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27. Pane] Discussion on Institutions of the Antarctic Treaty System The panel consisted of Lee A. Kimball (moderator), Cristian Maquieira, and Rolf Trolle Andersen The summarized presentations of three participants who requested the opportunity to make statements on the theme of this section are included below. Their remarks are followed by those of the panel. REMARKS BY BO JOHNSON THEUTENBERG Theutenberg noted Sweden's accession to the Antarctic Treaty on April 24, 1984, and to the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR) in June 1984. He described Sweden's early involvement in both antarctic and arctic science, as had been mentioned in other workshop sessions, but noted that since the 1959 treaty had been concluded Swedish participation in Antarc- tic science had been manifested primarily by individual scientists. In this context he cited the transition--once the Antarctic Treaty was concluded--from individual scien- tists and scientific societies to government representa- tives as the major determinants of antarctic developments. Since Sweden was not an original signatory to the Antarc- tic Treaty, its government at the time the treaty became effective was not interested in being restricted to non- consultative status, nor did the Swedish scientific society seek government support to promote its specific interests within the treaty system. So for 25 years pursuit of antarctic interests in Sweden had lapsed. During the same period, as securing access to resources had become a critical national objective, science and technology forced their way into the lives of states. Theutenberg noted that these factors affect the formation of national foreign policies as well as principles of 413

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414 international law, not least those regarding protection of nature and the development of international environ- mental law. Sweden was no exception, and it now wished to maintain and even expand its scientific interests with regard to neighboring ocean areas, including polar research. In this regard, he stated, Sweden must seek cooperation with other interested nations. Renewed efforts by Swedish scientists in these fields have made it natural for Sweden to enter the Antarctic Treaty System (ATS) and the Scientific Committee on Antarctic Research (SCAR), and Sweden will seek to promote regional and international scientific cooperation in polar areas. In commenting on the Antarctic Treaty, Theutenberg suggested two alternative outcomes that might have resulted had the 1959 negotiations failed: military conflict in the area or a legal/political solution to the claims based on argumentation by claimants and nonclaim- ants. While the first alternative might have de facto settled the territorial status of Antarctica, he doubted that a legal/political solution could have been arrived at. In either case, however, sovereignty in Antarctica would have been resolved long ago. Had that been the case, the wider circle of nations and other interested parties would never have found themselves today in the position of discussing these matters. He stated that the founding members of the treaty should be given some credit for the course of action taken in 1959, because they actually opened the way for other states to take an active interest in Antarctica and to participate in the Antarctic Treaty. If the treaty system were to fail, he believed that the alternatives for what is called "mankind would probably be much less attractive than under the present regime. Moreover, a common heritage regime could be established only by consensus, as had been done in the Law of the Sea conference, and it was clear that this goal could not be achieved with regard to Antarctica from either a political or a legal point of view. He did not believe that the common heritage principle contains any kind of ownership- or management-oriented elements; it is not in itself a regime for exploitation, common ownership, or joint management of resources. It does contain the legal/ political basis for custodianship and has the meaning that the heritage should be passed on to future genera- tions without destruction. He wondered whether this kind of regime will be of any help to the world community when it comes to the question of exploitation of antarctic resources.

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415 Theutenberg stressed that his country believes that it is important that the treaty system be supported by a wider circle of nations and that in general every member of the international community have a right to follow questions of international importance and advance pro- posals and ideas relating to them, especially concerning environmental protection and exploitation of resources. For states affected by or believing that they have vital interests to preserve in antarctic affairs, he stated, the mechanisms for involvement should be strengthened. He believed that it is difficult enough to solve real conflicts within the ATS as it operates today; but outside parties have no way in a legal sense to intervene in potential conflicts, although they could possibly do so by influencing world opinion. Criticisms of the ATS have therefore arisen because outsiders believe that they have no ability to influence or intervene in affairs affecting them. Taking this into account, some promising proposals exist in the minerals regime negotiations not only for mechanisms that would allow other concerned parties a great deal of influence, but also with respect to some ideas advanced by developing nations. There are also some interesting ideas aimed at environmental protection in the minerals regime papers, which could perhaps be incorporated into the ATS itself. Theutenberg supported working in the direction of openness with regard to environmental issues, possibly by establishing some kind of information and management mechanism in which broader interests could have some influence. Finally, he expressed the hope that the status of observer will provide the nonconsultative states with the ability to influence the important matters discussed at biennial treaty meetings and in the minerals regime negotiations. REMARKS BY ALEXANDRE KISS Kiss elaborated on the background and recent evolution within the international legal system of the ill-defined concept of the Common heritage of mankind, which had arisen a number of times during discussions in the work- shop. He noted its appearance in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty) and in the 1982 Convention on the Law of the Sea. (The Moon Treaty entered into

