of annual
glaciers provide data on the current short-term climatic
situation in the Himalayas; linking these data with
annual changes on the largest freeze/melt operation on
the Earth, that is, the sea regions of Antarctica, would
provide scientific information on global weather
phenomena.
Scientific research in Antarctica is important because
(1) Antarctica is an important location for observing
the interaction of the Earth's magnetic field and
charged particles from the Sun. It is perhaps the
only place in the Southern Hemisphere from where obser-
vation of simultaneous activity in the ionosphere and
the Earth's magnetic field can be made. It provides
relative freedom from man-made sources of electrical
interference (noise). Hence, it forms an ideal envi-
ronment for conducting studies on radiowave propaga-
tion and radio-noise levels, both in the ionosphere
and in the lower atmosphere.
(2) The North and South poles maintain the heat
budget of the world in balance. The heat transferred
through the atmosphere and the oceans to the poles is
dissipated in space in the form of long-wave radia-
tion. The cold air from Antarctica, on meeting the
warm air in the atmosphere of the lower latitudes,
changes into moisture-bearing clouds. Antarctica thus
regulates the global climate and in particular that of
the Southern Hemisphere.
(3) The waters of the Indian, Atlantic, and Pacific
oceans merge around Antarctica, forming a distinct
body of water that girdles the continent and remains
uninterrupted by any landmass. The mixing process
between the cold and warm waters demarcates the area
of the antarctic convergence that has unique physical,
chemical, and biological characteristics.
(4) Antarctica provides a distinct, unpolluted and
stable environment for carrying out scientific
observations.
(5) Many important oceanographic features of the
Indian Ocean are governed by the Antarctic Ocean.
Hence, to understand the processes occurring in the
Indian Ocean, knowledge of that part of the Antarctic
Ocean that joins the Indian Ocean becomes very
necessary.
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347
(6) In the Mesozoic era, the supercontinent of
Gondwanaland had a common landmass of five continents,
namely, Africa, Antarctica, Australia, India, and
South America. Later, the continents drifted apart
and the oceans came between.
m e study of Antarctica, therefore, is of great
significance to India.
BACKGROUND OF THE ANTARCTIC TREATY
Polar expeditions date back to time immemorial. The
Greeks knew of the existence of Antarctica but had no
proof. They had named the brightest star circling the
sky "Arktos~ (meaning the bear), and they called the pole
around which it appeared to revolve the Arctic Pole. To
balance the natural order, they felt that there must be a
similar opposite pole and named it ~Anti-Arctic, n which
in later years has come to be known as Antarctica.
International scientific cooperation, however, began
only during the first International Polar Year in
1882-1883. During this period, the latitude and the
longitude of the antarctic region were determined, and
studies began to be carried out in the fields of mag-
netics, meteorology, and glaciology. A second inter-
national Polar Year was convened 50 years later, in
1932-1933. With the advances made in the field of geo-
physics and in various techniques, particularly those
relating to investigation in the ionosphere, it was felt
that the third International Polar Year should be
scheduled after a lapse of only 25 years. Accordingly,
this was called for the years 1957-1958.
To undertake the preparatory work for the third Inter-
national Polar Year, the proposal was formally placed
before the Mixed Commission on Ionosphere--a body formed
by the International Council of Scientific Unions (ICSU).
A resolution was moved in the bureau of ICSU, stipulating
that the third International Polar Year be scheduled for
the year 1957-1958, and that an International Polar Year
Commission be established in 1951 to do the necessary
planning for the program. The resolution was approved
and the special committee was duly convened in 1952. The
World Meteorological Organization (WMO) was also invited
to participate. The WHO suggested that an International
Geophysical Year (IGY) would be more useful, stressing
the need to extend synoptic observations of geophysical
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348
phenomena over the whole surface of the Earth. Accord-
ingly, a Special Committee for the International Geo-
physical Year (CSAGI) was constituted to undertake the
preparatory work for the IGY. The CSAGI held four meet-
ings and four conferences prior to the start of the IGY.
The work of the CSAGI also led to the establishment of an
ad hoc committee in 1957 and thereafter a standing Special
Committee on Antarctic Research. The special committee
was renamed the Scientific Committee on Antarctic Research
(SCAR) in 1961.
Considering the political situation prevailing at that
time, the IGY needs to be commended for its contributions.
Antarctica for many decades prior to the IGY had been an
object of continued interest among many nations. Of
these, seven nations had made territorial claims to the
continent, some of which overlapped. Many nations,
including the United States, the USSR, Australia, New
Zealand, and the United Kingdom, had attempted to solve
the controversies relating to the antarctic territorial
claims, but these attempts did not succeed. The claims
controversy by and large did not significantly affect the
relationships among the scientists carrying out work in
Antarctica. Scientists from various countries, including
those having overlapping claims in Antarctica, demon-
strated quite convincingly that they could carry out
their work together peacefully, without being affected by
political differences. This was due partly to common
scientific objectives in the most inhospitable continent
and partly to the fact that the scientists were not per-
sonally responsible for respective national interests in
Antarctica, since such interests were not at stake during
the IGY.
