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26. The Evolution of the Antarctic Treaty System The Institutional Perspective R. Tucker Scully INTRODUCTION m e Antarctic Treaty and the agreed recommendations and separate conventions developed pursuant to the treaty compose a system for managing activities in Antarctica-- those activities that were taking place in 1959 when the treaty was concluded as well as activities that have developed since then. Analysis of the treaty system logically proceeds from two general perspectives: first, consideration of the substantive provisions of the treaty and the content of the steps undertaken under the aegis of the treaty--an analysis of what the treaty system has accomplished; and second, consideration of the process by which these steps have been accomplished--an analysis of how the treaty system operates. The emphasis of this chapter is on the latter perspective. However, the sub- stantive elements of the Antarctic Treaty System are closely linked to the manner in which the system operates, and a summary of these elements serves as a necessary backdrop. THE ANTARCTIC TREATY The basic obligations in the Antarctic Treaty relate to the dedication of Antarctica exclusively to peaceful purposes and to maintenance of the freedom of scientific research there. In its preamble, the treaty recognizes that "it is in the interest of all mankind that Antarctica be used exclusively for peaceful purposes. n The preamble further expresses the conviction that "a treaty ensuring the '~se of Antarctica for peaceful purposes only and the continuance of international harmony in Antarctica will 391
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392 further the principles and purposes embodied in the Charter of the United Nations." The preamble articulates objectives with respect to scientific research that reflect the stimulus to conclu- sion of the treaty provided by the cooperative scientific programs undertaken in Antarctica during the International Geophysical Year. It acknowledges "the substantial con- tributions to scientific knowledge resulting from inter- national cooperation in scenic invests cation in ~ . . . .. · . · _ · · . . . Antarctica" and expresses the conviction that "establish- ment of a firm foundation for such cooperation on the basis of freedom of scientific investigation as applied during the International Geophysical Year accords with the interests of science and the progress of all mankind. n To give effect to the goals encompassed in the pre- amble, the treaty provides that Antarctica shall be used exclusively for peaceful purposes. It bans any measures of a military nature, including establishment of bases or fortifications, military maneuvers. and the testing of weapons. These prohibitions do not preclude use of military personnel or equipment for scientific research or any other peaceful purpose. The treaty also bans nuclear explosions in Antarctica as well as the disposal there of radioactive waste material. The treaty provides for the continuation of the freedom of scientific research in Antarctica and international cooperation therein as applied during the International Geophysical Year. Further, the parties to the treaty agree, to the greatest extent practicable and feasible, to exchange information regarding plans for scientific programs in Antarctica, to exchange scientific personnel among expeditions and stations in Antarctica and to exchange and make freely available scientific observa- tions and results from Antarctica. Finally, in the promotion of international cooperation in scientific research in Antarctica, every encouragement is to be given to the establishment of cooperative working relations with those U.N. specialized agencies and other international organizations having a scientific or technical interest in Antarctica. Relatedly, the treaty obliges each party to provide advance notice of (1) all expeditions to Antarctica on the part of its ships or nationals and all expeditions to Antarctica organized in or proceeding from its territory, (2) all stations in Antarctica occupied by its nationals, and (3) any military personnel or equipment to be intro- duced into Antarctica in support of scientific research or other peaceful uses. . . . . . .