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416 force on July 11, 1984, whereas the Law of the Sea Convention is not yet in force.) Kiss recalled that as modern international law took definite form at the beginning of the nineteenth century, it resulted in a growing number of treaties whose main characteristic was that they were based on material reci- procity; that is, states accepted obligations restricting their sovereignty in order to gain perceived advantages of equivalent value. As early as 1815, however, a few treaty rules were formulated that were not based on this criterion of material reciprocity. They proclaimed freedom of navi- gation, first in international rivers and later in the newly constructed interoceanic canals of Suez and Panama. Although these were agreements among a limited number of countries, they could be considered the first expression of what could be called the "common interest of mankind a, In the aim of maintaining freedom of international com- munications, states parties accepted obligations without any immediate advantage to themselves. Following World War I, the concept of the common interest of mankind found expression in international labor treaties drafted by the International Labor Organi- zation: States accepted obligations to apply certain social rules to their nationals without any compensation other than the belief that other states would be encour- aged to act in the same way and thus improve human social conditions worldwide. After World War II, this concept was developed in the fields of human rights and environ- mental protection law. . The common feature of all these international treaties, according to Kiss, is that they are not based on reci- procity, unlike most treaty rules, and in particular that they do not ensure any immediate advantage to the con- tracting states. On the contrary, they impose on them obligations that restrict their sovereign rights: States must adopt legislation protecting the fundamental rights and freedoms of individuals or of the environment within their territories, and they may be obliged to explain their acts before international organizations when a violation of their treaty obligations is alleged. States subordinate their immediate interest and their freedom of action in order to promote a superior objective, such as human rights or environmental protection. This works only when all states of the world--or at least those of a certain region--agree likewise to restrict their freedom of action.

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417 Since the early nineteenth century, then, the applica- tion of treaty rules based on the concept of the common interest of mankind had been extended from international waterways to certain substances and situations within national territory. More recently, with the depletion of natural resources owing to growing demand and demographic pressures, a new perspective had appeared: That future generations should not be deprived by human activities of the benefit of natural resources, or, put another way, that this generation has inherited resources that should be managed in a way that quantitatively and qualitatively should offer the same possibilities to its children and grandchildren. The main features of this new regime of the common heritage of mankind are the following: (1) common use of or free access by every nation, (2) prohibition of non- peaceful use, (3) international management with a view to ensuring rational use of resources in the interest of present and future generations, and (4) access by the whole of humankind to an equitable share of the benefits, be they material, cultural, or scientific. Some persons would add a fifth feature: the prohibition of appropriation by states, but this is an open question. It appears in the regime for deep seabed minerals in the 1982 Law of the Sea Convention and in the 1979 Moon Treaty, and it is implicit in the regime for the geo- stationary orbit. Kiss believed that it is questionable whether it could be applied to the radio spectrum or to Antarctica. He added that it should be borne in mind that there are various nonappropriable elements that are not necessarily part of the common heritage of humankind. This is the case with the high seas and the airspace above them as well as with outer space on the whole (though not of celestial bodies). In these areas, which are nonappropriable and should be used for peaceful purposes, there is neither a prohibition on military use nor, as yet, a prescription for international management and rational use. Kiss added that another aspect of the common heritage of mankind was illustrated by the 1972 United Nations Economic, Social, and Cultural Organization (UNESCO) World Heritage Convention. While monuments, historic cities, parks, etc. may remain under national sovereignty, or even as private property, the convention provides that their conservation is in a way under international scrutiny to ensure that they benefit future generations. Several international conventions on the conservation of wild fauna and flora have the same

