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7. Panel Discussion on the Legal and Political Background of the Antarctic Treaty The panel consisted of Frangois Renouard (moderator), Rudiger Wolfrum, and Felipe Macedo de Soares Guimaraes. SU=ARY The papers that form the chapters of this section provided historical background on the conflicts affecting Antarctica before the 1959 Antarctic Treaty and on the continuing potential for dispute and conflict in the area. They discussed the origins of the treaty's modus vivendi, which, by neutralizing contracting parties' differing positions on the territorial status of Antarc- tica, preserved the demilitarization and denuclearization of Antarctica and international cooperation in scientific research there. Arthur Watts' paper focused on Article IV as the cornerstone of the Antarctic Treaty, and many partici- pants agreed that the treaty's objectives would not have been achieved absent the spirit of compromise and coopera- tion exhibited by the contracting parties in dealing with their respective positions on territorial sovereignty. Watts' final question led to a discussion of the future evolution of the Antarctic Treaty System (ATS) in relation to new requirements and the interests and needs of the international community as a whole: In the face of increasing activity in Antarctica, will the states directly concerned in Antarctica continue to find it the right policy to exercise self-restraint and avail them- selves of the opportunity presented by Article IV to cooperate in Antarctica? This question was explored both in the context of the existing ATS and in relation to a more radical restructuring of the system of governance for Antarctica. In the context of the existing ATS, panel participants explored the implications of Article IV with respect to claims to offshore zones of sovereignty and jurisdiction. 77

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78 (See below.) They also discussed the fact that Article IV does not resolve the territorial status of Antarctica and that the claims are still alive, as is the continuing possibility of conflict over territorial sovereignty. At the same time, there was some debate over the fundamental legitimacy of the ATS and the possibility of revising or modifying the Antarctic Treaty after 1991. (m e Antarctic Treaty provides in Article XII that at any time after the treaty has been in force for 30 years, a consultative party to the treaty may request a conference of all contracting parties to review the operation of the treaty and possibly to amend it. The Antarctic Treaty entered into force on June 23, 1961.) Several partici- pants suggested that Antarctica be "internationalized" in the sense of developing a new agreement to be negotiated by all states or through the U.N. They argued that Antarctica should be internationalized in order to preserve the benefits achieved by the Antarctic Treaty to date and to extend them to the wider international community, taking for granted that internationalization would be compatible with preserving the benefits of the present system. The opposing view held that Antarctica is already internationalized in the sense that the ATS is an open one. Those holding this view argued that it would be impossible to renegotiate the disarmament and other provisions of the Antarctic Treaty in today's world. An attempt to do so could disrupt the compromise enshrined in Article IV, because it would not take account of claimant states' positions; this in turn could make it impossible to carry out the purposes of the Antarctic Treaty in securing peace and stability in the area and international cooperation in scientific research. Many participants believed that the Antarctic Treaty had worked well so far; some indicated that they would be willing to consider realistic proposals for improvement and encouraged their presentation. REMARKS BY RUDIGER WOLFRUM Wolfrum addressed the legitimacy of the ATS by stating his view that the international community has acquiesced to the Antarctic Treaty because for 25 years it has accepted the treaty as a valid vehicle for the preserva- tion of peace in the area. He believed that acquiescence has taken place even though countries not party to the