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393 To ensure compliance with its provisions and promote its objectives, the treaty establishes a right of on-site inspection of all stations and installations in Antarc- tica. Each consultative party to the Antarctic Treaty has the right to designate observers, whose names shall be communicated to all other consultative parties. Each observer so designated enjoys complete freedom of access at any time to any or all areas of Antarctica. The treaty further stipulates that all areas of Antarctica, including all stations, installations, and equipment within those areas and all ships and aircraft at points of discharging or embarking cargoes or personnel in Antarctica, shall be open at all times to inspection by designated observers. To establish these basic obligations relating to the peaceful use of Antarctica and to scientific research, the Antarctic Treaty also had to deal with basic legal and political differences over the status of Antarctica. Seven of the original signatories--Argentina, Australia, Chile, France, New Zealand, Norway, and the United Kingdom--assert claims to territorial sovereignty in Antarctica. The other five original signatories-- Belgium, Japan, South Africa, the USSR, and the United States--neither assert nor recognize such claims. Article IV of the treaty incorporates an imaginative juridicial formulation through which the parties agree to disagree over sovereignty in Antarctica. Article IV provides that nothing contained in the treaty be interpreted as A renunciation by any party of previously asserted rights of or claims to territorial sovereignty in Antarctica, · A renunciation or diminution by a party of any basis of claim to territorial sovereignty in Antarctica, or · Prejudicing the position of any party as to recognition or nonrecognition of any other state's right of or claim or basis of claim to territorial sovereignty in Antarctica. Further, Article IV establishes that no acts or activities taking place while the 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 shall be asserted while the present Treaty is in force. n
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394 Article VI of the treaty delineates its area of appli- cation as "the area south of 60° south latitude, including all ice shelves." It adds, however, that "nothing in the present Treaty shall prejudice or in any way affect the rights, or the exercise of rights, of any state under international law with regard to the high seas within that area." The juridical provisions of the Antarctic Treaty con- tained in Articles IV and VI are of central importance. They incorporate the accommodation between claimant and nonclaimant that permitted the conclusion of the treaty. These provisions create the means for parties to the treaty--starting from different assumptions--to apply common obligations to activities in Antarctica. They establish the basis for international cooperation in Antarctica and thus for the evolution of the Antarctic Treaty System. As has often been pointed out, the Antarctic Treaty is a limited-purpose agreement. It sets out far-reaching obligations, which maintain Antarctica as a zone of peace and free and cooperative scientific research. It incor- porates an imaginative juridical formulation to permit effective implementation of these obligations. However, the treaty did not deal with all possible activities in Antarctica and did not extend the juridical accommodation to those activities with which it did not deal. At the same time, the treaty provides a mechanism for addressing new activities and new circumstances in Antarctica. Article IX of the treaty provides that the 12 original contracting parties meet within two months of entry into force of the treaty, and at suitable intervals thereafter, For the purpose of exchanging information, consulting together on matters of common interest pertain- ing to Antarctica, and recommending to their governments measures in furtherance of the principles and objectives of the treaty. In addition to representatives of the 12 original signatories, participation in the meetings referred to ill Article IX is open to representatives of any party that later accedes to the treaty during such time as that party demonstrates its interest in Antarctica by the conduct of substantial scientific research activity there, such as the establishment of a scientific station or the dispatch of a scientific expedition. . (It should be noted that the Antarctic Treaty is open to accession by any member of the United Nations or by any other state so invited by the consultative parties to the treaty.)
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395 The meetings provided for in Article IX are known as consultative meetings. Since the Antarctic Treaty entered into force in 1961, there have been 12 regular consulta- tive meetings held at approximately two-year intervals. The next is planned to be held in Brussels in October 1985. There are now 16 consultative parties entitled to participate in these meetings. Four acceding parties have met the activities criterion of Article IX and joined the twelve original signatories in participating in consultative meetings--Poland in 1977, the Federal Republic of Germany in 1981, and Brazil and India in 1983. The consultative mechanism outlined in Article IX of the treaty lies at the heart of what is known as the Antarctic Treaty System. It has been the vehicle for the development of agreed recommendations, to give effect to the substantive provisions of the treaty and, equally important, to delineate and respond to new issues and situations that have arisen since 1961. At the same time, the consultative mechanism has itself demonstrated a considerable development as it has been applied to respond to the substantive requirements of evolving activities in Antarctica. THE ANTARCTIC TREATY SYSTEM--SUBSTANTIVE CONTENT The Antarctic Treaty System, thus, refers to the Antarctic Treaty and the recommendations, measures, and agreements developed pursuant to the treaty, taken together with the consultative mechanism itself. There have been 138 agreed recommendations to governments developed at the 12 regular consultative meetings held since 1961. The agreed recommendations have dealt with a wide variety of subject areas, spanning the range of possible human activities in Antarctica. These subject areas include the following: · Facilities of scientific research, including the designation of Sites of Special Scientific Interest, where human activity is strictly limited to facilitate particular kinds of scientific observation; · Cooperation in meteorology and in the exchange of meteorological data, including procedures for integrating antarctic data into worldwide analytical systems; .