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418 effect. Thus, while no one contests Italian sovereignty over Venice or the sovereign rights of Kenya to use its territory, the conscience of mankind would hardly accept the destruction of Venice in favor of an industrial complex or the destruction of all wildlife in Kenya. He saw the growth of a sense of moral rights shared by all humanity with respect to cultural and natural components of an increasingly universal civilization. In conclusion, Kiss stressed the important concept of trust: Individual states, groups of states, or in some cases the whole international community are vested with the task of managing, conserving, and transmitting to future generations some essential components of our planet or even of bodies in outer space. The common heritage of humankind could be organized according to different legal patterns, but these patterns all share the four criteria identified earlier. In addition to the resources of the deep seabed and those of celestial bodies, other items falling into this category include the geostationarY orbit, the radio spectrum, Antarctica, components of our cultural and natural heritage, and certain wild fauna and flora. In the future the ozone layer of the Earth's atmosphere, the global climate, and our genetic heritage could be added. In all cases where the concept of the common heritage of humankind has already been applied, the common interest of humankind materialized in a legal instrument without any commensurate material interest being granted to contracting states. In his view, whatever the territorial status of Antarctica might be, the area satisfies the criteria of the common heritage of humankind: All nations have access to it, nonpeaceful and even military uses are prohibited, it is managed by international bodies, and the benefits--that is, the scientific knowledge acquired in Antarctica--are largely shared with the rest of the world community. He believed that this is how the ATS serves the common interest of humankind. REMARKS BY JOSE SORZANO Requesting an opportunity to "critique Zain's critique" of the ATS (see Chapter 21 by Zain Azraai), Sorzano affirmed Zain's impressions of the "reaction of extreme sensitivity and resentment" on the part of the Antarctic Treaty consultative parties (ATCPs) at the United Nations regarding any questioning of the current antarctic system

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419 and Malaysia's initiative at the United Nations. He took note of the reassurances obtained from repeated statements by Malaysia that it does not wish to undermine the ATS, preferring consensus to confrontation, and reported that the ATCPs have reciprocated by showing flexibility and not opposing inscription of the antarctic issue on the United Nations General Assembly agenda nor the production of the United Nations Secretary-General's study of Antarctica. He pointed out, however, that there have been other Malaysian statements of intention that point in different directions and therefore seem incompatible with the reassurances previously articulated by Malaysia. These divergent statements have created a great deal of specula- tion concerning Malaysia's objectives and intentions with regard to the ATS. Sorzano believed that Zain's presentation as set forth in Chapter 21 illustrates this point: Zain examined the possible justifications for the ATS but did not find them persuasive. He argued that a justification based on know- how and expertise is insufficient because it creates a two-tiered, nonuniversal body, which does not meet the criteria of "natural justice" and "interest." The ATCPs had found Malaysia's intentions confusing, because Malaysia was simultaneously saying that it did not want to destroy the treaty and then challenging the treaty's legitimacy; it appears Malaysia seeks consensus and compromise only to raise an issue that cannot be negotiated or compromised. In Sorzano's view, questions of legitimacy by their very nature cannot be compromised; they are zero sum: the treaty is either legitimate or it is not; it cannot be something between. In examining Zain's arguments, Sorzano first wished to distinguish between the basis for territorial claims and the basis for justification of the treaty. While he found it doubtful that the basis for territorial claims could be set aside as a historical anachronism, as Zain sug- gested, nevertheless, even if the claims were set aside, that fact would not impinge on the basic justification and validity of the treaty. He believed that the treaty ~ it_ _ ~ ~ ~ ~ _ stands on its own, independent ot tne claims ana cnelr validity or lack thereof, so that it is not enough to state that territorial claims are not universally recognized to challenge the validity of the treaty. Turning to expertise and know-how as the basis for justification of the treaty, Sorzano noted that this is neither a new nor a negligible justification for

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420 authority or for sharing in authority (e.g., Plato 'S Philospher King) and that it is in widespread use today in both international and domestic politics. Even the most egalitarian democracies restrict voting rights to those who could exercise them rationally; for example, minors and lunatics are excluded. So, too, are two-tiered political systems extremely common. The United Nations Charter created two-tiered systems both in granting veto power to the permanent members of the Security Council and in its grant of powers to the council as compared with the powers of the General Assembly. He believed that Malaysia's own con- stitutional arrangements are a form of two-tiered bicameral parliamentary system, and noted that Malaysia was a founding member and driving force behind two-tiered agreements governing tin and rubber production. He therefore did not believe that "two-tieredness" could be a disqualifying ground for the legitimacy of the Antarctic Treaty. Nor did Sorzano accept that nonuniversality could be used to challenge the legitimacy of the treaty, since there are multiple examples of nonuniversal international institutions, such as the European Economic Community, the United Nations Food and Agriculture Organization, the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD), and UNESCO, whose legitimacy nobody would even dream of challenging. Even the UN General Assembly is not a universal body, since some states, such as Switzerland, are not members. Sorzano concluded by suggesting a political, as opposed to a legal, justification for the Antarctic Treaty. Noting that much has been heard of the uniqueness of Antarctica, he agreed with this assessment in most respects but emphasized that its situation is not unprecedented in history: Following the age of explora- tion and discovery in the sixteenth, seventeenth and eighteenth centuries, there was a need to elaborate a political theory to justify the new governments that were set up in the newly discovered lands. The theoretical work of Hobbes, Locke, and Rousseau postulated a situa- tion of a "state of nature, n in which there was no governmental authority, individuals behaved with unrestrained self-interest, and thus conflict was ever- present. This undesirable state of affairs was ended by a "social contract," in which previously unrelated

