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4e Antarctica Prior to the Antarctic Treaty A Political and Legal Perspective Cristian Maquicira . I apologize for the haste with which these general comments had to be compiled, and, therefore for the lack of time for adequate research and reflection. I have the somewhat uneasy sensation of someone who attends a performance at the opera and is plucked out of the audience to sing one of the roles. Antarctica, the "Terra Australis Incognita" of the ancient maps of the sixteenth century, has been through- out history among many other things a source of theories, fantasy, incredible heroism, commercial activity, and sometimes thinly disguised greed; of enormous scientific knowledge, conflict, and imaginative solutions. It has brought out the best in the human spirit and occasionally the worst. Political and legal perspectives on Antarctica prior to the Antarctic Treaty--the subject of my presentation-- represent an interesting combination of increasing conflict and scientific and commercial activity. This combination stems mainly from the varying decisions of governments to develop an interest in the Antarctic for political, strategic, economic, scientific, or other reasons. Their different emphases led some countries with antarctic interests to establish legitimate territorial claims of sovereignty while others did not. The first country to establish a claim was the United Kingdom, through the letters of patent of 1908. The final delimitation of the claim took place in 1917. The United Kingdom put under its control some of the best whaling grounds in the Southern Ocean. These included the Antarctic Peninsula and the islands east of it. The United Kingdom claim was followed by claims from France, Australia, New Zealand, Norway, Argentina, and Chile, which even though latecomers to the quest for . 49

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50 antarctic real estate, had been engaged in commercial and other activities in the region since the nineteenth century. As is well known, the claims of Argentina, Chile, and the United Kingdom overlap. The legal bases for all these claims are a combination of discovery, occupation, contiguity, inherited rights, geological affinity, proximity, administrative acts, and also symbolic acts. At the same time, other states actively engaged in antarctic activities refused to recognize these claims. This refusal set the stage for one type of conflict--those between claimant and nonclaimant states. The overlapping claims of Argentina, Chile, and the United Kingdom set the stage for another type. The immediate post-World War II period, and especially the cold war period between the superpowers, also had its impact on antarctic politics. Nonrecognition of claims was continually and sometimes not very politely expressed, particularly by the united States and the USSR, every time one of the claimant countries took an initiative to enhance its claim by, among other things, offering facilities for expeditions, announcing the application of conventions in its antarctic territory, or recalling the status of its territory when a decision to overfly was announced by one of the nonclaimant states. Inevitably, these notes by the claimant states were simply not acknowledged by the nonclaimants. Or they were responded to by the nonclaimant state in the fol- lowing terms: that the claim was not recognized and that the state in question reserved all its rights in Antarc- tica and also reserved the right to make a claim of its own. This is particularly true with regard to the position of the United States, which throughout the . . . . . . period prior to the Antarctic Treaty oscillated between _ ~ ~ _ ~ ~ _ ~ _ nonrecognition or claims and, on at least two occasions, possible assertion of a claim. At the same time, the United States was the country most active in Antarctica and had a basis for a claim as strong as that of any country. In fact, in 1939 the United States reconsidered its longstanding position of nonrecognition of claims, and the U.S. Department of State handed President Roosevelt a study recommending that the United States seriously consider making a claim that would cover not only Marie Byrd Land but also part or all of the Antarctic Peninsula. This study and its conclusions had a par- ticularly strong impact on the governments of Chile and Argentina and provided an incentive for them formally to

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51 define their antarctic territories, which was done the following year. The formalization of Argentine and Chilean sovereignty in Antarctica gave new impetus to what were increasing complications in the area. Claim overlaps among Chile, Argentina, and the United Kingdom were formally estab- lished. In addition, it must be borne in mind that World War II had begun and the Axis powers had begun to use Antarctica in their war operations. Such was the case when the Axis captured three Norwegian whaling factory ships and eleven catcher ships off Queen Maud Land. The United Kingdom, with one eye on the Axis powers and another on Argentina, in order to stop the Axis from seizing control of the south side of the Drake Passage, intensified its naval activity in the Antarctic. So did Argentina. At the same time, a not very friendly exchange of notes and some waving of flags occurred between Chile Argentina, because their claims also overlap. Unable to solve this territorial dispute, both countries agreed in 1941 that a South American Antarctic existed and that they had exclusive rights over it. In 1946, following the war, the United Kingdom issued the gingham Declaration, by which the United Kingdom indicated that it planned to continue its activities with no regard to the Chilean-Argentine claims. At that time it sent warships, led by the H.M.S. Nigeria, to the area. In 1947, there was an incident between the United Kingdom and Argentina in Deception Island, where Argentina had decided to build a base. Argentine troop ships arrived and left before the Royal Navy made its entrance. The base still stands. Also in 1947, the President of Chile visited Antarc- tica and reaffirmed Chilean titles in the area. Later, in 1948, Chile and Argentina, through the Vergara-La Roza Declaration, recognized the external limits of their claims and agreed to act jointly with regard to antarctic affairs. This agreement, and increasing naval activity by the United Kingdom, fired the intention of both countries to apply the Rio Treaty of 1947 in Antarctica with regard to British activities there. The fact that the Rio Treaty carried a U.S. reserva- tion designed especially to avoid taking sides in Antarctica did not diminish the positions of Chile and Argentina with regard to the South American Antarctic, which had been established by the Vergara-La Roza and Declaration.

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52 Parallel to these developments, the United States in 1947 once again considered establishing a claim in Antarctica. This was the objective of Operation Highjump, the single largest expedition ever dispatched to Antarctica commanded by Admiral Byrd. In 1948, besides the Vergara-La Roza Declaration, the United Kingdom, Argentina, and Chile signed a tripartite naval agreement, by which they decided that there was no need to send naval ships south of 60S latitude. This agreement was renewed annually until 1956. A major consideration behind this agreement was the need to solve the problems between Argentina, the United Kingdom, and Chile in the face of common problems vis-a-vis the nonclaimants. Also in 1948, the United States decided to try to put an end to these and other problems by propos- ing the international administration of Antarctica by the seven claimant nations, with the United States declaring its sovereignty over the unclaimed sector. The U.S. arrangement would have produced an eight-power trustee- ship under the United Nations. The objective of this proposal was not only to solve conflicts between claimants and nonclaimants and among the claimants themselves but also, and here the cold war creeps into Antarctica, to prevent a possible Soviet claim. It must be recalled that this initiative was put forward at about the same time that the Berlin blockade was put into effect. The U.S. trusteeship scheme could not work because there were no inhabitants in what would be the territory held in trust. Moreover, if Antarctica had been placed under the United Nations, the scheme would have made Soviet Union intervention in Antarctica possible. In 1948, the Soviets had not intervened in Antarctica for almost 130 years, except to carry out whaling activities. These reasons led the United States to modify its proposal and move toward a condominium, which is another way of internationalizing the Antarctic. This idea was rejected by Argentina and Chile. The united Kingdom favored it in order to put an end to its disputes with Chile and Argentina, while the other claimants gave the plan a lukewarm reception. The Chilean response included what is now known as the Escudero Declaration, by which Chile totally rejected the condominium scheme but at the same time suggested a modus vivendi that would welcome scientific cooperation and include a five-year moratorium on territorial claims. Portions of the declaration state that means should be found to alleviate the dangers of conflict and inter-

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53 national incidents in Antarctica without prejudice to the individual rights of interested nations in Antarctica. The significance of the Escudero Declaration, which had no immediate consequence, is that it contained the elements of the final solution to the claims issue found in Article IV of the Antarctic Treaty. In the early 1950s, mainly because of the rejection of its proposals to internationalize Antarctica, the United States reconsidered establishing a claim as a means to ensure control of Antarctica by the United States and friendly nations. This concept excluded the USSR at a time of mounting cold war tensions. India became worried by the conflict-prone situation in Antarctica in 1956 and tried to include the item on the United Nations General Assembly (UNGA) agenda for that year. Chile and Argentina, on the basis of their claims, persuaded India not to press the issue. At the beginning of the International Geophysical Year (IGY) in 1957, heightened problems existed between claimants and nonclaimants, among claimants and between the superpowers of the cold war. Yet the exclusively scientific nature of the IGY and the opening of partici- pation in the Process to all interested states were the first steps toward intense international cooperation in Antarctica as it was later embodied in the l9S9 Antarctic Treaty. The IGY revealed the possibilities for countries with conflicting interests in the region and elsewhere to work together for a common wood. ~ In 1958, India renewed its efforts to include Antarc- tica as an item on the UNGA agenda, this time based on the possibility of the exploitation of resources in the area. Its initiative was withdrawn because of the advanced state of preparation for the Washington Con- ference on Antarctica that produced the Antarctic Treaty In conclusion, the period of antarctic activity prior to the Antarctic Treaty was characterized, on the one hand, by enormous scientific development and activity and, on the other hand, by serious and sustained con- flicts, which could be summed up in the following way: . Claimant states will not renounce their claims; Nonclaimant states will not recognize these claims; and There was conflict between the superpowers. Finally, I wish to reiterate that I have only tried to indicate in a disorganized way some of the highlights of some of the problems that antarctic countries faced

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54 throughout the century before the approval of the Antarctic Treaty. It is only a sketch and not a complet painting of the antarctic situation. BIBLIOGRAPHY e Auburn, E. F. 1982. Antarctic Law and Politics, C. Hurst and Co. (London); Croom-Helm (Cansina), 316 pp. Pinochet de la Barra, O. 1955. La Antarctica Chilean, Editorial del Pacifico, S. A. (Santiago), p. 62. Quigg, P. W. 1983. A Pole Apart: The Emerging Issue of Antarctica, New Press, A Twentieth Century Fund Report, McGraw-Hill Book Company (New York), p. 299.