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396 · Cooperation in telecommunications, including procedures for contact between stations in Antarctica; · Cooperation in air transport and logistics, including search and rescue and emergency assistance; . Tourism, including development of guidance for visitors to Antarctica to ensure observation of the measures adopted to protect the antarctic environment from harmful impacts; · The impact of humans on the antarctic environ- ment, including a recommended code of conduct for stations in Antarctica and recommendations to develop procedures for assessing impacts of operations in Antarctica; The preservation of historical sites and monuments; · Exchange of information, including procedures for elaborating the advance notification and data sharing obligations of the treaty; · The operation of the Antarctic Treaty System; and · The preservation and conservation of wildlife and living resources in Antarctica, including the Agreed Measures for the Conservation of Antarctic Fauna and Flora, which established a system of specially pro- tected species and specially protected areas to ensure that the impacts of human activity on native species of wildlife in Antarctica are properly controlled and regulated. Equally important, there have been agreed recommenda- tions concerning antarctic resources. With respect to living resources, consultative meeting recommendations have led to the negotiation and conclusion of the 1972 Convention for the Conservation of Antarctic Seals and the 1980 Convention on the Conservation of Antarctic Marine Living Resources. The Convention for the Conservation of Antarctic Seals, which entered into force in 1978, applies to the area of the Antarctic Treaty and prohibits the killing or captur- ing of Ross seals, southern elephant seals, and southern fur seals. It establishes quotas for the takes of crab- eater seals, leopard seals, and Weddell seals as well as closed seasons for sealing, seal reserves, and sealing zones. The convention is designed to create a means of controlling commercial sealing in Antarctica should such activity emerge (or re-emerge). It calls upon the Scientific Committee on Antarctic Research (SCAR) to perform at least for an initial period scientific and
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397 advisory functions, but also provides for the establish- ment of permanent machinery should commercial sealing be initiated. To date, commercial sealing has not developed. The Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) entered into force in April 1982. As is indicated in its title, CCAMLR has as its objective the conservation of antarctic marine living resources, with conservation understood to include rational use of resources. CCAMLR rests on an "ecosystem approach" to management of living resources and requires that any harvesting activities be conducted in accordance with conservation principles designed to ensure the health of target and dependent populations, to maintain eco- logical relationships, and to prevent irreversible changes in the antarctic marine ecosystem. Consistent with its conservation objectives, the convention applies to a geographic area designed to approximate the full extent of the antarctic marine ecosystem. This area, defined by specific coordinates, extends to those waters found south of the Antarctic convergence, or polar front, which is the transition zone between antarctic waters to the south and warmer sub- antarctic waters to the north. It should be noted that the convention area is considerably larger than that covered by the Antarctic Treaty (which applies to the area south of 60°S latitude). The marine area covered by the convention may offer significant potential for harvesting. At the same time, scientific investigations have indicated that the antarctic marine ecosystem--which is characterized by short, simple food chains and dependency upon a single species, antarctic krill--may be particularly vulnerable to uncontrolled harvesting. For this reason, the consultative parties committed themselves to conclusion of a conservation system prior to the initiation of large- scale harvesting activities. Implementation of the con- vention therefore offers an unusual opportunity to elaborate and apply an effective management framework to these resources before they become the object of signifi- cant exploitation pressure. The convention deals with basic differences of view over the existence and nature of marine jurisdiction in the convention area, which derive from the divergence over claims to territorial sovereignty in Antarctica. However, in a manner parallel to the Antarctic treaty, CCAMLR provides the basis for its parties to cooperate in
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398 elaborating an effective management system without prejudice to their juridical positions. The convention also provides for the establishment of machinery necessary to carry out its objectives. This includes the Commission for the Conservation of Antarctic Marine Living Resources, with headquarters in Hobart, Tasmania; the Scientific Committee for the Conservation of Antarctic Marine Living Resources, designed to provide objective scientific assessments and recommendations to the commission; and a secretariat to serve both the commission and scientific committee. Since the entry into force of CCAMER, there have been annual meetings of the commission and its scientific committee. The first two annual meetings (at the headquarters site in Hobart, Tasmania) were concerned largely with start-up functions--establishment of the secretariat, elaboration of the headquarters agreement, rules and procedures, and staff regulations and financial matters including budgets and financial regulations. At the same time, the scientific committee made substantial progress in delineating its initial program of work. The third annual meeting of the commission and the scientific committee took place in Hobart on September 3-14, 1984. The 16 members of the commission partici- pated, as well as observers from Brazil and Sweden and six international organizations. At the 1984 annual meeting initial measures dealing with fishing activities in Antarctica were adopted. The transition from the start-up phase to the implementation stage of CCAMLR seems to have taken place. The fourth annual meeting takes place in September, 1985. With respect to antarctic mineral resources, the Antarctic Treaty consultative parties, at the eleventh consultative meeting, held in Buenos Aires in 1981, agreed that a regime for antarctic mineral resources should be concluded "as a matter of urgency." The relevant recommendation--Recommendation XI-l--called for convening a special consultative meeting to elaborate a regime and to undertake other steps relating to the negotiations, including a decision as to the form of the regime and procedures for its adoption. The term "regime" used in Recommendation XI-1 is understood to mean an international system for making decisions about possible mineral resource activities in Antarctica. Essentially, the system would have as its purpose determination of the acceptability of mineral resource activities in Antarctica, should interest in