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421 individuals voluntarily joined in forming a governing structure based on the consent of its members. In Sorzano's view, the situation before and after the treaty became effective bears a strong similarity first to the "state of nature": no governing authority, unrestrained self-interest, and conflict, and then to the "social contract": a treaty based on consent, setting aside self-interest and creating a governing structure that, like any government's, including Malaysia's, is exclusive, total, and unaccountable. REMARKS BY CRISTIAN MAQUIEIRA Maquieira commented that, having visited Antarctica, he now understood the twinkle in the eye of all those who had come before. This feeling complemented his earlier understanding of the great respect for the treaty system demonstrated by those who had worked with it. Referring to Zain's point about the "totality of ATCP rights with respect to Antarctica, Maquieira did not believe that it is possible to divorce demilitarization and cooperation in antarctic science from cooperation with respect to resources under the Antarctic Treaty. He described the system as placing equal limitations on all parties to it, and believed that it would upset the balance among parties if some of these limitations were incorporated into a resources regime and others were rejected. On the other hand, he believed that the system must prove itself adaptable to states and organizations newly interested in Antarctica in order to make it attractive and acceptable to them. He noted that a start in this direction has already been made with the invitation to the nonconsultative states to attend treaty meetings as observers and with the increased distribution of docu- mentation from treaty meetings, including publication of the Handbook of the Antarctic Treaty System. He also introduced the idea of creating a fund to help developing countries that wished to join the treaty and take part in scientific research. He stated that there is a need to continue and expand scientific cooperation within the ATS and that the interests of the international community require more extensive participation by states in Antarc tic science. These two elements constitute the basis of the fund idea that had been presented in the minerals regime negotiations. (For additional discussion of the -

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422 fund see chapter 20.) He added that all these adapta- tions must be initiated by the parties to the treaty. Maquieira brought up the fact that various proposals for the evolution of the treaty system have been made elsewhere. For instance, he noted from the report of th United Nations Secretary-General that Zimbabwe has proposed the establishment of an international scientific research station.The possibility of establishing a joint scientific venture among groups of developing countries and consultative party states has also been mentioned. It had been noted earlier that SCAR is contemplating establishing a category of "associate state" membership. In addition, various ideas have been proposed to extend the cooperative working relationships between the ATS and other international organizations. Maquieira suggested that a group of developing countries could establish a program of technical cooperation among themselves and then seek, say, United Nations Development Program funding to carry out activities in Antarctica. He cautioned, however, that all these possibilities presuppose Antarctica. e a legitimate and sustained interest in REMARKS BY ROLF TROLLE ANDERSEN Andersen likewise stressed the ability of the ATS to adapt, as demonstrated by the invitation in 1983 to the nonconsultative states to attend treaty meetings. He stated that while consultative status requires a concrete demonstration of interest, there are other ways of par- ticipating in the system, such as through the newly created observer role. He acknowledged that this development will create some difficulties as well, since the sheer number of states involved will of its nature complicate a system that operates by consensus. Andersen believed that further evolution will take place in the system and is desirable. This is a matter that naturally belongs on the agenda of regular consul- tative meetings. During the twelfth consultative meeting, in Canberra in September 1983, an agenda item entitled "The Operation of the Antarctic Treaty System" had resulted in a recommendation on a number of measures to be taken in order further to open up the ATS. With respect to developments in the United Nations, he expressed the view that establishing a United Nations committee on Antarctica is unnecessary and undesirable; a forum already exists within which antarctic matters are