However, it became clear to all nations involved in
antarctic investigations that much could be gained if
scientific work that began during the IGY could be con-
tinued thereafter. On May 2, 1958, the United State S
proposed to other participants in the IGY that they
should all join n in a Treaty designed to preserve the
continent as an international laboratory for scientific
research and ensure that it be used only for peaceful
purposes. al
Thus, in the invitation to the Washington conference,
the President of the United States had pointed out that
the "present situation in Antarctica is characterized by
diverse legal, political, and administrative concepts
which render friendly cooperation difficult in the absence
of an understanding among the countries involved," and he
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349
proposed the negotiation of a treaty that in addition to
securing freedom of scientific investigation for ~citi-
zens, organizations, and governments of all countries n
should also secure the use of Antarctica for peaceful
purposes only and for any other peaceful purposes not
inconsistent with the charter of the United Nations.2
The invitation was issued after careful and confiden-
tial consultations.3 All nations accepted the idea in
principle. However, during the preliminary talks in
Washington, the USSR opposed the claims on antarctic
territory by some nations and Chilean and Argentine
delegations were reluctant to agree to international
control.4 Nevertheless, the advisability of main-
taining Antarctica free for scientific investigations,
with particular reference to the studies that started
during the ICY, prevailed, and a formal treaty conference
was opened on October 15, 1959. Finally, the treaty was
signed on December 1, 1959. Japan was the first nation
to ratify the treaty on August 4, 1960. The treaty
entered into force on June 23, 1961.
THE ANTARCTIC TREATY SYSTEM
The Antarctic Treaty is a remarkable instrument, drafted
through a unique negotiating process at a time when the
cold war was at its peak. It has been particularly suc-
cessful in two aspects, namely, keeping Antarctica free
from military activities, including nuclear weapons, and
persuading the seven states with territorial claims to
put them aside for at least 30 years. It has worked
admirably well administratively and more so scientifi-
cally, because scientific investigations have been
continuously in progress irrespective of the political
differences and territorial controversies.
Nevertheless, in the eyes of outsiders, the treaty was
regarded as an exclusive club. The most important pro-
vision concerning the operational part of the treaty is
contained in Article IX, which has created a system of
regular, periodic meetings of representatives "for the
purpose of exchanging information, consulting together on
matters of common interest pertaining to Antarctica, and
formulating and considering and recommending to their
governments measures in furtherance of the principles and
objectives of the treaty.... n The main objectives of the
treaty as it stands today include measures regarding
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350
(1) The use of Antarctica for peaceful purposes only,
(2) Facilitation of scientific research in Antarctica,
(3) Facilitation of international scientific
cooperation in Antarctica,
(4) Facilitation of the exercise of the rights of
inspection provided for in Article VII of the treaty,
(5) Questions relating to the exercise of ~ur~su~ct~on
in Antarctica, and
(6) Preservation and conservation of the antarctic
environment and of living resources in Antarctica.
m e procedure established by these provisions is commonly
referred to as the consultative procedure, and the parties
participating in the meetings are known as the consulta-
tive parties. All the original members of the treaty
were automatically regarded as consultative parties,
whereas the countries that acceded to the treaty later
could become consultative parties after they demonstrated
a tangible interest in Antarctica by conducting substan-
tial scientific research activity there, such as the
establishment of a permanent scientific station or the
dispatch of a scientific expedition. On such a demonstra-
tion, the country concerned ipso facto is entitled to
consultative status. However, in view of the circum-
stances under which the Antarctic Treaty itself was
negotiated, it has become a procedural formality to bring
such a demonstration by a new member to the attention of
all other consultative parties to the Antarctic Treaty at
an Antarctic Treaty consultative party (ATCP) meeting.
It is, however, somewhat interesting to note that while
the original members of the treaty retain their con-
sultative status for all time, a new member remains a
consultative party only during such time as it continues
its scientific interest in Antarctica.
However, despite these limitations, it is erroneous to
maintain that the Antarctic Treaty is a closed club and
that the decisions are taken only by those who are
represented in the ATCP meetings. On the contrary, the
Antarctic Treaty is an open treaty. It is open to acces-
sion by any state that is a member of the United Nations.
It is also open for accession by any state that may be
invited to accede to the treaty; but in the case of acces-
sion by invitation, the consent of all contracting parties
with consultative status is required. Table 24-1 gives a
list of countries that have acceded to the Antarctic
Treaty together with those that have been given consulta-
tive status.
