Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter.
Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.
Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.
OCR for page 65
6.
The Antarctic Treaty as a
Conflict Resolution Mechanism
Arthur D. Watts
Any treaty may, in the course of its operation, give rise
to conflicting views about its application or interpreta-
tion. The Antarctic Treaty1 is no exception, and it
makes provision for the resolution of such disputes.2
My present focus of attention, however, is not on disputes
arising during the course of the Antarctic Treaty's
operation, but rather on the underlying and fundamental
conflicts of rights and interests that existed before the
Antarctic Treaty came into existence--namely, the differ-
ences of view regarding territorial sovereignty in
Antarctica. The conclusion of the treaty largely
neutralized those differences, and it is the wav in which
i ~ h == Abbe _~ ~ ~ ~
&~= "VII= =~ Utah men 1LS some Further consideration.
Before getting into the detail of the subject,
however, it may be helpful to see these conflicts in a
broader. nOn-ant-Ar~ i ~ Are ; a-
~ =~ ~r=~v=. Differences over
territorial sovereignty underlie many situations of
friction and conflict in today's world. Where these
differences relate to places of obvious significance,
such as those with sizable populations or well-developed
economic activity, it is no surprise that they should
give rise to serious tensions and even to armed conflict.
What is important to realize is that this can also
happen in relation to less obviously significant areas
and even to those that are inhospitable. ThuS--to give
just three examples--in the 1960s two states found
themselves engaged in armed hostilities over an area
subsequently described by an arbitral tribunal as a
"unique geographical phenomenon," bearing "similar iEv hm
a d—~~ i n ohm Alar Mar
~ -em ~~ ~ =~=V11 Alla e e e to a lake in the wet
season"; the tribunal noted that terms most frequently
used to sum up the area were "swamp, marsh, morass, salt
marsh, salt water waste, mud and sand, marsh of
65
OCR for page 66
66
alluvium."3 Not surprisingly, in much of the area,
inhabitants were few. In another instance, this time in
the 1970s, fighting broke out over control of an area
forming part of one of the world's great deserts,
characterized by sparsity of resources and only spasmodic
rainfall, which allowed for only a nomadic population
that even then had perpetually to travel across wide
areas of the desert in order to survive.4 Twenty years
earlier, in the 1950s, it was a very different kind of
deserted area, harsh with cold rather than heat, and this
time in the Southern Hemisphere, where different views as
to sovereignty led to gun fire by one side to secure the
withdrawal of a party from the other.5 Barrenness,
isolation, and the absence of any permanently settled
population are no guarantee against serious conflict when
the issue concerns territorial sovereignty.
So let us now return to that barren, isolated, and
unpopulated location that is Antarctica. The Rann of
Kutch (the first example given) is far away, and the
conflict there raised issues very different from those
relevant to Antarctica. (This was also true with the
western Sahara Desert, the second example). However, the
third example is of more direct concern: that incident
occurred at Hope Bay, which lies within the area to which
the Antarctic Treaty now applies.
That incident involved just two states, with differing
views as to sovereignty over the place in question. The
situation with respect to Antarctica as a whole, however,
is not so straightforward: it is not one in which all
the interested states exercise territorial sovereignty
but find themselves from time to time engaged in contro-
versy over what may be regarded as, in effect, border
disputes. That sort of situation would be relatively
simple. But Antarctica is much more complex, with states
adopting fundamentally irreconcilable positions. There
was what has been described as "a massive dispute about
sovereignty in Antarctica. n6 Of the twelve states that
eventually sat down to negotiate the Antarctic Treaty,
seven7 had for many years asserted sovereignty over
areas~of Antarctica, although the areas over which
threes of them did so largely overlapped one another;
two other states,9 while not having made claims to
territorial sovereignty, considered themselves as having
a basis for doing so, while at the same time not acknow-
ledging the claims made by the seven states previously
mentioned; and finally, the remaining three states
neither claimed sovereignty nor recognized such claims or
OCR for page 67
67
bases of claims put forward by others. A final factor to
be noted is that a part of Antarctica--the sector between
90°W and 150°W--was unclaimed by any state.
Yet, despite that uniquely complex background, only
some half dozen years after the incident at Hope Bay took
place, the two states involved, together with the other
ten, were able to arrive at a most remarkable agreement.
They agreed to the demilitarization and denuclearization
of the whole continent. They agreed that their scientists
could freely conduct scientific investigations throughout
Antarctica, irrespective of assertions of territorial
sovereignty by some of those states; furthermore, their
agreement did not exclude the use of military personnel
or equipment for scientific research, or indeed for any
other peaceful purpose; they also agreed that any of them
could appoint nationals to carry out inspections in all
areas of Antarctica, including inspections of all
stations, installations, and equipment there. In terms
of traditional attitudes to the exercise of territorial
sovereignty, this acceptance by the states concerned of
access by other states' scientific and military per-
sonnel, and of rights of inspection by nationals of other
states, was exceptional. They were just the kinds of
activities that in normal circumstances would have all
the makings of serious tension and possible conflict.
That this kind of agreement was possible was due to
one of the central articles of the Antarctic Treaty,
Article IV.ll Without that article, the Antarctic
Treaty would not have been possible. To their credit,
the negotiating states got their priorities right: they
were determined to secure the benefits of demilitariza-
tion, denuclearization, and scientific cooperation for
which the treaty was to provide, and in Article IV they
established a legal framework within which their respec-
tive positions regarding sovereignty could be adequately
protected. It is worth looking a little more closely at
that article, to see more clearly what it says and also
what it does not say.
The article is in two parts, the first paragraph
dealing with the possible implications that might flow
from the Antarctic Treaty itself, while the second
paragraph looks ahead to the implications that might flow
from future conduct under the treaty.
By virtue of the first paragraph, nothing contained in
the Antarctic Treaty is to be interpreted as a renuncia-
tion by any contracting party of previously asserted
rights of or claims to territorial sovereignty in
OCR for page 68
68
Antarctica. This is essentially a reference to historical
facts: the rights or claims that are protected by this
provision are those that have been "previously asserted,"
and such rights are in no way renounced by the treaty.
This is a critical provision, since the existence of
states asserting territorial sovereignty over parts of
Antarctica is a fact that must be taken into account in
any workable antarctic regime.
The paragraph also provides that nothing in the treaty
is to be interpreted as a renunciation or diminution by
any contracting party of any basis of claim to territorial
sovereignty in Antarctica that it may have, whether as a
result of its activities or those of its nationals in
Antarctica or otherwise. This provision primarily pro-
tects the positions of the United States and the USSR,
both of which maintain that they have a basis for a claim
to sovereignty. The treaty leaves their basis of claim
as it was.
Finally, the first paragraph of Article IV establishes
that nothing in the treaty is to be interpreted as
prejudicing the position of any contracting party as
regards its recognition or nonrecognition of any other
state's right of, or claim or basis of claim, to ter-
ritorial sovereignty in Antarctica. While by virtue of
Article IV itself, all contracting parties have acknow-
ledged the fact that there are claims to territorial
sovereignty in Antarctica, and that some parties may not
accept those claims, as regards the substance of those
claims, the position of each contracting party is pro-
tected: those that recognize rights or claims are not
prevented by the treaty from continuing to do so; those
that do not recognize rights or claims do not have that
nonrecognition prejudiced by the treaty. This too is a
critical provision, since, just as any workable antarctic
regime must take into account the fact that certain
states assert territorial sovereignty in Antarctica, so
too it must take into account the fact that certain other
states do not recognize those assertions.
While the first paragraph of Article IV looks to the
consequences that might flow from the Antarctic Treaty
itself, the second is concerned with the consequences of
future conduct. It provides that no acts or activities
taking place while the Antarctic 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.
OCR for page 69
69
Two features of this provision should be noted. First,
it is not in terms limited to acts or activities taking
~ _ the acts or
activities in question are all-embracing. The only
express requirement is that they should take place while
the Antarctic Treaty is in force.
Place our suant to the Antarctic Treaty:
Second, the all-embracing character of the provision
would appear to extend also to the place where acts or
activities take place. The provision does not say "no
acts or activities in Antarctica."12
Paragraph 2 of Article IV also has a further, most
important sentence. It provides that no new claim, or
enlargement of an existing claim, to territorial sov-
ereignty in Antarctica shall be asserted while the
Antarctic Treaty is in force. The broad effect of this
provision is apparent. In particular, it does of course
prevent those states that maintain that they have a basis
of claim from transforming their basis of claim into an
actual claim. It also prevents any party to the treaty
from making a claim in respect of the hitherto unclaimed
sector.
Some interesting questions are, however, left
unresolved by this provision. How, for example, does it
apply to continental shelf rights or to exclusive eco-
nomic zones, or to contiguous zones for other purposes?
It would seem that for states asserting sovereignty in
the area, these are not precluded,13 since the text
Prohibits only new or enlarged claims to "territorial
sovereignty in Antarctica, and suan rlgnts ana zones can
be plausibly seen as neither involving territorial
sovereignty as such (as distinct from sovereign rights or
rights of jurisdiction for certain limited purposes) or
any "enlargement" of a claim to sovereignty nor as being
strictly a_ Antarctica"--a term most readily seen as
referring to the continent itself rather than to its
surrounding maritime areas. Extensions of the breadth of
the territorial sea could, however, involve different
considerations: this clearly involves sovereignty itself
(although there may still be a question over the word
"territorial") and, by virtue of its inherent link with
adjacent coastal sovereignty, is perhaps to be regarded
as "in Antarctica."
Despite a few areas of uncertainty in the scope and
interpretation of Article IV of the Antarctic Treaty, it
is still a remarkably comprehensive provision, covering a
uniquely complicated situation. What is more, it works
in practice. Compared with the tensions that existed in
OCR for page 70
70
the area in the years after World War II, how very
different--to take but one of the many recent examples--
has been the response of the United Kingdom to the main-
tenance by Chile since 1969 of a station on King George
Island, which the United Kingdom regards as subject to
its sovereignty but which Chile considers to be under
Chilean sovereignty. In other circumstances this could
have been the occasion for a serious conflict, but in
practice it has been very different: on March 5, 1984,
in answer to a Parliamentary question, a United Kingdom
Foreign Office minister was able simply to say ''Chilean
activities on this island do not prejudice British
sovereignty, by virtue of paragraph 2 of Article IV of
the [Antarctic] Treaty.814 Doubtless, for their part,
the Chilean government would see the situation in similar
terms.
It does not overstate the case to say that Article IV
is the cornerstone of the Antarctic Treaty and thus of
the whole system that has grown up around it.l5 The
effectiveness of that article has, for something like a
quarter of a century, kept Antarctica free of the con-
flicts to which its complex territorial situation would
have been most likely to lead and generally has removed
it from the usual range of international political
tensions.
Yet, however satisfactory the results of Article IV
have so far been, there are certain limits to its
operation and effectiveness. These limits are sometimes
obscured by the very success that Article IV has so far
had and by the tendency to get around its complex
drafting by summarizing its broad effect by some such
phrase as that it Suspends sovereignty claims" in
Antarctica or that it has "put sovereignty in abeyance."
What is important always to bear in mind is that the
various national claims to and rights of sovereignty in
Antarctica are still very much alive--as equally is the
opposition to them of those states that do not recognize
them. The underlying differences of view remain. In
that sense, Article IV has not "solved" the problem.
What it has done is to provide a basis on which conflicts
arising out of those continuing differences can be
avoided.
But this has been achieved only to the extent that
Article IV applies. Take Article IV away, and sover-
eignty rights and claims, and opposition to them, will
immediately re-emerge, undiminished in vigor. In an
extreme case, involving in some way the Antarctic Treaty
OCR for page 71
71
or at least Article IV ceasing to be in force, the
consequential possibility of a resurgence of conflicts
over sovereignty is readily apparent.
Short of that extreme situation, even today the
possibilities of conflict once we go beyond the scope of
Article IV are real. Being a treaty provision, that
article is binding only on states that are parties to the
Antarctic Treaty. Nonparties that might wish to be
active in Antarctica would not, therefore, be bound by,
or have any right to benefit from, Article IV. Since
Article IV would not deprive nonparties' activities of
possible prejudice to the position of the states assert-
ing sovereignty in Antarctica, the latter states might be
expected to react in the usual way to actions that they
might see as inimical to their sovereignty.
So Article IV has clearly not buried the sovereignty
issue for all purposes. What is less often appreciated
is that Article IV does not prevent contracting parties
themselves from asserting their sovereignty rights.l6
They in fact do so from time to time, as when they exer-
cise their legislative, curial, or administrative juris-
diction in respect of their antarctic territories. No
breach of Article IV results from such actions. This,
however, brings us closer to the political heart of the
matter. While there would be no breach of a legal
obligation if one of the territorial states were to
assert its sovereignty against another contracting party,
this is not to say that there would be no consequences
for it were it to do so in circumstances of any signifi-
cance: in particular, the other party concerned (at
least if not itself a territorial state) might be expected
to assert its objections to the territorial state's sover-
eignty. In that event, conflict could rapidly develop.
If, accordingly, even within the framework of Article
IV, conflicts over sovereignty are still possible, what
has become of that article's effectiveness as a means of
resolving conflicts over territorial sovereignty? Once
again, the success in practice of Article IV must not be
allowed to obscure its essential limitations: while, in
what would otherwise be a potentially serious situation,
it takes away the need for the kinds of responses in
protection of a state's interests that lead to conflict,
the possibility of conflict remains.
What has so far prevented conflicts from arising has
been the appreciation by the contracting parties that it
is not in their interests to push their various points of
view to their logical conclusions. If any contracting
.
OCR for page 72
72
party were to do so, it would have to accept the conse-
quences, which would involve other contracting parties'
similarly taking their opposing points of view to their
logical conclusions. These judgments by the contracting
parties are essentially political. ~ -
. . . . . .
Article IV provides a
legal framework within which it is at least possible for
the contracting parties to have the opportunity of not
needing to press their views to their limits. But Article
IV itself does not legally avoid the possibility of
conflict. The contracting parties have so far avoided
that possibility because of politically motivated
self-restraint.
In that, they have doubtless had occasion to reflect
on certain broad trends in Antarctica in this and the
preceding century. As activity grew in the nineteenth
century, the situation tended to develop into one of an
increasing free-for-all, with all its consequent scope
for conflict. Around the turn of the twentieth century
this potentially dangerous situation was brought under
control by the development by certain states of their
respective national jurisdictions, based on their terri-
torial claims, as an effective means of regulating
activity in Antarctica. This, however, in turn tended to
lead to a degree of international dispute and discord.
With the conclusion of the Antarctic Treaty, all could
breathe more freely again--within the framework of
Article IV of the Antarctic Treaty and on the basis of
their mutually valuable self-restraint.
In many respects this self-restraint has been made
relatively easy in the last quarter of a century because
the range of activities in Antarctica has been limited,
and occasions when states will have consciously had to
consider whether a policy of self-restraint was justified
will have been few. The serious question that arises as
activity in Antarctica seems likely to increase is whether
that policy of self-restraint will still be seen by each
contracting nartv as the right policy to adopt. Whether
this occurs will depend on many factors, some internal to
the Antarctic Treaty, some external. Article IV itself
will not determine the outcome. Its strength has lain
not in solving the underlying differences, nor in pre-
cluding their resurrection, but rather in offering an
unparalleled opportunity for states, despite fundamental
differences as regards so politically sensitive a matter
as territorial sovereignty, to cooperate and to coexist
in Antarctica. For a quarter of a century the states
directly concerned in Antarctica have made full use of
OCR for page 73
73
that opportunity and have preserved Antarctica as a
continent used exclusively for peaceful purposes and free
from conflict. Article IV offers them the opportunity--
perhaps the only opportunity--to continue on that course.
NOTES
1. For text, see 402 United Nations Treaty Series 71;
United Kingdom Treaty Series No. 97 (1961); 12 U.S.
Treaties 794. The treaty was signed at Washington
on December 1, 1959, and entered into force on June
23, 1961.
2. Article XI.
3. Seventeen United Nations Reports of International
Arbitral Awards 1, at pp. 24, 527.
4. I.C.J. Rep., 1985, 41-2.
5. See United Nations Secretary-General's Study on the
Question of Antarctica, U.N. Document Number
A/39/583 (1984) paragraph 42 (although that
paragraph incorrectly puts the place in
question--Hope Bay--in the South Orkney Islands: it
is on the Antarctic Peninsula). See paragraphs
25-27 generally for a summary of various other
incidents occasioning tension or conflict in the
Antarctic between 1945 and the conclusion of the
Antarctic Treaty in 1959.
6. See Chapter 19 in this volume by C. D. Beeby "The
Antarctic Treaty System as a Resource Management
Mechanism--Nonliving Resources.
Argentina, Australia, Chile, France, New Zealand,
Norway, and the United Kingdom.
Argentina, Chile, and the United Kingdom.
The USSR and the United States.
Belgium, Japan, and South Africa.
Article IV is as follows:
8.
9.
10.
11.
1. Nothing contained in the present Treaty shall be
interpreted as:
(a)
(b)
a renunciation by any Contracting Party of
previously asserted rights of or claims to
territorial sovereignty in Antarctica;
a renunciation or diminution by any
Contracting Party of any basis of claim to
territorial sovereignty in Antarctica which it
may have whether as a result of its activities
or those of its nationals in Antarctica, or
otherwise;
OCR for page 74
74
prejudicing the position of any Contracting
Party as regards its recognition or
nonrecognition of any other State's right of
or claim or basis of claim to territorial
sovereignty in Antarctica.
2. No acts or activities taking place while the
present Treaty is in force shall constitute a basis
for asserting, supporting or denying a claim to
territorial sovereignty in Antarctica or create any
rights of sovereignty in Antarctica. No new claim,
or enlargement of an existing claim, to territorial
sovereignty in Antarctica shall be asserted while
the present treaty is in force.
As to the "gentlemen's agreement" that operated
during the International Geophysical Year
(1957-1958) and that was a forerunner of Article IV
of the Antarctic Treaty, see F. M. Auburn, Antarctic
Law and Politics, C. Hurst and Co. (London),
Croom-Helm (Canberra), 1982, pp. 89-93.
12. There may, however, be some uncertainty in this
respect. It could be argued that in the context of
the Antarctic Treaty as a whole, the acts or
activities in question are implicitly limited to
those taking place in Antarctica. Furthermore, the
provisions of Article VI of the treaty (which
provides that the treaty applies to the area south
of 60°S latitude) might suggest that the geo-
graphical scope of paragraph 2 of Article IV is
similarly limited. A consequence of this
uncertainty has been that, whereas the existence of
Article IV has effectively put a stop to the
exchanges of diplomatic protest notes in respect of
things being done by contracting parties in
Antarctica, it has not completely put a stop to the
sort of "paper war" that takes place, for example,
within the framework of international organizations
in which statements and counterstatements are made
outside the Antarctic Treaty area [see, e.g., with
respect to an exchange in relation to the universal
Postal Union in 1979, British Year Book Int. Law,
53:425-426 (1982); and in relation to the
International Telecommunications Union in 1981,
British Year Book Int. Law, 53:458-459 (1982).]
OCR for page 75
75
13. See, e.g., the proclamation establishing an
Australian 200-mile fishing zone: Bush, Antarctica
and International Law, Oceana Publications, Inc.
(Dobbs Ferry, N.Y.) 1982, Vol. 2, pp. 202-204,
208-209; as to France, see pp. 586-588.
14. Parliamentary Debates (Commons), March 5, 1984,
written answers, colt 413. See also ibid., December
13, 1984, colt 599, regarding the use by Chile of
the former British station on Adelaide Island.
15. The two separate antarctic conventions concluded
since 1959 concern the Convention for the
Conservation of Antarctic Seals 1972 [United Kingdom
Treaty Series No. 11 (1973)] and the Convention on
the Conservation of Antarctic Marine Living
Resources 1980 [United Kingdom Treaty Series No. 48
(1982)]. Both include provisions to secure the
application in those contexts of Article IV of the
Antarctic Treaty: see, respectively, Articles I and
IV of those conventions. As to the current
negotiations for an antarctic minerals regime, see
paragraph 5 of Recommendation XI-I adopted at the
Antarctic Treaty consultative meeting in BuenoS
Aires in 1981, requiring that the minerals regime
safeguard the principles of Article IV of the
Antarctic Treaty: see also Chapter 19 in this
volume by C. D. Beeby.
It may also be noted that Article IV of the
Antarctic Treaty served as an obvious model for a
provision in the United Kingdom/Argentina exchange
of notes of August 5, 1971 [United Kingdom Treaty
Series No. 64 (1972)], which provided a "sovereignty
umbrella n for bilateral talks between those two
states about the Falkland Islands, whereby neither
state's legal position concerning sovereignty over
the Falkland Islands was prejudiced by the talks.
16. Other articles of the Antarctic Treaty may, however,
do so. Thus, Article V prevents a state from
exercising in respect of its antarctic territory
what would otherwise be its right to use it for the
disposal of nuclear waste; Article VIII imposes
restrictions on the territorial state's rights of
jurisdiction over observers and exchanged scientific
personnel.
OCR for page 76
Representative terms from entire chapter:
territorial sovereignty