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423 discussed. He urged states interested in antarctic questions to accede to the Antarctic Treaty and express their views within that body. He disagreed with the Malaysian proposal to call for specific comments on the 1984 United Nations study in preparation for the 1985 United Nations General Assembly. It is up to individual governments to review the study, which they are doubtless already doing. Elaborating on the question of the common heritage of humankind, he did not find the principle applicable to Antarctica, inter alla, because (1) there has been human activity in Antarctica for most of the twentieth century, t2) claims to sovereignty exist there, and (3) an existing legal regime applies there. In response to Zain's comments that the parties to the Antarctic Treaty always act in concert, coherence as necessary and desirable: he viewed this It is an impressive demonstration of the importance attached by all the con- sultative parties to the maintenance and strengthening of the ATS. S~qiLARY The final session's discussion encompassed a number of topics raised in earlier sessions that in one way or another relate to the institutional evolution of the ATS. On one level, the legitimacy of the ATS, as opposed to a more universally based system of governance for Antarc- tica, was debated at greater length and depth than in the discussions on this point summarized in Chapters 7 and 20. On a second level, for those who not only endorse the legitimacy of the ATS but believe that the ATS has proved to be a most workable system of governance and appropriately responsive to changing interests and requirements in Antarctica, the key question was to identify the directions in which the ATS should continue to adapt to changing circumstances. The following discussion is divided into sections on legitimacy and the evolution of the ATS, followed by concluding remarks from three of the primary speakers. LEGITIMACY The discussion on legitimacy covered some of the same ground as that outlined in Chapters 7 and 20. Although

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426 action in Antarctica existing prior to completion of the Antarctic Treaty, and they protected their positions-- maintained under Article IV--through the consensus decision-making procedure. Nonetheless, some participants maintained that the claimant/nonclaimant positions in Antarctica contain the seeds of latent conflict and that internationalizing Antarctica might bring about the renunciation of the claims--which in some eyes are an anachronism that newly independent states neither recognize nor acquiesce. Internationalization does not mean that it is essential to create new management institutions or to base them on a one-nation/one-vote decison-making process; the countries nearest Antarctica might be assigned to manage the area, or a condominium system of management could be established. In the view of these participants, united Nations interest does not necessarily mean United Nations control, nor does it mean the destruction of the Antarctic Treaty. The "sacred cow" attitude of the consultative parties that oppose all challenges to the treaty seemed to be a violation of the scientific approach, which was based on questioning the status quo and was enshrined in the purposes of the Antarctic Treaty. While the concept of the common heritage of humankind was deemed appropriate for outer space and the deep seabed, it did not take account of the existing legal situation in Antarctica. The common-heritage principle had been applied to outer space and the deep seabed only by means of consensus. No such consensus exists with respect to Antarctica. Therefore, the principle is clearly not applicable. Moreover, the common heritage was meant only to describe a framework for a future regime. Part XI of the Law of the Sea (LOS) Convention is not the mandatory interpretation of the principle. A regime could be envisaged that, being in full harmony with the common heritage principle, nevertheless would entrust certain states with obligations and rights to ensure the use of Antarctica for the benefit of humankind as a whole. But if the common heritage concept were to be applied in the meaning of Part XI of the 1982 LOS Convention, it would mean the collapse of the treaty system, and this would not be in the interest of humankind. (There was further debate about whether the common heritage concept is an exploitative one. See chapters 19, 20 and 25.) The second question related to Zain's characterization of the rights of the consultative parties as "total, n

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427 that is, bearing on all activities in Antarctica. Divorcing the issue of minerals development from the framework of the ATS, however, was seen by some as undermining the system; it would also remove potential minerals activities from the umbrella of the Antarctic Treaty's emphasis on environmental protection. Others viewed this "totality" as part of a natural evolutionary process under the Antarctic Treaty as new interests and activities arose in Antarctica. The ATS did not ab initio govern all activities in Antarctica, but it demonstrated its flexibility and responsiveness to new circumstances with the adoption of additional legal instruments and recommendations. The third question, that of a forum fully representa- tive of all states' views on antarctic questions, was left to future antarctic symposia and meetings. Its answer is contingent on (1) evolution within the ATS and whether this will be sufficient to provide the forum sought (see the discussion below) and (2) the approach taken in the United Nations and the feasibility of agreement there on the future system of governance for Antarctica. EVOLUTION OF THE ANTARCTIC TREATY SYSTEM Drawing on the speakers' presentations that described the evolution of the ATS to date, the Workshop on the Antarctic Treaty System explored again, in the discussion of institutional changes within the ATS, possible directions for continued adaptation of the ATS that had arisen throughout the workshop. (1) The question of participation in the ATS was addressed again in Chapters 21-26 with respect to nonconsultative parties and international organizations, both governmental and nongovernmental.] It was also raised again with respect to non-United Nations-member states, such as the Republic of Korea, a topic addressed in Chapter 6, and with respect to helping developing countries to take part in antarctic scientific research projects and share in their results. This topic encompasses in addition the question asked in Chapters 13 and 14--how to institutionalize input from the concerned public in a fruitful manner--and the possibility noted in Chapters 19-20 of international comment on decisions pursuant to the minerals regime.

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428 Many speakers acknowledged that there is room to per- fect the evolution of the ATS in cooperating with non- treaty states and international organizations to the benefit of all. Bruckner's presentation in Chapter 22 examined the role of NCPS in the ATS and the criteria governing CP status, in particular the standing of joint scientific research programs in this regard (see Chapter 7). TO .. ~~e ~ I_ 1~ WdS nocea Gnat Increasing cooperation with inter- national organizations could also improve the achievements in Antarctica in fields where these organizations exercise competence. Further study of the types of relationships described by Woolcott (Chapter 25), in order to develop the relationships between the ATS and the United Nations system, was envisaged. Spokesmen for the International Union for the Conserva- tion of Nature and Natural Resources (IUCN) and ASOC made cases for the involvement of these two organizations in the ATS as a measure of the flexibility and institutional development of the system. It was noted that IUCN has expertise relevant to Antarctica, interests in the area, and a broad-based constituency. It could also contribute to worldwide understanding of antarctic issues and is already involved in sponsoring with SCAR a meeting on scientific requirements for antarctic conservation (see Chapter 14). ASOC, founded in 1977, represents 150 member organiza- tions in 35 countries, drawn together by their goal of implementing the World Conservation Strategy developed in 1980 by IUCN, the United Nations Environment Program, and the World Wildlife Fund International. ASOC hoped for more activity with respect to the concept in the Agreed Measures for the Conservation of Antarctic Fauna and Flora, adopted in 1964, which state that the treaty parties consider the treaty area a special conservation area. ASOC believed that Antarctica was legitimately a concern of the international community as a whole. One speaker urged elimination of the "discrimination" against non-United Nations-member states' ability to adhere to the treaty. With respect to participation by developing countries in antarctic science, the point made in the section on Antarctic Science and Chapters 17-20, on the lack of immediacy with respect to any foreseeable benefits from antarctic minerals development and potential sharing of the revenues therefrom, was repeated, emphasizing instead the already extensive benefits derived from scientific and environmental knowledge of Antarctica. It was

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429 suggested that these benefits could be expressly extended to developing countries through SCAR programs for scientific activities and could be underwritten financially by the consultative parties or by some other groups in order to ensure more widespread distribution of the existing benefits of the ATS. Another speaker added that for antarctic science to contribute most effectively to scientific knowledge and associated benefits, it should not be conducted in isolation but should be integrated into domestic science programs and form part of the global research agenda. Otherwise its potential for addressing domestic problems and priorities in many countries would be lost. He believed that the increasing sophistication of science must be used for the benefit of all countries. Perhaps the best way for countries to become influential in the ATS would be to encourage their scientists to cooperate with the countries already active in antarctic science. He added that while his country had never become a member of the Antarctic Treaty, it had taken part in science and supporting activities since 1914. Yet, by providing supplies and commercial equipment for antarctic activities, his country had probably made more money out of Antarctica than any other--an analogy to the saloon- keeper at a gold rush camp: while others made headlines and won or lost fortunes, the saloonkeeper made money. He posed two questions: whether it is necessary to join the ATS to benefit from it, which his country's experience would indicate was not necessarily the case, and whether there is a responsibility on the part of nations benefit- ting from the ATS to join it and to join in the collective responsibility that membership entails. (2) The role of consensus in the ATS and its continu- ing viability as membership in the ATS expanded and as new legal instruments were articulated to govern antarctic activities received some attention. (See section on Legal and Political Background and Christopher Beeby's presentation on the minerals regime in Chapter 19.) (3) The coordination, integration, or consolidation of the ATS was touched on briefly again in relation to competing uses in Antarctica and the preservation of the antarctic environment. This topic is on the agenda of the XIII consultative meeting in October, 1985. (See the proposals for a continental conservation strategy for Antarctica and for an environmental protection agency to independently monitor environmental protection policies and compliance with them in Chapters 13 and 14). So too