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79 treaty might have accepted the treaty as one applicable only to states' parties. Others challenged Wolfrum's contention that the Antarctic Treaty had been accepted in the past and noted that since the claims were disputed even among parties to the treaty, it would be presumptuous to say that non- participants in the treaty had acquiesced to them. Wolfrum also took the view that the claimant states have always had continental shelf rights because these are inherent in the continental claim of a coastal state. But he distinguished a shelf claim from an exclusive economic zone (eez) claim, stating that an eez claim must be declared if a state is to exercise the rights related to it; it is not inherent in the con- tinental claim. Nevertheless, he argued that an eez declaration would not enlarge a claim to territorial sovereignty because an eez claim represents no more than a series of jurisdictions. Another speaker questioned these conclusions, arguing that because continental shelf and eez rights flow from territorial sovereignty on land, they do involve sov- ereignty and could be construed as an enlargement of a claim to sovereignty under the Article IV(2) stipulation that "no new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present treaty is in force." This provoked a wider exchange of views, with some participants clearly regarding any such claims as a violation of Article IV, while others were of the opinion that Article IV does not preclude states with long- standing claims to Antarctica from now asserting their interests in the nature of eez or continental shelf rights. One participant agreed with the principle that all offshore jurisdictions derive from the continental claim but added that states not recognizing land jurisdiction obviously do not recognize maritime jurisdictions either. He also noted that some countries had claimed offshore jurisdictions before the conclusion of the Antarctic Treaty. (Chile claimed offshore a zone in 1947 and Argentina 1946 decreed its claim extending from the South Pole to 60S latitude.) Several speakers acknowledged Watts' point that the extension of a territorial sea claim, since it is in fact an extension of territorial sovereignty, could be seen as an enlargement of an existing claim within the terms of Article IV quoted above. (The 1982 U.N. Convention on

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. 80 the Law of the Sea permits coastal states to claim territorial seas up to 12 nautical miles in breadth. Before agreement on this convention, there was no universally recognized breadth for the territorial sea.) On a final point, Wolfrum addressed the effect of Article IV on states not party to the Antarctic Treaty. He noted that claims in Antarctica and Article IV operate on two levels: on one level between claimant and nonclaimant states that are party to the Antarctic Treaty and on another level between claimant states and states that are not party to the Atlantic Treaty. He reiterated his view that nonparties to the treaty have in effect acquiesced to the treaty regime. This point was further developed by another partici- pant, who noted that Article IV(2) prohibits "acts or activities taking place while the present treaty is in force... [from] constitut[ing] a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or creating] any rights of sovereignty in Antarctica" with respect to states parties to the treaty. For those not party to the treaty, activities that take place while the Antarctic Treaty is in force can be regarded by the claimant state carrying them out as enforcing its claim vis-a-vis countries that do not object. REMARKS BY FELIPE MACEDO DE SCARES GUIMARAES Soares stressed the value of Article IV in the context of the internationalization of Antarctica, since Article IV in his view not only internationalizes Antarctica but effectively puts to one side the alternative: the nationalization of Antarctica. He pointed out that this Article preserves the opportunity for all countries, including Brazil, to express an interest in the whole of Antarctica, not just a slice of it. He believed that, because Antarctica is already internationalized, those proposing this option are in effect proposing a kind of ultranationalization of it. He also noted the special characteristic of the Antarctic Treaty that identifies a category of states, the United States and the USSR, which have a "basis for claim" in Antarctica as a result of historic involvement in the area. Contrary to usual practice, whereby a state either has a claim or does not, this provision maintains U. S./USSR interest in all Antarctica. He stated that

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81 likewise Brazil, even without a basis for claim enshrined in the treaty, has an interest in conducting scientific research and other activities in all of Antarctica. One participant doubted that the United States and the USSR, which today refuse to accept the justifications for claims expounded by the claimant states, could in fact argue at some future date that some of these same jus- tifications could underpin their own claims. He noted that the possibility of this happening presumes the abrogation of the Antarctic Treaty as now construed. Another speaker responded that if the Antarctic Treaty no longer applied, circumstances would revert to the status quo ante, and both claimant states and those with strong arguments for a basis for claim would be free to pursue these positions. Finally, Soares expressed concerns about the relation- ship of the continental shelf in the Antarctic Treaty area to the deep seabed beyond the shelf and about the possibility of conflict between the authority of the ATS and that of the International Seabed Authority (ISA) provided for in the 1982 Law of the Sea (LOS) Convention. (According to the LOS Convention, mineral activities in the seabed and ocean floor beyond the limits of national jurisdiction are governed by the ISA in accordance with the convention.) DISCUSSION In discussing the evolution of the ATS, participants focused on the role of consensus in decision making under the Antarctic Treaty and the position of the nonconsul- tative parties to the treaty. The minerals regime negotiations were also considered. Consensus That consensus might become more difficult to obtain as more countries acquired decision-making rights under the Antarctic Treaty was acknowledged, but in general participants supported consensus as a workable procedure in multilateral and international forums. One participant noted that it is better than alternative voting systems because it does not create a disgruntled minority that feels discriminated against.