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399 these develop, and the management of any such activities determined to be acceptable. Specifically, Recommendation XI-1 provided that the regime should include means for (1) Assessing the possible impact upon the antarctic environment of antarctic mineral resource activities; (2) Determining whether such activities are acceptable; (3) Governing the environmental, technological, political, legal, and economic aspects of such activities as may be found to be acceptable; (4) Establishing rules for the protection of the antarctic environment; and (5) Ensuring that any antarctic mineral resource activities undertaken are in strict conformity with such rules. The consultative parties reaffirmed their commitment to ensure that no exploration or development of antarctic mineral resources take place while making progress toward the timely adoption of an agreed regime. They also identified a number of principles and elements that should be reflected in the regime. These include the following: . Maintenance of the Antarctic Treaty in its entirety, · Ensuring protection of the unique antarctic environment and of its dependent ecosystems, · Ensuring that the interests of all mankind in Antarctica are not prejudiced, · Ensuring that the principles of Article IV of th Antarctic Treaty are safeguarded, · Inclusion of procedures for adherence by states other than consultative parties, · Application of the regime to all mineral resource activities on the Antarctic continent and its adjacent offshore areas but without encroachment on the deep seabed, · Provision for cooperative arrangements between the regime and other relevant international organizations, and · Promotion of the conduct of research required to make the necessary environmental- and resource- management decisions. e
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400 It is not known at this stage whether there are deposits of mineral resources in Antarctica whose development would be economically feasible. The commit- ment of the consultative parties to negotiate a regime rests on the belief that it is important to have an effective mechanism in place for making informed decisions about possible mineral resource activities before any specific interest in those activities might develop. The consultative parties share a commitment to ensure that no mineral resource activities take place unless it can be demonstrated that they could be undertaken in an environ- mentally sound fashion. Agreement to develop such a regime also reflects a determination that interest in antarctic mineral resource activities, should it develop, does not become the source of international discord or conflict. The first session of the special consultative meeting on antarctic mineral resources convened to begin the process of elaboration of the regime took place in Wellington, New Zealand, in June 1982. This has been followed by an informal session, also in Wellington, in January 1983; a formal session in Bonn in July 1983; an informal working group in Washington in January 1984; an informal session in Tokyo in May 1984; and an informal session in Rio de Janeiro in February/March 1985. The next round takes place in Paris in September/October 1985. THE ANTARCTIC TREATY SYSTEM--INSTITUTIONAL RESPONSE A summary of the substantive elements of the Antarctic Treaty System reveals a complex and evolving pattern of measures for ensuring necessary coordination and manage- ment of activities in Antarctica. This pattern also represents a set of institutional responses or perhaps institutional processes. The Antarctic Treaty itself pays scant attention to institutional elements. Article IX, as is indicated above, makes provision for consultative meetings, but, other than calling for such a meeting within two months of entry into force and "thereafter at suitable intervals and places, n does not address the operation and organiza- tion of these meetings. As I have indicated elsewhere, "the lack of institutional provisions in the Treaty... appears to stem more from an intentional desire to provide flexibility in future institutional development rather than an inability to agree upon institutional
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401 mechanisms. al Certainly, the Antarctic Treaty System has demonstrated flexibility and pragmatism in response to new issues and circumstances. From the outset, the Antarctic Treaty System has been science intensive. A primary impetus to conclusion of the treaty itself came from the scientific community, which had been involved in the International Geophysical Year (IGY) and which wished to perpetuate the creative arrangements for cooperative scientific research carried out during the IGY. In fact, the nongovernmental body that was formed to coordinate IGY programs in Antarctica-- SCAR--was placed on permanent footing even prior to entry into force of the treaty. SCAR, a committee of the International Council of Scientific Unions, acts as the key, though informal, vehicle through which the scientists active in Antarctica coordinate scientific activities and scientific priorities. Equally important, SCAR has also functioned as the scientific advisory body for the Antarctic Treaty System from the outset. The linkage between SCAR and the Antarctic Treaty consultative parties is an indirect one. Recommendations to and from SCAR are conveyed through