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351
TABLE 24-1 Antarctic Treaty Members
Original Members (All Consultative Parties)
Argentina
Australia
Belgium
Chile
France
Japan
New Zealand
Norway
Union of South Africa
Union of Soviet Socialist Republics
United Kingdom of Great Britain
and Northern Ireland
United States of America
Acceding Members and Years of Accession
Poland 1961a
Czechoslovakia
Denmark
The Netherlands
Romania
German Democratic
Republic
Brazil
Bulgaria
Federal Republic of
Germany
Uruguay
Papua New Guinea
Italy
Peru
Spain
Peoples Republic of
China
India
Hungary
Finland
Sweden
Cuba
1962
1965
1967
1971
1974
975b
1978
197 9C
1980
1981
1981
1981
1982
1983
1983d
1984
1984
1984
1984
(a) Became consultative party in 1977
(b) Became consultative party in 1983
(c) Became consultative party in 1981
(d) Became consultative party in 1983
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352
The Antarctic Treaty provides for meetings of the ATCP
members at regular intervals, and the practice has been
that the meetings are held once every two years. During
the regular ATCP meetings, a large number of recommenda-
tions are adopted on matters concerning the various
aspects of Antarctica. The number of such recommenda-
tions varies greatly from meeting to meeting (from 28 at
the fourth to 3 at the eleventh). So far, 12 meetings
have taken place and in all 138 recommendations have been
adopted. Several of these deal with purely procedural
and administrative matters, while many others serve to
implement measures on specific matters. By such a pro-
cedure, a number of recommendations on important subjects,
termed the "Agreed Measures," have been adopted. Some of
these Agreed Measures, according to reviewers of the
treaty, are tantamount to substantial legislation. The
consultative parties have demonstrated a strong desire
and a will to avoid conflict and promote cooperation by
acting jointly to fulfill the objectives of the treaty.5
It may also be noted that the Antarctic Treaty System
is not merely confined to the working principles estab-
lished by the Antarctic Treaty parties and their consulta-
tive mechanism. A closer examination of the treaty
reveals that it has intrinsic links with other organiza-
tions of the scientific community and in particular with
the Scientific Committee on Antarctic Research (SCAR).
Article II of the treaty stipulates that the freedom
of scientific investigations in Antarctica and the coop-
eration envisaged toward that end, as enunciated during
the IGY, shall continue. A question may be asked: What
exactly was the cooperation extended during the IGY?
From the start, the IGY unanimously adopted a notion that
the overall aim of the antarctic program should be
entirely scientific. However, in Antarctica the situa-
tion is such that it is difficult to separate science
from politics. In 1957, the International Council of
Scientific Unions (ICSU) took steps to examine the merits
of scientific investigations in Antarctica, and in 1958
SCAR was established. In the same year, it was also
agreed to extend the IGY program through the year 1959.
Thus, the work carried out by SCAR becomes an integral
part of the cooperation, and both the IGY and SCAR have
become indispensable elements of the Antarctic Treaty
System. It must, however, be made clear that SCAR, by
itself, does not conduct scientific programs. All
research in Antarctica is carried out and financed by
national organizations. The activities of SCAR are
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353
governed by its constitution, framed in 1958, which with
time has undergone minor changes. According to the SCAR
constitution, it is a scientific committee of ICSU
charged with the initiation, promotion, and coordination
of scientific activity in the Antarctic, with a view to
framing and reviewing scientific programs of circumpolar
· · .
scope and signs :~cance.
In establishing the programs, SCAR respects the
autonomy of other existing international bodies. Since
no infrastructure existed in Antarctica before the IGY,
the scientific organizations coordinated by SCAR had to
organize logistic bases for different types of operations.
To carry out scientific research in Antarctica, many SCAR
nations have established special polar research institutes
responsible for field operations, the running of permanent
bases, and planning and coordinating of scientific pro-
grams. India and Brazil were admitted as full members of
SCAR at the meeting held in October 1984 in Bremerhaven,
Federal Republic of Germany.
It must be mentioned that the geographical area of
interest to SCAR extends to the antarctic convergence,
where the cold antarctic waters meet the warmer currents
from the north; it thus includes some of the islands
lying north of the convergence. Thus, the area of inter-
est to SCAR is wider than that covered by the Antarctic
Treaty, which covers the area south of 60°S latitude only.
SCAR has been active in planning and coordinating
antarctic research since the end of the IGY. At the
twelfth ATCP meeting, held in Canberra in 1983, a resolu-
tion was adopted that recognized that SCAR has a unique
assemblage of knowledge and expertise in antarctic science
and expressed appreciation for the advice provided by
SCAR to the ATCPs in response to various requests.6
m us, the ATCP meetings and their recommendations, along
with the work of SCAR and the contributions of other
scientific bodies, such as the Scientific Committee on
Oceanic Research and the International Union for the
Conservation of Nature and Natural Resources, which are
concerned with antarctic matters, form a close-knit
system governing the Antarctic.
