Part One: Antarctic Treaty System: an Analysis

PART ONE

Antarctic Treaty System. An Analysis 2 Antarctic Treaty System We will beginour study of Antarctic politicsand marineresources with an analysisof the treaty system.The presentsystem grew out of a desireto rnain- tain amiablerelationships among the hostof nationsparticipating in the Interna. tional GeophysicalYear PGYJin 1957/1958.This original group of 12 nations established and participated in the Antarctic Treaty and to date have only four additional members. Since the ratification of the treaty in 1961,Antarctica has been in the business of science, and the treaty has meant more duties than privilegesto its tnembers,The questions of potentiallyvaluable resources, however, may mean the business of Antarctica is about to change. That, of course,has attracted attention to the so-called"exclusive" membership andcontrol through the AntarcticTreaty. These and other issuespertaining to the treaty itself, includingits evolutionaryabilities, will be addressedby two speakers and two commentators.

Lynne Carter Hanson ZaeeutiveDfrector Centerfor OceantSIauagement Studies UnfversttyolRhode Island Kings on,Rhode Island CHAPTER 1

The Antarctic Treaty System: Overview and Analysis

R, TUCKER SCULLY Director Office of Oceans and Po/ar Affairs U.S, Department of State Washin/rton, D.C.

INTRODUCTION

In these remarks, I would like to offer an overview of the Antarctic Treaty and the Antarctic Treaty System. In so doing, I hope to suggestsome analytical perspectives which might be brought to bear upon the Antarctic Treaty and to highlight what I believe are some of the salient, important characteristics of the Antarctic Treaty System. To start with, I would like to suggest two approaches from which one might view what is now called the Antarctic Treaty System. The first of these is an approach basedon the substantive content and substantive product of the system. The Antarctic Treaty Systemcan be viewed asan inter-linked network of substantive agreements,which includethe AntarcticTreaty itself andthat body of agreed recommendations,agreed measures, and additional instruments which havebeen concluded pursuant to the Antarctic Treaty. The first perspective is that of looking at the systemas a body of provisions,a body of measuresthat havebeen developed,beginning with the treaty itself, to deal with human activities in Ant- arctica, The secondapproach is to look at the Antarctic Treaty system as a system of governance,as an evolving set of political institutions which provide a means for identifying and responding to issues/activities/situationswhich require some form of common action among those active in Antarctica. To use a shorthand, I would like to suggestviewing the system from the point of view of its substantive content and secondlyas a processor a mechanism,a setof political institutions.

THE ANTARCTIC TREATY SYSTEM SUBSTANTIVE CONTENT AND PRODUCT

From either perspective, the Antarctic Treaty itself lies at the heart of the Antarctic Treaty System. I would like to briefly summarize the provisions of the treaty, underscoring those aspectswhich are significant with respect to how the system has developed in the period since the treaty entered into force in 1961. 4 Aritarcric 7'reety System

In relation to other international agreements the treaty is a surprisingly simple and precise agreement. Two of the basic aspectsof the treaty are outlined in the preamble. In the preamble,the partiesto the treaty first set forth as a basicobjective the reservation of Antarctica exclusively for peaceful purposes, The parties to the treaty resolvethat Antarcticaforever be usedfor such purposesand that Antarcticanot becomea sceneor object of international discord. A secondobjective of the treaty relates to scientific research.The experienceof the International Geophysicalyear IGYl was a major catalyst in the initiative to conclude a treaty and the preamble to the treaty, therefore, asserts as a major purpose continuation of the freedom of scientific researchin Antarctica as developedand practiced under the IGY and of the international cooperation both in research and logistics and other support activity which took place during that period. To give effect to these objectives the treaty, in its operative provisions, bans all activities of a military nature, including the testing of weapons. The treaty further prohibits nuclear explosions and the disposal of radioactive waste in Antarctica. With regard to scientific research, the operative provisions of the treaty establish an obligation that the freedom of scientific research and cooperation therein continue in Antarctica as applied during the IGY. Coupled with this obliga. tion, the partiesagree to the sharingol' informationregarding plans for scientific research in advanceof those activities, to facilitate the exchangeof personnel between expeditions and stations in Antarctica and to ensure that the observations and results of scientific investigation in Antarctica are shared aud made freely available, In supportof its basicobjectives, the treatyprovides for a systemof on-site inspection. Each consultative party has the right to designateobservers who have free accessto all stations and installations in Antarctica. This right of on-site in- spectionto ensureobservance of the principles and purposesof the treaty is another of its important aspect. To effectively establish its peaceful purposes and scientific research obligations, the treaty had to deal with the basic political and legal fact relating to Ant. arctica, that is the dispute, the disagreement among the nations who were then active and among the nations who are now active, over the status of Antarctica. Seven of the countries active in the IGY claimed territorial sovereignty in Ant- arctica. Some claims overlap and there are areas not subject to claims at all. The other nations active in Antarctica neither assert nor recognize such claims. Thus there was a disagreementover the political and legal status of Antarctica, which had to be dealt with in order to ensure the observance of the obligations set forth in the treaty. Article 4 of the treaty, which is I think a key provision, essentially rests on the approach that the positions of both claimant states and non-claimant states must be protected in the treaty. The position of each side is neither prejudicial nor weakened.At the same time, an approach is developedwhich per- rnits both claimant states and non-claimant states to agree on how activities take place in Antarctica, to apply common sets of obligations to those activities with which the treaty deals without prejudice to their basic legal and political views. Overview and Analysis 5