the individual national committees of SCAR rather than directly to or from governments. Nonetheless, SCAR has been instrumental in providing expert scientific advice on issues requiring common action by the consulta- tive parties and, further, in identifying issues in need of such attention. Because of the nature of its linkage to the consultative parties, SCAR plays an important peer-review function, bringing to bear an independence in scientific advice and judgment on the operation of the consultative mechanism. Supported from the outset by SCAR, the consultative parties, on the basis of the provision for meetings contained in Article IX, have elaborated an effective consultative mechanism. The practice has emerged of holding a regular consultative meeting at approximately two-year intervals. The site of these meetings rotates among the consultative parties based on alphabetical sequence (in English). No permanent secretariat has been established for the consultative mechanism, but the secretariat function rotates with the responsibility of the host country. The host of the next consultative meeting undertakes the necessary preparations, including organization of a meeting or meetings to prepare the agenda for the consultative meeting as well as coordina- tion of communications and information flow among the
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402 consultative parties in the period leading up to the meeting. Early in the development of the consultative mechanism, the need to supplement the regular biennial consultative meeting forum with techniques for directing concentrated attention to particular issues or subject areas became apparent. These techniques have included meetings of specialists or experts to bring to bear particular knowledge or experience to the resolution of particular issues. For example, there have been three Antarctic Treaty meetings on telecommunications, which provided detailed recommendations acted on at subsequent regular consultative meetings. In analogous fashion, groups of experts have been constituted at regular consultative meetings to examine and report on particular subject areas. This trend toward development of distinct negotiating forums accountable to, but distinct from, the regular consultative meeting has led to the emergence of the special consultative meeting. The first special con- sultative meeting was held in London, in 1977, to address the question of Poland's participation in regular con- sultative meetings pursuant to Article IX of the treaty. At that meeting, the participants agreed that Poland should be seated at the next regular consultative meeting and elaborated procedures for considering such instances in the future. The procedures include provision for convening special consultative meetings. The third special consultative meeting, in 1981, confirmed the consultative status of the Federal Republic of Germany; the fifth special consultative meeting, in 1983, confirmed the consultative status of Brazil and India. The second and fourth special consultative meetings were convened to deal with resource issues--antarctic marine living resources and antarctic mineral resources, respectively. An antecedent for the special consultative meetings is to be found in the special preparatory meeting on antarctic mineral resources, which took place in Paris in 1976 to prepare for the item on mineral resources on the agenda of the ninth consultative meeting. The second special consultative meeting resulted from Recommendation IX-2 of the ninth consultative meeting, which called for such a meeting to elaborate a draft regime on antarctic marine living resources and to determine its form as well as procedures for its adoption. The second special consultative meeting held three sessions: the first in Canberra in January/February 1978, the second in Buenos
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403 Aires in July 1978, and the third in Canberra in May 1980, immediately prior to the diplomatic conference that concluded the CCAMLR. These formal sessions were sup- plemented by intercessional meetings and consultations of an informal character. As indicated earlier, the same pattern is being fol- lowed with regard to antarctic mineral resource issues. The fourth special consultative meeting opened with a formal session in Wellington in June 1982, and has been followed by one formal session, three informal sessions and an informal working group meeting. The institutional development of the Antarctic Treaty System has also included negotiation of separate legal instruments, specifically, the Convention for the Conservation of Antarctic Seals concluded in 1972 and the CCAMLR concluded in 1980 (whose provisions are described in the previous section). The initiative for each of these conventions--which, though separate legal instru- ments, are tied closely with the Antarctic Treaty-- emerged from the consultative mechanism. Each was preceded by agreement by the consultative parties to act in accordance with interim guidelines while developing the legal arrangements determined to be necessary. (It should be noted that the commitment by the consultative parties to ensure that no commercial mineral resource activities take place while making progress toward conclusion of a regime for antarctic mineral resources is another example of this practice.) The Convention for the Conservation of Antarctic Seals foresees the establishment of permanent machinery to regulate sealing activities in Antarctica if and when commercial sealing occurs. AS noted above, the need for such machinery has not arisen, and SCAR continues to perform--on an interim basis--necessary institutional functions under that convention. With the entry into force of the CCAMLR, however, there have been created continuing institutions that are distinct from the consultative mechanism itself. Though CCAMLR represents an important component of the Antarctic Treaty System, it establishes for the first time within the system a separate regulatory mechanism commission and scientific committee--and a permanent secretariat. This development responds to the requirements of pursuing effective management of the antarctic marine ecosystem. It also represents an important stage in the evolution of institutional techniques within the Antarctic Treaty System.