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430 was the relationship between adherence to the minerals regime and accepting the Antarctic Treaty in its entirety (see Chapters 19 and 20). The question of whether growth within the ATS might require some form of permanent infrastructure or secretariat was also raised. In addition, one participant suggested amending the World Heritage Convention, cited by KISS earlier in the discussion, so that it could apply to the special cir- cumstances in Antarctica created by the status of claims Additional comments were made about the paramount value of scientific research in Antarctica (see and Article IV. section on Antarctic Science), the possibility of a 30-year moratorium on minerals development activities (see Chapter 20), and the possibility of extending the antarctic zone of peace north by 10 degrees every year. (4) The possibilities of renewed conflict and mili- tarization of Antarctica, the role of effective enforce- ment, the viability of inspection under the antarctic minerals regime and within the ATS as a whole, and the relationship of enforcement and inspection to the accountability of the ATS were considered as well , . . Some fears were expressed that the minerals regime might undermine the ATS, because developers would oppose inspection of their operations in order to protect proprietary information, and this could compromise on-site inspection. Such possible deterioration of inspection might in turn undermine the demilitarization of Antarctica. One participant suggested that the fact that Antarctica was not militarized might simply be due to the fact that appropriate technology did not exist at the time of the negotiation of the treaty; new tech- nologies might produce a situation in which Antarctica would be militarized. He claimed that some governments questioned the treaty because it prevented them from developing military options there. Other speakers countered the possibility of the militarization of Antarctica by noting that both the United States and the USSR have a strong interest in avoiding that eventuality. Moreover, Antarctica was the only place where inspection works, and there is no reason to presume that it will not continue to do so. (5) With respect to the information policies of the ATS, all participants emphasized the importance of accessibility, continuity, regularity, and sufficiency of information--whether dealing with activities in Antarc- tica, the results of scientific research projects there, or proceedings in ATS forums. They took note of progress

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431 made in the area over the past 18 months and acknowledged the relationship between information policies and building confidence in the ATS and making it more accountable. This issue is to be considered again at the XIII consulta- tive meeting in October 1985. Some speakers noted, contrary to Zain's view, that there is accountability under the treaty among parties as well as accountability to third states under general principles of international law. Nor does the Antarctic Treaty depart from other general international law governing state responsibility and liability. CONCLUDING REMARKS R. Tucker Scully Scully stated that the ATS has evolved and would continue to evolve. There is no alternative and this represents a strength of the system. He believed that there is a logical inconsistency in the position, articulated by countries such as Malaysia, that argues that the system should be changed but at the same time does not define the country's interest or interests with respect to Antarctica. Nor is there any justification in calling for the renegotiation of the Antarctic Treaty based upon fears or speculation as to what might happen. In his view, the treaty system had seen an oustanding example of international cooperation--in arms control, in scientific research, in environmental protection, and in resources management. To achieve these objectives the system had demonstrated that when legitimate (and concrete) interests arose in these areas, they would be effectively accommodated. Richard Woolcott Woolcott acknowledged that the Malaysian initiative had served a useful purpose in assisting in the further opening up of the ATS and in the production of the comprehensive United Nations study on Antarctica. But he did not agree with the impression left by Malaysia that its proposal for a United Nations special committee had been widely supported among non-treaty states. Various UN member states, including some members of the Group of 77, had not favored the committee. To the two categories of nontreaty states identified by Zain, he would add the

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432 two-thirds of the United Nations member states which had shown very little interest in the subject and which did not contribute to the United Nations study and also those nontreaty states which were actively considering acceding to the treaty. Even of the 54 countries that did contribute to the United Nations study, the majority were parties to the treaty. Antarctica simply was not an issue about which the United Nations was, or needed to be, concerned. The issue had been artificially stimulated by Malaysia. He believed that countries outside the treaty system were able to influence decisions taken by the parties, and noted that a measure of accountability was generated through the pressure of public opinion and indeed through an institution like the United Nations, should some real problem arise in respect of Antarctica. He wished to revise his introductory presentation to indicate that the United Nations did not really create problems. Rather, what he had had in mind was that, in the case of Antarctica, an issue had been artificially promoted when there was, in fact, no contention in Antarctica. In this case, United Nations consideration had the capacity to exacerbate the matter and bring about a confrontation between parties to the Antarctic Treaty and some nontreaty states. In his view, this would create an unnecessary problem. Too often the United Nations General Assembly becomes an arena for confrontation rather than a forum for conciliation. He believed that certain political realities should be taken into account in considering any United Nations involvement with Antarctica, because there is a very broad base of support for the ATS. For instance, the two superpowers, the five permanent members of the UN Security Council, all the present nuclear powers, six of the seven most populous nations on Earth, and the current chairman of the nonaligned movement are members of the treaty system and oppose institutionalizing the involvement of the United Nations in Antarctica. The antarctic issue could not be presented as either an east/west issue, because of the membership of the United States and the USSR, or a north/south issue because of the membership of countries like India, China, Brazil, and Argentina. He confirmed Zain's impression that the Antarctic Treaty consultative parties believed that the less the United Nations is involved, the better. This was because the parties do not want any actions taken that could lead

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433 to undermining a successful and valuable treaty. His own consultations indicated that a number of nonaligned and nontreaty countries are in fact confused about why Malaysia has raised the issue in the first place and simply hope that it will fade from the United Nations agenda. His reasons for stating that the United Nations will not be able to manage effectively some new antarctic - regime were the followinu: _ the United Nations is not a world parliament but an assembly of sovereign states; these states are divided or disinterested in the issue; United Nations members do not easily reach agreement on any major political, economic, or social issue especially when deep divisions are involved. _ ~ , ~ In addition, the group system has resulted, on occasion, in support for various issues being horsetraded independently of the merits of the issue. The United Nations is a politicized body, tending toward preoccupation with essentially political conflicts: Arab versus Jew in the Middle East, white versus black in southern Africa, East versus West in a number of areas, and North versus South on economic questions. For instance, Pakistan has criticized the Antarctic Treaty not, in his view, because it has made a considered assessment of its value but probably because India has joined it; similarly, Ghana and some black African countries have attacked the treaty not on the basis of disagreements with its objectives but because South Africa is a member. South Africa had joined the Law of the Sea Convention without attracting African ~ opposition. Zain Azraai Zain agreed that clearly the countries outside the ATS must identify answers of their own but stated that their first efforts have been directed toward understanding the position of the parties to the treaty. He reiterated that those outside do not necessarily wish to replace the ATS. On the other hand, he saw joining the Antarctic Treaty as a "catch-22 n situation: longer challenge the system, but it was not yet clear to him to what extent the country would be able to influence determinations within the system. He did not see why the exclusive rights of the con- sultative parties with respect to decision-making should be extended to all activities in Antarctica nor why the J _ , _ once a country joins, it can no

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434 consultative parties are unwilling to be accountable in some forum to the wider international community. He questioned the assertion that by not objecting to Antarc- tic matters being dealt with in some other forum the Antarctic Treaty parties do not restrict the rights of others; he recalled earlier efforts by the consultative parties to restrict possible involvement in antarctic affairs by the United Nations Committee on Natural Resources, the United Nations Environment Program, and the United Nations Food and Agriculture Organization. Zain also wished to get a clearer definition of the special rights of the consultative parties and whether those rights derive merely from spending money in Antarctica. Nor was he yet certain that he understood why the Antarctic Treaty creates only obligations but no rights, as several speakers had indicated, because while regulations by definition create restrictions or obliga- tions, the determination or decision as to what those regulations should be is the exercise of a right. He doubted the relevance of attempting to justify the Antarctic Treaty's status by citing various limited- membership treaties, because the mandate for the establishment of these other limited-membership bodies came from the United Nations or was negotiated in the United Nations or otherwise freely negotiated by the parties concerned. He also believed that it is unhelpful to ascribe extraneous motives to the positions of member states, as had earlier been suggested in the case of Pakistan and Ghana. Members states' views should be ascertained from their own statements rather than asserted by individuals on the basis of their perception as a result of any consultation in which they may have engaged. He concluded that, as a representative from a country outside the ATS, he would follow carefully the evolving role of the nonconsultative states and was interested in the role of the United Nations specialized agencies and other international organizations vis a vis the ATS. He added that he did not like to see the latter involvement pursued only as a reluctant concession on the part of the consultative parties to the treaty. He supported the development of extensive working relationships with these bodies, by which he meant that Antarctica should be dis- cussed in the governing councils of the relevant specialized agencies; he did not mean simple attendance by an individual from a specialized agency at Antarctic Treaty meetings. These developments would help create

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435 confidence among members of the international community that Antarctica is being managed in their interest and for their benefit. His fundamental questions remained: Who should reconcile differing views on Antarctica, in what forum, and how? He noted that many speakers, including those who were supportive of the present ATS, had stated that the system could be improved. It was Malaysia's position that discussion of these issues should take place in a forum where member states would be on an equal footing, without prejudice to any position that they may take regarding the ATS.

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