I'd like to return to this point later. Article 4, which reflects the juridical accom- rnodationachieved in the treaty, is an important element not only in the treaty itself but in the subsequent evolution in the Antarctic Treaty System. Two final aspectsof the treaty merit underlining. The first, is that the treaty is a limited purpose agreement. It deals with the peaceful purposes aspects, it deals with scientific research, it establishes an imaginative juridical, and political accommodation to allow obligations to be applied in those areas.It did not deal with other activities. It did not extend, therefore, the juridical and political accommodation to other activities, including resource activities. The secondaspect is that the treatyalso provided a meansfor its futureevolu- tion, In Article 9, the treaty calls for a meeting of the twelve original signatories within two months of the entry into force of the treaty and for regular meetings thereafter for the purposes of exchanging information, consulting together and developing measuresin furtherance of the purposes and principles of the treaty. The treaty further provides that, in addition to the twelve original signatories, representatives of other States that accedeto the treaty may also participate in these consultative meetings, during such time as such parties demonstrate their interest in Antarctica by the conduct of substantialscientific ~h activitythere, such as the establishment of a station or the dispatch of an expedition. There are now 31 parties to the treaty, Of these 31, 16 are consultative parties the original 12plus 4! with Brazil and India having becomethe mostrecent consultativeparties, Pursuant to this consultative mechanism, twelve consultative meetings have been held at approximately two.year intervals. A wide range of measures and agreed recommendations have been adopted at such consultative meetings measureswhich are designed to give effect to the peaceful purposes and scientific research obligations contained in the treaty itself and measureswhich deal with new issues and new activities which have arisen since the treaty entered into force in 1961. There have been close to 150agreed recornrnendationsadopted at the twelve consultative meetings, Some of the areas with which they have dealt are: the facilitation of scientific research,including the designationof sites of specialscien. tific interest where human activity is strictly limited in the interest of facilitating particular kinds of scientific observations; facilitation of international cooperation, both in scientific researchand in the logistics activities necessaryto support scientific activity; cooperation in meteorology and exchange of meteorological data; cooperation in telecommunications and logistics, including cooperation in air transport and emergency assistance;tourism; reservation of historical sites and monurnents; mitigating man's impact on the Antarctic environment; the exchange of information elaborating the obligations set forth in the treaty itself, the preservation and conservation of wild life and living resources,including the Agreed Measures of the Conservation of Antarctic Fauna and Flora, which provide for a system of specially protected areas and specially protected species to ensure that the impacts of human activity upon native speciesof wildlife in Ant- arctica are properly controlled and regulated.There have been recommendations and measuresdealing with the conduct and the organization of the consultative meetingsthemselves, and there havebeen recommendationsdealing with resources Antarctic marine living resources as well as tnineral resources.As a result of 6 Atiterctie Treety Systetn initiatives taken within the consultativemeetings, several separate legal instrumentshave been negotiated and have entered into force instruments which arelinked to, but legallydistinct from theAntarctic Treaty. These include the Conventionof the Conservationof AntarcticSeals, which wasnegotiated in 1972 to dealwith thepossibility that there would be commercial sealing activities in Antarcticaand to providefor properregulation thereof were it to develop.More importantis the Conventionon the Conservationof AntarcticMarine Living Resources CCAMLR! which will bethe subject of oneof our halfday sessions. It wasfrom an initiativedeveloped at the consultativemeetings that the CCAMLR was elaboratedand concluded in 1980!.It is now in force. Finallyit is pursuantto an initiativewithin the consultative mechanism that theon. going discussions to develop a systemfor dealingwith Antarcticminerals resourceshas originated. The question of Antarcticmineral resources activity first appearedon the agendaof consultativemeetings in 1973,In 1981at a meeting in BuenosAires the recominendationwas adoptedcalling for a negotiationof a regime for Antarctic mineral resources, There are a numberof' ways, therefore, that onecan approachthe substantive content of the Antarctic Treaty Systein. One can look at the treaty system asan armscontrol and disarmamentmechanism. The treaty itself declaresAnt- arcticaas a zoneof peace.One can look at theoperation of thissystem from the pointof view of howeffective that zone of peacehas been, One can look at it asa mechanismfor promotingscientific research and cooperation therein, We havea sessionon Antarcticscientific activity. Those who havebeen involved in themajor scientific disciplines which can be pursued in Antarcticarecognize that Antarctic research activities over the past several decadeshave made many major contributionsto thosedisciplines and to understandingthe planet as a whole, One can look at the Antarctic Treaty Systein as a mechanism for facilitating in- ternationalcooperation in Antarcticactivities. In preparingthe U.S, response to the U.N.Secretary General's request for viewsand information on Antarctica, wefound that during the history of theU.S. Antarctic Program, there have been somewherebetween 900 and 1000foreign scientists who haveworked with the U.S.program scientistsfrom some 30 countries. That is aninteresting statistic. It is an indicationof how the systemboth in the formal and informal sensehas facilitatedinternational cooperation. Finally, one roust look at the AntarcticTreaty asa mechanismfor conservingand managing resources both mineralresources andliving resources. Since these are major topics for otherparts of ourseminar, I will not go into greaterdetail on theselatter points.