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404 The elaboration of the consultative mechanism-- including the development of separate instruments and new institutions--has been accompanied by the development of ties with other international bodies. Cooperative working relationships with U.N. specialized agencies and other international organizations having scientific or tech- nical interest in Antarctica are foreseen in Article III(2) of the treaty. In addition to the long standing ties between SCAR and the consultative mechanism, working relationships have been developed with a number of international bodies, including the World Meteorological Organization, the International Telecommunications Union, the Intergovern- mental Oceanographic Commission (IOC), and the Inter- national Civil Aviation Organization. CCAMLR also makes specific provision for establishment of such working relationships. At the most recent meeting of the CCAMLR in September 1984, observers participated from the U.N. Food and Agriculture Organization, the International Whaling Commission, the International Union for the Conservation of Nature and Natural Resources, and the Scientific Committee on Oceanographic Research, as well as from SCAR and the IOC. - As a conclusion to this section on the institutional response of the Antarctic Treaty System, I would like to repeat the assessment of the nature of the system which I set forth in 1982: The system which has evolved under the Antarc- tic treaty appears both simple and pragmatic. These characteristics should not mask the fact that the treaty system has also been flexible and innovative in response to new and evolving issues. Within this system, the consultative mechanism itself--the consultative meetings--plays the primary role in the identification of issues requiring common action or response by the Consultative Parties. Even with regard to subject areas, which eventually elicited establishment of new institutions such as conservation of marine living resources, the need for a regime and the purposes and principles it should incorporate were defined within the regular meetings of the Consultative Parties, drawing upon the scientific advice of SCAR. Within the framework of this consultative mechanism, a wide variety of techniques have been
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405 established for the analysis of possible responses to issues once identified. This function has been performed at the regular Consultative Meetings themselves or through more specialized meetings, including Special Consultative Meetings. Equally important, these techniques provide a means for achieving consensus among the Consultative Parties on the appropriate type of solution to the issue at hand. Finally, the system has adopted a number of institutional means for responses to issues requiring common action. These range from the agreed measures approach, fully within the consultative mechanism, to the establishment of new instruments such as the CCAMLR which can stand independently of that mechanism. The Convention on the Conservation of Antarctic Seals represents a mid-way point on this spectrum. In contrast to many collective international undertakings, the Antarctic Treaty system has created new institutions and techniques only as and when necessary. New institutions and new institutional techniques have been conceived and perfected in response to its well-defined need and well-defined problems. This decentralized and evolutionary approach to institutional building has permitted the institutions themselves to be tailored to the function they were designed to perform. For example, differing components of the system may involve differing types of obligations, differing participation and differing types of relationships to other international bodies. The CCAMLR, again, illustrates this point. The Convention applies to an area which is larger than that of the Antarctic Treaty area. The require- ments of conserving antarctic marine living resources were determined to be controlling rather than the definition of the Antarctic Treaty area. The CCAMLR also envisages participation in the management system by a group of countries which may, and in fact does, differ distinctly from the Consultative Parties currently entitled to participate in the meetings provided for in Article IX of the Antarctic Treaty. All of the Consultative Parties are entitled to participate but additional parties engaged in research or harvesting activities are also so entitled. The
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406 concept of an activities criterion such as that included in the Antarctic Treaty has been adapted to the requirements of living resources management. This decentralized and functionally-oriented system which has emerged over the past two decades, has played an important part in the practical realization of the obligations of the Antarctic Treaty and the unique form of inter- national cooperation which has taken place pursuant to it. It demonstrates the will of the Consultative Parties not only to implement the provisions of the Treaty, but also to deal effectively with the new strains and challenges generated by resource issues. In fact, the emergence of resource issues has provided a major impetus to the evolution of the system and may well be the key to its future development.2 OPERATION OF THE ANTARCTIC TREATY SYSTEM In the two years since reaching the above conclusion about the Antarctic Treaty System (which I consider equally valid today), there has been increased attention to the operation of the system. The subject figured prominently on the agenda of the twelfth Antarctic Treaty consultative meeting, held in Canberra in September 1983, and is likely to be an