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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.

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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

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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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367 (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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368 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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369 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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370 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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371 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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372 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.