THE ANTARCTIC TREATY SYSTEM A SYSTEM OF GOVERNANCE

Turningto theAntarctic Treaty from the other perspective, viewing it asa systemof governance,as an institutionalprocess, one should return briefly to theprovisions ofthe treaty itself. As noted, the treaty does include rather simple provisionsrelating to what are now known as consultative meetings not much more than that. In addition, there is an obligationfor the partiesto the treaty to establishworking relationships with the relevantspecialized agencies of the 0verv~ew and Artaii s>s i

U,N. systemor otherinternational organizations that havescientific or technical competencewith regardto Antarctica.Within the treaty,therefore, there are two kindsof articlesthat deal with subsequentevolution of the systemas a system of governance:those relating to the consultativemeetings and that relatingto cooperationwith other organizationshaving a scientificor technicalinterest in Antarctica. Again, as noted,there have been twelve consultativemeetings. The XIII meetingwill take place in Belgiumin 1985.The developmentof the Antarctic Treaty Systemcenters upon these consultative meetings. First, I wouldnote, that the consultativemechanism had a ready-madescientific advisory body, The Scien- tific Committeeon AntarcticResearch SCAR!, a non-governmentalbody, an In- ternationalCounsel of ScientificUnions PCSU! body, was established as a coor- dinating body f'or the International Geophysical Year activities. It has become a permanentbody within ICSU and hasprovided a continuingmeans for coor- dinatingand facilitatingscientific research activities and for identifyingresearch priorities in Antarctica.The ScientificCommittee on Antarctic Researchhas func- tionedin a very unusualway asa scientificadvisory body for theevolving Ant- arcticTreaty system.It has done so as a non-governmentalbody and as a body that can provide an important peer review function for the actions undertaken within the Antarctic Treaty system. The evolution of the systemhas involved two general kinds of action, The first has been an elaboration of the specific obligations contained in the treaty and the second has been the developmentof meansof identifying and dealing with new issues.In an institutional sense,the systemhas demonstrated innovative and pragmatic qualities which have allowed it to assimilate new interests and deal with new situations. The regular consultative meetings with the advice of a Scientific Committee on Antarctic Research,have generally provided the vehicle for identification of issues,issues requiring common action. However, in responseto such issues,a variety of techniquesfrom an institutional perspective have been applied, including the meetings of specialists,meetings of experts, specialconsultative meetingsdevoted to particular topics and ultimately as with the CCAMLR convention, the development of new institutions. The Antarctic Treaty itself and the Antarctic Treaty Systemare often considered somewhatelusive from a political scienceperspective, since they do not involve the establishment of permanent machinery. The secretariat function rotates among the consultative parties. Each host government in turn assumes the secretariatresponsibilities for organizingmeetings and for ensuringthe necessary informationflow to the participants.In spiteof thislack of permanentmachinery, the consultativemechanism has been able to evolvetechniques for identification of issues,for analysisof issuesand ultimatelyfor negotiationand resolutionof issueswhich is both pragmaticand flexible and which has permittedeffective responsesto be tailored to the particular kinds of problemswhich have been identified.These responses have included establishment of workingrelationships with otherinternational bodies such as the World MeteorologicalOrganization WMO!, InternationalTelecommunication Union gTU!, the U.N. Food and Agriculture Organization FAO!, with a numberof thosebodies again having scientific and technicalcompetence with regard to Antarctica.With respectto non-governmental Ant&rcttc Treatp System organizations,I have already mentioned the relationshipwith SCAR and there seemsto be an emergingrelationship with the International Union for the Con- servationof Natureand NaturalResources PUCN! as far as resourceissues go. In relation to the capacityof the Antarctic Treaty System to deal with new issues,it is important to cite Article 4 of the treaty, that is the approachto the Juridical and political accommodation which is contained in Article 4. To a cer- tainextent, the success of theAntarctic Treaty system in dealingwith new issues hasrested upon the ability of its participantsto extend the spirit of that accom- nwdation to new issues.The Article 4 accommodationbetween claimants and noa+laimantswas the basison which the Antarctic Treaty itself was concluded andhas been the oil whichhas lubricated the functioning o theAntarctic Treaty system.More on this point later, From the point of view of governance,there are also a number of characteristicsthat one can identify in lookingat the AntarcticTreaty System, First,the Antarctic Treaty system has demonstrated a gradualist and evolutionary approachto the resolutionof issuesby definingand dealing with issueswhich canbe dealtwith andnot seekingto resolveissues that arenot ripe for resolution.The secondis a pragmaticand flexibleapproach to the questionof institu- tionsand institutional response, characterized by the establishmentof the minimum machinerynecessary and development of newmachinery or newinstitutions only asand when necessary. These characteristics also rest to someextent upon decen. tralizationof the institutionalmachinery and institutional concepts. Third,the system has reflectec} the concept of participationindecision-making byparties demonstrating a concrete rather than simply a politicalinterest in the activitiesbeing dealt with. The systemis an openone in that no State is barred fromparticipation in the activities or in theinstitutions dealing with theactivities, Participationin decision-makingdoes rest on theactivities criterion, the criterion that wasdeveloped in Article9 of the treaty itself. A fourthaspect of the system,as a systemof governance,is the establish. mentof functionalrelationships between Antarctic institutions and otherinstitu. tionshaving competence relevant tothe work of the Antarctic institutions orhaving contributions to make. A fifthcharacteristic isthe rale of SCAR.The Antarctic Treaty System is a science-intensivesystem which has relied very heavily upon the scientists and uponthe results of scientificobservation and investigations in Antarcticaas a meansfor definingissues that require governmental agreement and as a means foroverseeing and reviewing the results of theintergovernmental responses to suchissues once identified. The negotiation ofthe CCAMLR Convention isa good example of this phenomenon. FinallyI wouldreturn to the Article 4 concept.To my view, one of themost importantcharacteristics ofthe Antarctic Treaty system is thatit hasapplied a uniqueconoict resolution/conflict avoidance approach to issuesin AntarcticaThe participantshave basic differences over the legal and/or political status of Ant- arctica.Yet, they cooperate peacefully there, Il' one looksat thecountries that parttctpate N. 'the treaty systefn and the state of thetf relations, there are paftlctpants thathave no diplomatic relations working effectively together within the Antarc- ticTreaty System. There are nations whose relations are not all that they could be, includingnations who in facthave been in armedconflict elsewhere and yet are still working together within the Antarctic Treaty System. This characteristicrelates ta the philosophythat was applied in the treaty itself Some commentatorstake the view that the AntarcticTreaty System somehowis an incompleteone. It is certainly not static, becauseit is continually evolving.However, it is sometimesargued hat it is incompletebecause the claims issuehas not been "resolved," In this view, unlessthe claims issueis resolved, what we are dealing with is either a kind of interim agreement or one that is doomed to collapse when the tough issues,as they are sometimes described, relating to resources,for example, arise. That argumentmisses the point.The AntarcticTreaty System rests upon the philosophythat an effort to resolvethe claims issue in the senseof extinguishing claims, on the one hand, or perfecting claims, on the other, would siinply lead to dispute, perhaps active conflict in the area. One of the basicelements in the AntarcticTreaty, and one of theunique elements of theTreaty, isthat it hasmade Antarcticaa goingzone of peace.It actuallyworks. It worksbecause the parties recognizethat it is possibleto developmeans of applyingcommon sets of obligations to activities in Antarctica, to ensure that activities in Antarctica meet necessarycriteria, includingenvironmental and peacefulpurposes criteria, without determiningwhether claiinant States are rightor whethernonelaimants are right. A balanceis established.An approachis taken which permits bothclaimants and nonelaimants,consistent with theirown legalviews of thearea, to applyobliga- tionsand the necessarystandards and controlsto activities,The issueof whether or not the claims issuehas to be resolvedance and for all is not a very relevant point. Furthermore,it is sometimesargued that theAntarctic Treaty is fine as far as it goes;that it is easy to apply the treaty's approachto scientificresearch and peacefulpurposes, but that it becomesmore difficult to do soin regardto resources. In my view, however,the possibilityof dealingwith resourcesissues, in a way thatwill satisfyenvironmental and other necessary criteria, rests upon following thesame approach. This would perinit parties, regardless of theirlegal and political viewson the statusof Antarctica,to cooperatein a systemwhich will ensurethat necessarydecisions can be made about potential resourceactivities and, if such activitieswere permitted,to ensurethat the necessaryobligations were applied to them.This philosophy,to call it that, is one thatdoes require a gooddeal of forbearanceand imaginationbut is one that hasdemonstrated its efficacyover the past two decades. Application of the spirit which is containedin Article 4 of the treaty lies at the heart of the Antarctic Treaty System as a means of conflict resolution/conflict avoidance,as a means of governance.