important item at the thirteenth consultative meeting in late 1985. Antarctica and the Antarctic Treaty System have become the object of growing international attention and inter- est. In the past two years, 9 nations have acceded to the Antarctic Treaty, bringing the total number of parties to 32. Two parties, Brazil and India, have achieved consultative status, bringing the total number of con- sultative parties to 16. All of CCAM~R's original signatories are now parties to the convention, as are the European Economic Community, Spain, Sweden, Uruguay, the Republic of Korea, and India. Finally, as a reflection of the increased awareness of Antarctica among nations that are not party to the treaty, an item on Antarctica has been included on the agenda of the United Nations, and, as a result, an extensive report on Antarctica has been prepared and circulated by the U.N. Secretary- General. This interest has had the result of illuminating the important accomplishments of the Antarctic Treaty System
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407 The realization of the principles and purposes of the treaty, the implementation of its specific provisions, and the measures adopted pursuant to the treaty constitute an impressive record. Concurrently, attention has been directed toward the operation of the Antarctic Treaty System--particularly to its decision-making and partici- pation requirements and to the relationship of the system to other elements of the international system. This effort to bring the institutional perspective (broadly construed) to bear on the Antarctic Treaty System will therefore conclude by seeking to address these areas. The operation of the Antarctic Treaty System--both in the substantive sense and in the institutional sense-- rests on the juridical provisions contained in Article IV. These provisions reflect two basic conclusions: · First, that it is not necessary to resolve differences over the legal and political status of Antarctica in order to establish the basis for managing human activities in Antarctica, and · Second, that efforts to resolve differences over the legal and political status of Antarctica would be inconsistent with the commitment to reserve Antarctica exclusively for peaceful purposes. Recognition of these factors permitted negotiation of the Antarctic Treaty. The framers of the treaty perceived that an effort to resolve the claims issue--either through perfection and recognition of claims to territorial sovereignty in Antarctica or through extinguishing and renunciation of such claims--would simply have resulted in discord and conflict. They also understood that it is possible, without agreeing on who, if anyone, owns Antarctica, to construct a system for applying necessary obligations and controls on activities in Antarctica. The conclusions reached by the framers of the treaty have been corroborated in the years of operation of the treaty system. In a period of ideological competition-- East and West, North and South--there is no doubt that an effort to determine the legal character of Antarctica would undercut the pattern of peaceful international cooperation which has emerged there. Equally, the development of an effective system of managing activities in Antarctica has demonstrated that there is no need for such determination. The "irresolution" of the claims question is often considered a drawback of the Antarctic Treaty. In fact, it has proved to be one of its
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408 strengths. The Article IV approach has been effective in neutralizing political and ideological impediments to dealing effectively with antarctic issues, and the operation of the treaty system stands as an unusual example of conflict management and avoidance. The Article IV approach--to use that shorthand--has important implications for decision-making and partici- pation within the Antarctic Treaty System as well as for the relationship of the system with the international community. First, it has substituted a functional basis for a political or ideological basis for involvement in decision-making. Commitment to a particular legal status for Antarctica does not establish eligibility to take part in decisions relating to activities in Antarctica. Demonstration of concrete interest in those activities becomes the standard. The activities criterion for achieving consultative status under the Antarctic Treaty or for membership in the Commission under CCAMbR therefore flows from the Article IV approach. This approach has permitted an extremely diverse group of countries to cooperate effectively on Antarctic matters even during periods when relations among indi- vidual consultative parties have otherwise been hostile or even combative. It is a signal achievement that the Antarctic Treaty and all the measures and agreements that together with it constitute the Antarctic Treaty System have been negotiated by consensus. Second, and relatedly, the Article IV approach implies a functional cast to the relationships between the Antarc- tic Treaty System and other components of the inter- national system. The importance of not seeking to impose a particular legal status on Antarctica is as essential to the effective relationships among the international institutions concerned with Antarctica as it is among the states concerned. A third implication of the Article IV approach is that the system must be open to new participants. Specifi- cally, this approach entails that any state be able to express an interest in Antarctica by accession to the treaty or to another component of the treaty system, and that any state that gives concrete form to such interest by actual involvement in activities in Antarctica, be able to participate in decision-making regarding those activities. Finally, the approach implies a responsibility on the part of those participating in the Antarctic Treaty System to ensure that there is available adequate
