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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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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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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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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:
consultative meeting