CONCLUSION

In concludingthis overview, I would like to refer to the reinark made by the Norwegian representativein the U N. First Committee about the debate on the Antarcticitem lastyear. He describedone of themost important aspects of the 10 Antarctic Treaty Systetn

Antarctic Treaty as "its potential for growth and development", calhng it an "exampleof that rare species,a dynamicinternational legal instrument."I believe that is an accurate description of how the treaty system has functioned to date. In summarizing the characteristics of the system, I would like to return to several points made at the beginning, The activities in Antarctica in 1959when the treaty was negotiated which were most important were those related to scientific researchand cooperation in scientific research and to reservation of the area exclusively for peaceful purposes.In spite of all the changesin the evolution and the possibilityof humanactivity that hastaken place in Antarctica,I would argue very stronglythat they remaintoday by far the mostimportant aspects of human presencein Antarcticaand will remainso for the foreseeablefuture. There has beena greatdeal of emphasisupon resources,upon the environment,subjects which will properly be given majoremphasis in theseproceedings. However, it is importantto notethat whatwe havelearned about the Antarcticenvironment, what we have learned about the possibilities of resourcesin Antarctica, and what we have learned about the requirements for managing and conserving each, has been fostered and engendered by the scientific activity and the cooperation in scientific activity that has been permitted and indeed promoted by the treaty and by the existence of an area reserved for peaceful purposes in which countries with very differing viewpoints, social systems,can in fact cooperate in a practical way. If one looks at the new issuesfacing the Antarctic Treaty System, including the issuesof resourcesand growing interest in Antarctica, I believe that one can be confident of its future viability. The manner in which it operates to prevent activities in Antarctica from becoming the source of conflict, the emphasisof the role of scientific research in the identification of issues and in proposing solutions to those issues,the way in which it facilitates the development of pragmatic and flexible mechanisms for negotiating and implementing necessarycontrols on human activity in Antarctica as and when such controls are perceived to be necessary,its capacity to accommodateand assimilate new players and new interests all of these characteristics lend weight to this confidence in the health and resilience of the Antarctic Treaty System. In looking at the characteristics of the system, I would like to come back to a couple of points made at the beginning. The activities in 1959when the treaty was negotiated which were most important were those that were related to scien. tific research and cooperation in scientific research and thus reservation of the area exclusively for peaceful purposes.In spite of all the changesin the evolution and the possibility of human activity that has taken place in Antarctica. I would argue very strongly that those remain by far today the most important aspects of human activity in Antarctica and will remain so for the foreseeablefuture, There has been a great deal of talk about resources,about the environment, points that I have not dwelt upon too much today, becausewe will have ample opportunity to do so in our discussions.But it is important to note that what we have learned about the Antarctic environment, what we have learned about the possibilities of resources in Antarctica, and what we have learned about the requirements for managing and concerning each, have beenvery largely fosteredand engendered by the scientific activity and the cooperation in scientific activity that has been Overview and AnalysiS 1/