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409 information about Antarctica and the operation of the system. The Antarctic Treaty System places an emphasis on demonstration of concrete interest in Antarctica. For such a system to operate effectively, there must be sufficient information available to allow potential participants--states or organizations--to make informed judgments as to their interest in Antarctica. CONCLUSION At this point, it is perhaps appropriate to look for trends in the ongoing evolution of the Antarctic Treaty System. As is evident from the previous section, the catalyst to the development of the treaty system is the approach of defining and resolving issues inherent in Article IV of the treaty. This approach--with its consequent functional, activities-oriented, and consensual form of decision-making--remains and will remain the basis for the successful operation of the treaty system. With this in mind, there are in the results of the most recent regular consultative meeting--the twelfth, held in Canberra in September 1983--indications of the direction of the evolution of the Antarctic Treaty System. First, parties to the Antarctic Treaty that are not consultative parties participated as observers, and the rules of procedure of consultative meetings were amended to provide for such participation. The question of observers had been discussed informally at previous consultative meetings and was a specific item on the agenda of the eleventh consultative meeting in 1981. The provision for participation by nonconsultative parties initiated at the twelfth consultative meeting represents a response to the growth in interest in Antarctica, which has also been reflected in increased accession to the treaty. Action at the twelfth consultative meeting was followed by similar agreement in the special consultative meeting on antarctic mineral resources; nonconsultative parties to the antarctic treaty were invited to attend as observers the antarctic mineral resource negotiations. As noted earlier, there was attendance at the 1984 CCAMLR meeting by observers from Spain and Sweden (parties to CCAMLR) and Brazil (a nonparty) as well as by interested international organizations. Discussions at the twelfth consultative meeting also emphasized further development of working relationships
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410 between the components of the Antarctic Treaty System and other international organizations interested in Antarc- tica. The report of the meeting indicates agreement that consideration should be given in preparation of agendas for future consultative meetings as to whether discussion of particular agenda items would be assisted by attendance of a U.N. specialized agency or other international organization having a scientific or technical interest in Antarctica. Further, Recommendation XII-6, Operation of the Antarctic Treaty System," calls for bringing to the attention of such organizations material in consultative meeting reports relevant to their interest in Antarctica. With respect to the general question of information about the Antarctic Treaty System, the same recommenda- tion of the twelfth consultative meeting suggested a number of items to ensure broader availability of con- sultative meeting reports, the record of agreed recom- mendations adopted at consultative meetings, and consultative meeting documentation. The consultative meeting also called on the depository government (United States) to undertake a general examination of this issue. While treatment of the information requirements of the Antarctic Treaty System will be a continuing item, the recommendations developed at the twelfth consultative meeting represent the fruition of discussions initiated at the ninth consultative meeting in 1977. From these developments, there emerges a picture of the Antarctic Treaty System in the process of responding to and accommodating new circumstances and situations. The specific nature of this response involves an oppor- tunity for greater involvement in the operation of the consultative mechanism by nonconsultative parties, an opportunity for the emergence of closer functional ties between the Antarctic Treaty System and other inter- national bodies, including the functional components of the U.N. system, and an opportunity for greater information flow to and from the components of the Antarctic Treaty System. From a broader perspective, however, those developments fit the pattern of flexible and pragmatic institutional development that has been characteristic of the Antarctic Treaty System from its earlier days. It is the picture of this resiliency that permits confidence that our children and grandchildren will also see Antarctica as an area of the world reserved exclusively for peaceful and cooperative pursuits and, it is hoped, an example that will have been emulated elsewhere.
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411 NOTES 1. Scully, R.T. 1983. Alternatives for Cooperation and Institutionalization in Antarctica: Outlook for the 1990's. In F. Orr ego Vicuna, ed. Antarctic Resources Policy: Scientific, Legal and Political Issues, Cambridge University Press (Cambridge), 1983, p. 283. 2. Scully, R.T. 1983. Alternatives for Cooperation and Institutionalization in Antarctica: Outlook for the 1990's. In F. Orrego Vicuna, ed. Antarctic Resources Policy: Scientific, Legal and Political Issues, Cambridge University Press (Cambridge), 1983, p. 291-292.
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Representative terms from entire chapter: