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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
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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
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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
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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.
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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
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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
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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 .
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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
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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;
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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).]
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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.
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