permitted and indeed promoted by the treaty. And by the existenceof an area reservedfor peacefulpurposes in which countries with very diff ring objectives, social system etc., can in fact cooperatein a practical way. Therefore in looking at the Antarctic Treaty System as it stands now it is the conflict avoidance,conflict resolution componentsof the system,The ability of the systemto permit cooperationthrough the conflict avoidance/conHictresolu- tion kind of approachthat is its primary characteristic.One can look at not only the way in which the treaty system has evolved to date, but the way in which the treaty system will evolve on the basis of that point. If one looks at the new issuesfacing the Antarctic Treaty system including the issuesof resources,including the issues of how the system assimilates and deals with new interests in Antarctica it seemsto me we would be well advisedto look at the system in light of its two or three primary characteristics. One of course againhow it operatesto prevent activities from becomingthe sourceof conflict and how conflicts are resolved.Secondly how the systemwhich remains a science intensive one can permit or does permit the identification and emphasis of the role of scientific research in the identification of issues and the proposal of solutions to those issues,Thirdly the way in which the system has facilitated and does facilitate the development of pragmatic and flexible mechanisms for negotiating and implementing necessary controls on human activity in Antarctica as and when such controls are perceived to be necessary.

CHAPTER 2

The Antarctic Treaty: Victim of Its Own Success?

BARBARA MITCHELL Research Associate Internationaj Jnstitvte for Environment and DeveJopment London, EngIanrj

INTRODUCTION

The Antarctic Treaty of 1959evolved in a particularhistorical context:a world of only80 sovereign nations, many newly fledged. It wasa responseto a particular situation: the need to find a modus vivendi for those countries that claimed territory in the area and those that did not recognizethese claims. It was framed in termsof scientific researchbecause of the growing scientificinterest in the area and becausethis provided a good basis for agreement. The treaty has proved an excellent instrument for the purposeswhich it set itself, This afternoon we shall be hearing about the achievementsin scientific researchmade under its auspices.In the 20 odd years since it came into force in 1961,it has spread into new fields with considerablesuccess. It hasprotected Antarctic fauna and flora from the influx of scientistsand support personneland the multiplication of stations It has also developedguidelines for tourism, but these are all essentially nonwontentious issues. The treaty is now beingasked to takeon a newand very different challenge: the management of Antarctic resources, and to do so in a world which bears little resemblanceto the one in which it was drawn up. There are now some ltN sovereignnations at the United Nations, many of whom would like a sayin Ant- arctic management. In this new world, is it possible to establish sound arrangementsfor a new activity, such asresource management, on the basisof the Antarctic Treaty'

HISTORICAL CONTEXT

In order to appreciate the strengths and limitations of the Antarctic Treaty, it is important to understand its origins. The agreementwas designedto defuseconflict betweenclaimants and non- claimants in Antarctica. Tension had started to build after the Second WorM War with a seriesof incidents between the United Kingdom, Argentina, and Chile. I4 Antarctic Treaty System

Varioussolutions were put forward rangingfrom arbitrationby the International Court of justice ECJ!to a condominiumof claimants and non-claimantsor even someform of U.N. role.But all of theseproposed options foundered or> the questionof sovereignty:some of thenations involved were not preparedto makeany concessions on this rnatter. In the meantime,attention had turned to the potentialcontribution of Ant- arcticato scientificresearch. In the InternationalGeophysical Year gGY! of 1957/1958,nations with interestsin Antarcticahad managedto cooperatein an extensiveprogramme of scientificresearch in the areadespite their differences overclaims. The ingeniousidea of usingscientific research as the basisfor a politicalsettlement had first beenformulated in the Escuderoproposal put forward by Chile in 1948.interestingly, this agreement was only designedto last fiveyears,! When the IGY cameto anend, the Americansdecided to try to build on this arrangementand invited all the other countrieswhich had been active in the programme tn negotiate an Antarctic settlement on the basis of scientific cooperation.The result was the 1959 treaty. The continentwas opened up t'nthe name of scientificresearch. Article IV freezesthe territorialstatus quo: people are free to explorethe continent,set up bases,and carry out scientific work anywhere without their acts having any reper- cussionson anyone'sterritorial pretensions. A tradition of jurisdictional ambiguity was thus established for Antarctica. The treatyis silent on the questionof resources. An articleprovides for the possibilityof futuretbscussions on the:preservation and conservation of living resources in Antarctica.! Some commentators attribute this omission to lack of interestin the resources,citing LaurenceGould's well-known statement before theI960 U,S, congressional hearings on the treaty that he, "would not give a nickel for all the mineralresources" in Antarctica.Others argue that the negotiators recognizedat the timethat a settlementwhich covered resources would require a differentapproach, What is beyonddoubt is that the treatywas not designed to manageresource development, Thereare other relics of the pastin the treaty,If nationaldelegates were to sit down today and draw up an Antarctic Treaty they would not be able to in- cludeSouth Africa. Its policyof apartheidhas been widely condemned by the internationalcommunity, and it hashad to vacateits seat at the U.N. and prac- ticallyal! otherinternational bodies. By the sametoken. the regimewould have to reflectmany new concepts that havearisen in the past25 years,particularly in relation to the Law of the Sea and seabed minerals. But what datesthe treaty tnorethan anythingelse is the fact that 16 coun- trieswith no ~nternationallyrecognized legal claim to thearea are managingthis vastcontinent. The treaty was signedby the 12 countrieswhich had been active in Antarcticaduring the IGY; the sevenclaimants and five other states.It laid downthat full "consultative"membership was to be reservedfor theoriginal 12 signatoriesand others which demonstrate their interestin Antarcticaby "con- ductingsubstantial scientific research activity there." It wast8 yearsbefore a new State Poland!joined, The grouphas now grown to lti. There is,of course,a separatecategory of accedirtgStates. These have recentlybeen invited to observe consultativemeetings but still haveno decision-makingrole. ACHIEVEMENTS OF THE TREATY