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82 Nonconsultative Parties to the Antarctic Treaty Three points were raised about the role of NCPs under the Antarctic Treaty as follows. First, the decision that an NCP has met the require- ments of Article IX(2) of the treaty and is entitled to appoint representatives to participate with full decision- making rights in meetings of the consultative parties is taken by consensus. [Article IX(2) permits CP status for states other than original signatories to the treaty "during such time as that contracting party demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the establish- ment of a scientific station or the despatch of a scientific expedition."] Second, any state that is a member of the U.N. may accede to the Antarctic Treaty, and no decision by the states party to the treaty is called for. Nevertheless, there is an anachronism in the 1959 Antarctic Treaty, which applies special circumstances to states that are not members of the U.N. These states may accede only if invited with the consent of all the CPs. Today this circumstance applies to countries such as the Democratic Peoples Republic of Korea and the Republic of Korea, and Switzerland; it applied to the German Democratic Republic and the Federal Republic of Germany before they became U.N. members in 1973. Third, if several countries joined forces to undertake substantial scientific research in Antarctica and then individually sought CP status, the determination that each state had individually met the criterion in Article IX(2) for CP status would have to be made by each of the CPs. Whether these states might jointly~exercise CP decision-making rights was not specifically addressed, although the mechanics of doing so in a consensus decision-making process might prove difficult. (The possibility of jointly conducted activities in Antarctica is considered further in Chapters 12, 14, 21, and 25.) Minerals Regime Negotiations The bearing of the differing positions on antarctic claims on the minerals regime negotiations was discussed. One participant noted that whether the provisions of Article IV(2) apply to continental shelf rights or to eezs has implications for the minerals regime negotia-

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83 Lions. Another added that because there is nothing in the treaty relating to minerals, it cannot be assumed that countries not party to the treaty have acquiesced to the jurisdiction of a small group of states over this issue. (This subject is considered in more depth in Chapters 20 and 27.) The possibility that the unresolved status of ter- ritorial claims could produce conflicts in the future between claimant and nonclaimant states was also raised in this context because the minerals negotiations deal for the first time with questions directly related to territorial sovereignty in Antarctica. These include issues such as title to minerals; responsibility and liability; and authority to issue permits, receive fees and royalties, and enforce regulations. Other speakers countered that the CCAMLR negotiations had already dealt successfully with similar issues of territorial sov- ereignty in Antarctica. Participants concluded that because the minerals negotiations are complicated in addition by issues of East/West and North/South relations, and by the imperative of protecting the antarctic environment, it will take much goodwill, imagination, and compromise to achieve a workable and satisfactory result. Compliance with the Antarctic Treaty System In response to a question whether there had been any incidence of problems or possible violations of the Antarctic Treaty stipulation that "Antarctica shall be used for peaceful purposes only, it was pointed out that none of the inspections conducted under Article VII of the treaty has turned up any violations. Moreover, there have been no incidents of this sort, even during the period of United Kingdom/Argentine dispute over the Falklands/Malvinas Islands. One participant questioned a point in Watts' paper, that there would be no breach of Article IV if one of the claimant states should exercise its sovereignty rights or claims while the treaty is in force. The questioner drew attention to Article VIII, which specifies that each contracting party exercise sole jurisdiction over its nationals designated to carry out inspections and those conducting scientific research and their staffs. He asked whether the right of a claimant state to exercise jurisdiction in such situations would not be contrary to

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84 its obligations under the treaty. Watts pointed out that Article VIII imposes restrictions on the territorial states' rights of jurisdiction over observers and exchanged scientific personnel; because such exercise of jurisdiction is expressly provided for in the treaty, it does not involve any derogation from sovereign rights. He added, however, that in relation to a number of subjects not expressly covered in the treaty, actions by states could cause controversy over the exercise of sovereignty in Antarctica.