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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.
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(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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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 60°S 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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.
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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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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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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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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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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.
Representative terms from entire chapter:
territorial sovereignty