What exactly does this system seek to accomplish? The
first 10 to 15 years of the existence of SCAR and the
treaty have been sometimes referred to as the "honeymoon n
time in Antarctica.7 Science and conservation were the
only two activities that mattered. The treaty made no
substantive reference to resources. It merely provided a
forum for discussion on the future elaboration of measures
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354
to preserve and conserve the living resources of Antarc-
tica. The question of nonliving resources was not
mentioned at all. No activity was in progress or even
contemplated at that time for the extraction of mineral
resources. Thus, although it was deemed necessary to
make a special reference to living resources as a subject
for consultation and conservation, it was thought that
there was no practical or urgent need for a similar pro-
vision on nonliving resources. It is also significant to
note that, with respect to living resources, measures
have been adopted that go far beyond the question of con-
servation alone. In other words, the conservation clause
in the Antarctic Treaty has been effectively used even
for the regulation of activities that may very often be
regarded as commercial in nature. This is particularly
true for the Convention for the Conservation of Antarctic
Seals adopted in 1972. This process of regulating activi-
ties under the conservation clause of the Antarctic
Treaty has been referred to as a policy of n indirection"
by some writers.8
Convention on Seals
The consultative parties have accorded a high priority to
the preservation and conservation of antarctic living
resources. The very first ATCP meeting adopted a recom-
mendation that
· Recognizes the urgent need for measures to
protect living resources from uncontrolled destruction
by man;
· Calls for the establishment of such measures in a
suitable form;
.
Proposes, as an interim measure, the adoption of
general rules of conduct based on guidelines developed
during the first meeting of SCAR; and
Encourages cooperation in promoting scientific
studies of Antarctica.
Similar concerns were expressed at the second con-
sultative meeting, and the draft of the Agreed Measures
for the Conservation of Antarctic Fauna and Flora was
improved and later adopted at the third consultative
meeting. After the fourth consultative meeting, the
consultative parties turned their attention to the
conservation of antarctic seals. Recommendations of the
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355
fourth meeting designated the fur seals and the Ross seals
as specially protected species. Thus, these animals,
which were in great danger of extinction in the nine-
teenth and early twentieth centuries, started to multiply
again because of suspension of economic exploitation. In
an attempt to fill in the gaps left by the Agreed
Measures that were adopted, the governments of the con-
sultative parties were called to regulate seal hunting at
the national level. During the fifth consultative meet-
ing, the parties that reviewed the SCAR report prepared
for that purpose concluded a draft convention regulating
pelagic sealing. There were two reasons for the choice
of a convention rather than a set of "agreed measures
such as those adopted in 1964. First, the Agreed Measures
on the antarctic fauna and flora are in the form of a
recommendation, which, since it had not yet been approved
at that time by all parties represented at the consulta-
tive meetings had not become binding. Second, the scope
of a recommendation was considered limited to the con-
sultative parties, and it was desirable to try to increase
the effectiveness of Antarctic Treaty recommendations by
inviting other states to observe them. It was therefore
decided to convene a special conference to negotiate a
convention on seals in the Antarctic. The 12 consulta-
tive parties participated in the conference. On June 1,
1972, the Convention on the Conservation of Antarctic
Seals (Seals Convention) was finally adopted in London.
The Seals Convention is open for accession by any state
that may be invited to accede to it with the consent of
the contracting parties. The area covered by the conven-
tion lies south of 60°S latitude. The convention main-
tains a close link with SCAR. To avoid possible conflicts
relating to sovereignty claims, Article IV of the Antarc-
tic Treaty of 1959 is specifically mentioned in Article I
of the Seals Convention. The convention provides that
the contracting parties may from time to time adopt other
measures with respect to conservation, scientific study,
and rational and humane use of seal resources. It also
includes provisions specifying measures to be adopted for
protection of the antarctic seals, such as permissible
catch, open and closed seasons, seals reserves, exchange
of information, and consultation among the contracting
parties. Article I specifies the species to which the
convention will be applicable and indicates the specially
protected species that cannot be killed or captured. The
convention entered into force in 1978.
OCR for page 364
364
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OCR for page 365
365
much information on antarctic marine life. Research
is now being conducted to study interactions among
species, their life histories, abundance, distribu-
tion, and their special adaptation to the environment
(2) Glaciology: Antarctic glaciers constitute about
90 percent of the Earth's glaciation. Glaciologists
study the structure and dynamics of the antarctic ice
. .
sheet. Ice coring and isotopic analysis have provided
information on climatic conditions that existed
thousands of years ago.
(3) Atmospheric Sciences: Scientists in Antarctica
are investigating physical processes occurring in
different regions of the atmosphere, their interaction
with the ocean and their influence on global climate.
The remoteness of the continent from anthropogenic
sources of air pollution makes it an ideal place to
gather data on atmospheric-aerosol transport and
precipitation and the variability of trace-gas
constitutents and their effect on climate. Upper-
atmospheric research in Antarctica is concerned with
geomagnetism, cosmic rays, and auroral and ionospheric
physics.
(4) Earth Sciences:
The earth science group consists
of scientists working in the fields of cartography,
geodesy, geology, and solid earth geophysics. A
number of other related disciplines such as seismics,
magnetics, gravimetry, geochemistry, volcanic geology,
glacial geology, and paleontology are also encompassed
within the scope of their work.
(5) Biological and Medical Sciences:
life in Antarctica is meager.
Terrestrial
_ Certain bacteria,
algae, and lichens survive just below the surface of
some rocks.
represented by several insect species.
. . . . . _
The inland animal world in Antarctica is
. . ~
The largest
antarctic terrestrial animal is a 5-mm-long wingless
insect found in the Antarctic Peninsula. Biologists
are studying these organisms and their responses to
human intervention. From the biomedical point of
view, the human being is also an object of research.
Human physiology and behavioral reactions in extreme
antarctic conditions and in isolation are being
studied.
INDIA'S SCIENTIFIC EXPEDITIONS
In view of the importance of Antarctica to India, as
noted earlier, it was decided in 1981 to undertake
OCR for page 366
366
expeditions to this remote continent. After careful
consideration and planning, a team of 21 members was
selected for the first expedition, with clear-cut
scientific objectives to be undertaken.
The expedition left Goa on December 6, 1981, on board
M.V. Polar Circle, a chartered ship from M/S G.C. Reiber
& Co., Bergen, Norway. The members of the team were
drawn from seven different institutions in the country
and included oceanographers, meteorologists, biologists,
geologists, geophysicists, radio-communications experts,
and naval personnel. The participants were acclimatized
to the cold in a vigorous training program in the
Himalayas and to the sea on board a ship. Before depar-
ture, the entire team was briefed by several top national
scientists. After a successful cruise, they landed in
Antarctica at 30 minutes past midnight January 9, 1982.
The main objectives of the first expedition were as
follows:
(1) To initiate studies and build facilities and
expertise in different oceanographic disciplines with
reference to antarctic waters,
(2) To continue and strengthen a program of routine
data collection and studies, and
(3) To identify programs of significance in
scientific and economic terms and pursue these as
thrust areas in order to establish the position of
Indian science in Antarctica.
The expedition set up a base camp on the ice shelf and
another, which was named Dakshin Gangotri, in the hilly
terrain.
The scientific report on the first expedition has
already been published. It includes 30 original papers
on different scientific disciplines.
A second expedition was organized in December 1982.
m is expedition consisted of 28 members drawn from nine
different organizations in the country. The same vessel,
Polar Circle, was chartered again for this expedition.
The second expedition left Goa on December 1, 1982, and
landed on December 28, 1982.
The objectives of the second expedition were as
follows:
(1) To survey the area and select a site for setting
up a permanently manned station in Antarctica,
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(2) TO work out the logistics for setting up and
servicing the permanently manned research station,
(3) To survey and identify a suitable airstrip and
prepare it for landing an aircraft,
(4) To establish direct communications links between
the base camp in Antarctica and India and between the
base camp and the mobile parties on the landmass and
on the ship, and
(5) To obtain more knowledge in all the scientific
disciplines initiated on the first expedition.
The second expedition successfully accomplished these
tasks and in particular selected a site for a permanently
manned station. It also recovered the cassette from the
automatic weather-recording station left behind during
the first expedition and fixed a new cassette after fully
overhauling the entire system.
The third Indian expedition consisted of a team of 81
persons, including two women scientists, chosen from 13
different organizations. The significant objectives of
this expedition were to build the permanent station and
to leave a team of 12 members to winter in Antarctica and
continue experiments during the antarctic winter.
In view of the size of the third team, a larger Finnish
vessel was chartered for the expedition. It left Goa on
December 3, 1983, and landed in Antarctica on December
27, 1983. The building material for the station consisted
of prefabricated material and containers specially
designed to expand the existing Indian barracks erected
during the earlier expeditions. Four helicopters to
carry personnel and material from the ship to the base
camp were also taken.
A fourth Indian expedition was launched on December 4,
1984. This expedition was composed of 82 persons.
India has defined its short-term and long-term
objectives in Antarctica for the next decade.
POLITICAL I SSUES
1
The possibility in the future of exploiting mineral
resources for commercial gain has resulted in a sudden
increase of interest in Antarctica among many other
countries. Thus, between 1961 and 1974, during a period
of 15 years, only six additional states acceded to the
Antarctic Treaty. Between 1975 and 1980, four states
deposited their instruments of accession, but between
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1981 and 1984, 10 states acceded to the treaty. In
addition to the possibility of minerals exploitation,
this may be attributed to other important events that
have taken place in the last two decades. First, techno-
logical breakthroughs and the emergence of newly
independent nations in the 1960s have brought demands for
change in existing international legal rules and regula-
tions. These demands arose as a result of participation
by the newly independent states in the law-making process.
This in turn has resulted in calls for a new international
economic order and for the utilization of all natural
resources beyond national jurisdiction for the common
benefit of humankind.
The longest and most widely attended conference in the
history of the United Nations, the third Law of the Sea
Conference (UNCLOS), witnessed the great enthusiasm with
which these demands were projected. The day the U.N.
General Assembly resolved to convene the third UNCLOS, it
passed a resolution with 108 votes in favor, none against,
and 14 abstentions, which declared, inter alla, that the
resources of the seabed and the subsoil thereof beyond
the limits of national jurisdiction were the "common
heritage of mankind" (CHM). The CHM principle, as it is
commonly known, is regarded as the cardinal principle of
the new law of the sea. The CHM resolution has been
regarded as law making, and attempts have been made to
apply the same principle to other natural resources; for
example, the 1970 Agreement Governing the Activities of
States on the Moon and other Celestial Bodies declared
the resources of the moon to be a "common heritage of
mankind."
The 15-point CHM declaration on the seabed envisaged
the establishment of international machinery for the
administration of the principle. However, the UNCLOS
witnessed the erosion, at least to a large extent, of the
CHM principle. The machinery that it established did not
exactly conform to the lines envisaged in the CHM Declara-
tion; instead, it was based on a pragmatic approach,
incorporating a "parallel" system of exploitation.
In fact, the entire Law of the Sea Convention has to
be viewed in two parts. One part includes the codifica-
tion of existing rules and customary law covering matters
falling within national jurisdiction. The provisions of
the other part relate to the resources beyond the limits
of national jurisdiction (the international seabed area).
They are in a more or less contractual form, which takes
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into account the interests of the countries that have the
technology and the capital necessary for seabed mining.
Law of the Sea Conference Resolution II, adopted along
with the convention, recognizes a special status known as
"pioneer" status for nations that have already made
substantial investments in seabed mining. In contrast,
the 1970 CHM Resolution on the seabed had incorporated
the principles of an earlier resolution passed in 1969
known as the moratorium resolution, which had prohibited
activities relating to seabed resources pending the
establishment of international machinery
Thus, without going into much detail, it becomes quite
clear that the CAM principle as contained in the Law of
the Sea Convention under the section entitled "Principles
Governing the Area" is contradictory in terms. It is
therefore very difficult to accept the theory that the
CHM principle has attained the status of universal inter-
national law. or ius covens, insofar as the natural
resources beyond the limits or national ~ur~sa~ce~on are
concerned. It would thus be erroneous to superimpose the
CHM principle on antarctic resources without understanding
how the system as a whole has worked so far, however
noble the principle may appear to be at first sight.
It may be recalled that at the initiative of Malaysia
and Antigua and Barbuda, the United Nations produced in
October 1984 a comprehensive study on Antarctica and in
debating it in the General Assembly many countries
referred to the CHM principle. Yet in light of the prin-
ciples discussed above as to how the antarctic system has
worked so far, it is doubtful whether the CHM concept,
-
however relevant in the context of the law of the sea, is
appropriate or workable if applied to antarctic
resources.
The consultative parties, in various informal meetings,
have already expressed their grave concern at attempts to
internationalize the Antarctic without appreciating the
openness of the Antarctic Treaty as well as how the system
has worked so effectively thus far. Even politically,
the Antarctic Treaty has undergone many crucial tests.
When the treaty was signed in 1959, there were seven
states that claimed sovereignty over Antarctica. The
United Kingdom's claim dates back to 1908, based on
discovery and formal acts of possession. The Chilean
claim to territorial sovereignty was made in 1940, but
Chile did not establish a station until 1947. The claims
of Chile, Argentina and the United Kingdom overlap. The
Australian claim (1933) covers the largest area, about
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6.5 million square kilometers. France did not make a
territorial claim until 1924. New Zealand's claim dates
back to 1923. The Norwegian claim was made in 1939,
presumably to prevent German activity in the area. The
Argentine claim was first decreed in 1946. Only the five
claims of Australia, France, New Zealand, Norway and
United Kingdom are mutually recognized. About 15 percent
of the continent--Marie Byrd Land--is free from any
claims.
One of the most important contributions of the treaty
system has been to freeze the territorial claims and thus
put to rest controversies surrounding the claims.14 It
may also be mentioned that even the claimants could be
divided into the northern and southern groups. The
southern group would consist of Argentina, Australia,
Chile, and New Zealand and the northern group would
comprise France, Norway, and the United Kingdom. The
southern claimants can practically control all ports and
other land-based facilities that may serve as communica-
tions links with Antartica. Major operations to Antarc-
tica could turn out to be impossible or prohibitively
expensive if logistic support from bases in at least one
of these countries were not available.l5
The nonclaimant parties to the Antarctic Treaty are
Belgium, Brazil, the Federal Republic of Germany, India,
Japan, Poland, South Africa, United States and the USSR.
It may, however, be mentioned that Brazil, Peru, and
Uruguay have informally speculated about making claims in
Antarctica.
The role of the two major powers, the United States
and the USSR, also deserves special mention. Although
the United States has not made any official claim, many
attempts have been made unofficially regarding the option
of the United States' staking a claim. In fact, the
document entitled "The Political Legacy of the Inter-
national Geophysical Year," prepared for the Subcommittee
on National Security Policy and Scientific Developments
of the Committee on Foreign Affairs of the U.S. Congress,
includes the United States among the claimant nations,
although the word "unofficial" is used in brackets.l6
The USSR, on the other hand, has reserved all rights,
based on the Russian discoveries, which include the right
to present territorial claims if need be. The role of
these two countries, which have, over the years, made
massive investments in Antarctica and have contributed
enormously to antarctic science, becomes significant in
light of the attempts to internationalize the issue in
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the U.N. forum. It may be mentioned that in the negotia-
tions for a mineral regime, the Beeby draft text has
sought to give a special status to these two countries
among the treaty parties as "the two states which, prior
to the entry into force of the Antarctic treaty, had
asserted a basis of claim in Antarctica. nl7
Apart from the recent attempt in the United Nations,
there have been other instances when there were efforts
to internationalize the antarctic issue. In 1971, the
Committee on Natural Resources of the U.N. Economic and
Social Council (ECOSOC) was told by Secretary-General U
Thant that "the era of systematic exploration for
antarctic resources had arrived" and that the work of the
committee would be "incomplete and unrealistic if any
significant portion of the globe went unreported and
excluded.~18 In 1975, the issue was raised in meetings
of the U.N. Environment Program (UNEP) and again in the
ECOSOC. In 1976, the FAO attempted to develop a $45
million Southern Ocean program with U.N. Development
Program (UNDP) assistance for exploration, exploitation,
and utilization of Southern Ocean resources for the
benefit of the world as a whole and developing countries
in particular. Because of the treaty parties'
objections, this program was radically reduced to a
$200,000 information project.19
CONCLUSIONS
In light of the foregoing account, a very important ques-
tion that needs to be considered is: What is the kind of
regime that should be established in Antarctica? In this
regard, the role of the consultative parties becomes
crucial, as does in particular the role of new members
such as India. India's position becomes even more
important because of the status that it holds as the
chair of the NonAligned Movement.
It is undoubtedly clear that, whatever mechanism is
advocated for a future regime, the antarctic system as a
whole cannot be replaced. The present discussions in the
United Nations and the possibility of a review of the
Antarctic Treaty in the year 1991 make it important to
consider right now what amendments/modifications are
necessary to maintain scientific activity and cooperation
in Antarctica. Already it can be noticed that many
conditions in the ATCP meetings are now relaxed. The
openness of the system is further demonstrated by recent
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decisions allowing parties to the treaty-that are not
consultative parties to attend the consultative meetings
as observers. Similarly, in all meetings and discussions
related to the minerals regime in Antarctica, the noncon-
sultative members will henceforth be invited to attend as
observers. The number of consultative party members,
which remained at 12 from 1959 to 1977, has now increased
to 16. It is hoped that many more states will want to
join the group.
To sum up, it seems that an overhaul of the Antarctic
Treaty System is neither possible nor advisable. Such an
overhaul would affect not only the Antarctic Treaty pro-
visions but also an entire scientific system developed
through scientific cooperation over the past 100 years or
so. This scientific cooperation can neither be ensured
through another structure nor governed by provisions of
any new treaty. What is important is the will of the
nations, and in particular the dedication of individual
scientists, who have braved their way to the remote
continent and conducted investigations and experiments
there for the benefit of mankind as a whole. The findings
and results of these investigations are what humankind
looks forward to. That, in short, is the true essence of
the CHM principle. The scramble for economic gain coupled
with notions of sovereignty will seriously hamper scien-
tific progress in Antarctica.
Internationalization of the Antarctic as an issue in
political forums cannot be expected to produce any sub-
stantial results. Regrettably, it may perhaps lead to
another historic conference like the third UNCLOS. While
admittedly the Law of the Sea Conference was historic in
many senses, it also offers many lessons. To maintain
the true essence and spirit of the CHM principle, it is
necessary to maintain scientific cooperation and activity
unhampered by political or economic interests, and steps
should be taken for the dissemination of scientific
information obtained thus far for the benefit of mankind
as a whole.
NOTES
1. Bullis, H. 1973. The political legacy of the
International Geophysical Year, in hearings before
the Foreign Affairs subcommittee on National
Security Policy and Scientific Development, U.S.
House of Representatives (November 1973), p. 57.
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373
2. Sollie, F., 1984. The future of Antarctica.
Mazingira, p. 5.
3. Daniels, P.C., 1973. The Antarctic Treaty. In R.S.
Lewis and P.M. Smith, eds. Frozen Future, (New
York), p. 36.
4. Bulls, H., 1973. The political legacy of the
International Geophysical Year, in hearings before
the Foreign Affairs subcommittee on National
Security Policy and Scientific Development, U.S.
House of Representatives (November 1973), p. 57.
Sollie, F., 1984. The development of the Antarctic
Treaty System--trends and issues. In R. Wolfrum,
ed. Antarctic Challenge: Conflict, Interests,
Cooperation, Environmental Protection, Economic
Development, Dunker & Humblot (Berlin), p. 20.
6. Recommendation XII-8, adopted at the 1983 meeting of
the ATCPs. Text of the recommendation is contained
in SCAR Bulletin No. 76, January 1984, p. 121.
7. Gjelsvik, T., 1984. Scientific research and
cooperation in Antarctica, in R. Wolfrum, ed.
Antarctic Challenge, Dunker & Humblot (Berlin), p.
46.
8. Sollie, F., 1984. The development of the Antarctic
Treaty System--trends and issues. In R. Wolfrum,
ed. Antarctic Challenge: Conflict, Interests,
Cooperation, Environmental Protection, Economic
Development, Dunker & Humblot (Berlin), p. 32.
9. For the text of the recommendation, see SCAR
Bulletin No. 58, January 1978, p. 90.
10. Sollie, F., 1984. The development of the Antarctic
Treaty System--trends and issues. In R. Wolfrum,
ed. Antarctic Challenge: Conflict, Interests,
Cooperation, Environmental Protection, Economic
Development, Dunker & Humblot (Berlin), p. 33.
11. Couratier, J., 1983. The regime for the
conservation of Antarctica's living resources. In
F. Orr ego Vicuna, ed. Antarctic Resources Policy,
Scientific, Legal and Political Issues Cambridge
University Press (London), pp. 147-148.
12. Report of the Twelfth Consultative Meeting,
Canberra, 13-17 September 1983, in SCAR Bulletin No.
76, January 1984.
13. A report of the U.N. Secretary-General on the
question of Antarctica was submitted to the U.N.
General Assembly on October 31, 1984. This study is
in two parts. U.N. Doc. A/39/583.
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374
14. Article IV of the treaty reads as follows:
"1. Nothing contained in the present Treaty shall
be interpreted as:
~(a) a renunciation by any Contracting Party of
previously asserted rights of or claims to
territorial sovereignty in Antarctica;
"(b) a renunciation or diminution by any
Contracting Party of any basis of claim to
territorial sovereignty in Antarctica which it may
have whether as a result of its activities or those
of its nationals in Antarctica, or otherwise;
n (C) prejudicing the position of any Contracting
Party as regards its recognition or non-recognition
of any other State's right of or claim or basis of
claim to territorial sovereignty in Antarctica;
2. No acts or activities taking place while the
present treaty is in force shall constitute a basis
for asserting, supporting or denying a claim to
territorial sovereignty in Antarctica or create any
rights of sovereignty in Antarctica. No new claim,
or enlargement of an existing claim, to territorial
sovereignty in Antarctica shall be asserted while
the present treaty is in force."
15. Antonsen, P., 1984. On the balance of power in
Antarctic Treaty System. Nansen Newsletter No. 2:8.
16. Bullis, H. 1973. The political legacy of the
International Geophysical Year, in hearings before
the Foreign Affairs subcommittee on National
Security Policy and Scientific Development, U.S.
House of Representatives (November 1973), p. 56.
17. See Appendix 8, The Future of the Antarctic:
Background for a U.N. Debate. October 1, 1983.
Greenpeace International (Lewes, United Kingdom),
1983, p. 4.
18. Mitchell, B. 1983. Frozen stakes: the future of
Antarctic minerals. International Institute for
Environment and Development (London), p. 41.
19. Mitchell, B. 1983. Frozen stakes: the future of
Antarctic minerals. International Institute for
Environment and Development (London), 1983, p. 41.
Representative terms from entire chapter:
living resources