The treaty has established a unique system for regulating and supervising scientific research which has reduced conflict between claimants and non

MAJOR DEVELOPMENTS SINCE 1959

In the years 1959-1975while the treaty was protecting Antarctica, the world around was changing dramatically. The old colonial empires collapsed and it becameever moredifficult for the greatpowers to act alone.New conceptsevolved. For example,in 1970the U,N. declared the seabedbeyond national jurisdiction to be "the common heritage of all tnankind," It was inevitable that in time these new ideas would be applied to Antarctica. Meanwhile, Antarctic resourceswere attracting increasingattention. Krill, the small shrimp-like crustaceanwhich is found in the oceansurrounding the continent, was suddenly seen as a new source of protein for humans or their cattle, There was also a growing realization, basedon indirect evidence,that the Ant- arctic continental shelvesmay harbor oil and gas.And with this cameapprehen- sion aboutthe environmentalhazards of any resourceexploitation that might take place, The changed international atmosphere and new interest in Antarctic resources togetherproduced two results.Firstly, the treaty parties embarkedon a process of drawing up resource regimes. After signing the Convention on the Conserva- tion of Antarctic MarineLiving Resources CCAMLR! in 1980,they set aboutdraw- ing up a mineralsregime. The secondresult of the changesdescribed above was that in November I983 the U.N, held its first debateon Antarctica despiteheavy lobbying from the treaty parties who havealways beenapprehensive about any 16 Antarctre Treaty System "outside" involvementin Antarctica,For the firsttiine, treaty partiesmet their critics head on, It was decided that the U,N, Secretary General should prepare a "coinprehensive,factual, and objectivestudy on all aspectsof Antarctica."

THE TREATY AND MINERALS

We nowcome back to the questionraised at the beginningof this paper;Does the treaty providea soundbasis for managingAntarctica's resources? There are two majorproblems: firstly, the treatywas never designed to dealwith resources; andsecondly, and perhaps more importantly, it is now viewedby a growingbody of States as a restrictive and unrepresentative club. Resourcemanagement, and particularly inineral resourcemanageinent, is qualitativelydifferent froin the managementof scientificresearch. Mineral resourcesare intimately tied up with sovereignty,ownership, and secrecy.In a scientificresearch regime, there is no directgain or lossto behad from sharing information;under a mineralsregime, information itself is a resource.Thus, for example,on-site inspection, an importantunderpinning of thecurrent scientific researchregime, would not be easilyaccepted in the caseof minerals.The en. vironinental hazardsare also qualitativelydiffei'ent. Is it possibleto manage resourcesin the sameopen ambiguous inanner as scientificresearch? ls it possible to manageresources without settling the questionof ownership? We haveseen how the treaty dealswith the issueof sovereignty.it sidesteps it. The sameapproach was usedin the sealsconvention negotiated in I972and in CCAMLR. The CCAMLR reiterates the AntarcticTreaty's famousArticle IV freezingclaims and adds that nothing in theconvention shall impinge upon coastal Statejurisdiction within the convention area, Whose jurisdiction where is left un- said, Becausethe convention extends beyond the treaty area and includes several islandsoutside the treaty regime,non-claiinants can read this to refer to rights outsidethe treatyarea. Claimants can read it to refer to rights both insideand outside the area, Since the introduction of 200-mile fishing zones, all regional fishery ar- rangementseverywhere have been renegotiated to take these, zones into account. Thereis, therefore,nothing unusual about exempting areas under coastal State jurisdictionfrom the scope of a fisherycommission's regulations. What is unusual is that in the Antarctic there is disagreement as to where coastal State jurisdic- tionbegins and ends. Problems may not have arisen so far because the krifi fishery is in its infancy.But, if fishing developsapace, there couldbe seriousconfiicts asto who is entitledto control it. Similarproblems have arisen over tunafishing off Latin America,but claimantsand non-claimants may feel there is too much at stakein Antarcticato seekthe sortof backdoor compromises which haveoiled tunafishing. They certainly felt there was too much at stake to allowthe CCAMLR regulatingcommission to allocatecatch quotas or introducea strongsystem of enforcement both held to bevital instrumentsof fishingconservations but both tied up with the question of sovereignty. Althoughthe conventionis rightlyhailed as an iinportantachievement in before-the-event environmental regulation, applying the treaty approach of Vier>'mof' Success 17 "jurisdictionalambiguity" to the conservationof Antarcticliving resourceshas left open considerable loopholes which may undermine its otherwise bold con- servationist approach In their negotiationsto establisha mineralsregime, treaty partiesare again applyinga systemof jurisdictionalambiguity, Their formalminerals agreement, whetherconvention, treaty or protocol,will say nothing about ownershipof resources: this question will never be directly settled. The relevant attributes of sovereigntywill eventually be hammeredout but only on a case-by~ basis in terms of specific contracts between the companiesor countries interestedin ex. ploitation and the claimants involved. It haslong been conventional wisdom to suggestthat, when a mineralsregitne is eventuallydeveloped, a solutionwill haveto be foundto the territorial question. Mineralsgo evencloser to the heartof sovereigntythan fish becausethey are fixed in place and non-renewable.Indeed, until quite recently most commentators outsidethe systemindicated that ownershipwould haveto be settledbefore minerals could be developed.Those within the system were more sanguinebut, when an embryonic version of a systemof jurisdictional ambiguity was informal- ly proposedby New Zealandin 1976,many delegates felt it was quite unrealistic. Unrealistic perhaps,but the only way forward within the treaty system,as delegatesincreasingly realised,In my book,Frozen Stakes,I explored the possible options for the treaty parties and concluded that, if they were to construct a minerals regime on the basis of the treaty, they wouM have to fudge the territorial question. But conventional wisdom is right: not only is a regimeof jurisdictional ambiguity for Antarctic mineralshard to swallow at the conceptualstage but it leaves a hostof serious practical problems. Many basicquestions about control, responsibility, and enforcement remain unanswered,And hereI get into practical problems myself, BecauseAntarctic negotiations are held in private and few documents are released,it is not possibleto go into a detailedcritique of the latest negotiating text. But a few general comments can be made. The most recent documentavailable to the public, the first "Beeby text" contained seriousflaws in environmental protection, despitesome cotnmendable environmental principles. The environment is always the natural loser, be it Amoco Cadiz, toxic dumps in the USA or Lake Baikal in the USSR. Unless active, well- informed preemptive steps are taken to protect it, the environment will always come second and it will only be "after the catastrophe" that action is taken, rules tightened, and research done. No doubt many of the environmental flaws in the first Beeby text have now been ironed out. But inherent weaknesses will remain in any system of jurisdictional atnbiguity, however detailed the final treaty or convention. To avoid of- fending claimants or non~laimants the framework has to be a very open one. But ambiguity over who ownswhat canlead to ambiguity over who controlswhat. Can there be a solid legal framework for responsibility and enforcement with a single channel of command? Once mineral exploration starts, real problems will occur when things go wrong, Prevention of explosions and flooding during mining and blowouts during drilling will require real enforcement of strictly specified i8 Antarctic Treaty System standards,Can there be unambiguousarrangements for enforcement and responsibility in the case of accidents? The attributesof ownershipmay be neatly divided up in the guidelinesof thebasic minerals agreement and the individual contracts. But therewill be no agreementon the underlyinglegal basis for mineraloperations, as was pointed out only too clearly by the U.K. representativeat the U.N. debatelast autumn whenhe said that the opposingviews as to the legalbasis on whichAntarctic activity can be regulated were irreconcilable. Will firm arrangementsbe madefor compulsoryjurisdiction in the eventof disagreementbetween treaty parties? Neither the treaty nor CCA1VILRcontain such a provision.The failure to settle sovereigntymakes this essential. Thereare also dangers in leavingimportant environmental decisions to the smallregulatory groups which seem to bea necessarycomponent of thissystem of jurisdictionalambiguity. Not onlydoes this militateagainst uniformity over the continentas a whole but, as a number of U,S. environmentalgroups have pointedout, sincethe contract will essentiallybe drawnup by operatorand claimantwith no conservation-minded party necessarilypresent, environmental concerns could be overridden. Practicalproblems have already arisen under the treaty'ssystem of jurisdictional ambiguity.In 1977,the treaty partiesagreed to "refrain from all explora- tionand exploitation of Antarctic mineral resources while making progress towards the timely adoptionof an agreedregime." But a numberof seismicsurveys are now underway,some such as that by the JapanNational Oil Corporationmore explicitlyresource-oriented than others. Another example of the treaty's failure to preventenvironmentally damaging activities is thedevastation caused by the buildingof a Frenchlanding strip in TerreAdelie, wounding and killing a number of birdsand destroying the habitat of manyothers. This was never raised within thetreaty forum and may well beincompatible with the agreedmeasures. The treaty'sloose structure, an essential by. product of thesystem of jurisdictional ambiguity, enablesit to be ignoredover difficult issues, The British governmenthas recently proved unable to preventa Britishcom- pany BritishNuclear Fuels! from polluting British beaches with Britishnuclear waste.Will a treatygovernment be able to assureits public that environmental standards will be brought to bear against, for example, an Argentine company pollutinga beachclaimed by theNorwegians? And all this in a remoteand extremely vulnerableenvironment, In short,there is cause for concernas to whetherthe basicsystem of jurisdictionalambiguity enshrined in theAntarctic Treaty will provea soundbasis for managingAntarctic fisheries let aloneminerals. But there is another more serious problem.The dispute over sovereignty no longer affects just 16countries but the whole world. In his speechopening the U.N. debate,the delegatefrom Antigua and Bar- budaasked, "why shouldan islandknown for its beautifulbeaches, halcyon climate, warmth,hospitality, and consummate skill at cricketbe interested in an areawhere the world's lowesttemperature minus 125'F has beenrecorded? I am, I believerightly, interested in thefate of theCalifornian Condor and the destruc- tion of the Tasmanian wilderness by the building of a dam. We are citizens of Vivat>m of Sitcom'cs t9 oneworld," There is a growingswell of opinion in theinternational community challengingthe treaty frameworkwith its restrictivemembership. Thisinterest has not sprung up overnight, India, for example, attempted to raisethe subject before the treaty was signed. The issue would undoubtedly have arousedmore interestat the time of signaturehad it not been for the fact that manydeveloping countries were still under colonial rule or hadonly just achieved independence.From the rnidseventiesonwards a numberof thesenew countries hadtried to raisethe subject but were consistently rebuffed by thetreaty parties, usuallyon the grounds that any move to open the Antarctic question atthis stage wouldcomplicate the delicate Law of theSea negotiations with their already over- burdened agenda. Internationalorganizations such as the World Meteorological Organizations, Foodand Agriculture Organizations, U,N, EnvironmentProgramme and U.N, Economicand Social Council were also put off by treatyparties from involving themselves in Antarctica. Finally,with the conclusionof the Law of the Seanegotiations in 1982, Malaysiabrought the subject up. This move to put thesubject on the U.N. agen- dasoon got wider backing, In Spring1983 the summit meeting of theNon-Aligned Movementagreed that "the explorationof the area and the exploitationof its resourcesshall be carriedout for the benefitof all mankind,."They calledon the GeneralAssembly to "undertakea comprehensivestudy in Antarctica... with a view to widening international cooperation in the area." As a result,the subjectwas placed on the U.N. agenda,and, as notedearlier, a fulldebate held and the U.N. SecretaryGeneral asked to preparea reportfor next autumn. In their speechesat the U.N., mostdeveloping countries expressed support for the treaty'sachievements but wanteda greatersay in future developments, This is not just knee-jerkenvy or internationalism.Although Antarctica is sub- jectto nationalclaims and scientific research agreement, if thereever was an area that wasintrinsically international and neededa genuinelyinternational system of manageinent,this mustbe it. The continentrepresents one-tenth of theworld' s landsurface. It lies beyondthe inhabitedregional frontiers and is comparatively untouchedby man.It alsoplays a partin man'ssurvival everywhere, Why should outsidershave any respect for the principle of internationalism if it cannot be properly applied hereP It isoften argued that the treaty is a self-denyingordinance, under which treaty partiesacquire no rights.Under a mineralsregime, it is maintainedthe areawill still be open to all. But the principleof first come,first servedwill not satisfy manydeveloping countries. Even revenueWaringmay not overcome this problem: they may want direct involvement in the operations themselves, in the ad- ministrativesystem, and in the financialbenefits, And if theydo notget it, because the big and powerfulnations ignore then, Antarctica will becomenot a beacon of agreement and deinilitarization but a source of friction, another thorn in the sideof internationalism,another problem bequeathed to our children,just like the tragic farce of the FalklandsMalvinas. Antarc ic Treaty Sys em

In short,failure to listen to the viewsof developingcountries could havereper. cussionson all internationa] negotiations.It would increasetension and suspi- cion of thesecountries which are parties to the Antarctic Treaty, yet further weakeningNorth/South relations in general, In a narrowerframework, if a largegroup of countriesdo not accepta regime, there will be temptations and excuses Foroutsiders to flout its rules, This is bad for the environmentand for thosewho invest moneyand undertakeexploration and exploitation,It is not likely but possiblethat a multinational companywill "use"a country whichdoes not recognizethe legal validity of a regimeas a flag of conveniencefor the company'soperations and thereby seek to escapethe restrictive regulationsof the regime agreedto by its own government.In the medium term,some of themore technologically advanced developing countries would be able to operatein Antarcticaoff their own bat.There will be no clear legal structure to deal with this. It is also conceivable that members of the wider internationalcommunity could take sanctionsagainst countrieswhose companies, or which themselves,are active in Antarctica,on the grounds that they have ap- propriated a global resourcefor individual gain. Weshould not losesight of the time scale.Exploration and exploitationsmay be delayeduntil well into the next century.Seventy five yearsago the sun neverset on the BritishEmpire and few people in the west had heard of japan.

CONCLUSION

The AntarcticTreaty doesnot seemto provide a basisbroad and solid enough uponwhich to constructresource management regimes. But it remainsa unique «nd valuableinstrument which haspromoted scientificresearch, protected Ant- «rctica's environment from the advent of man and his weaponsand ensured peacefulcooperation in the area,keeping territorial conflictat bay.It shouldbe preservedand more countries encouraged to join. The antagonismcurrently ex- pressedtowards the treatywould be dispelledif it were madeclear that it did notclaim to providethe constraints for controlling thearea's resources. If anyone is tryingto underminethe treaty,it is the treaty partiesthemselves by asking too much of it. The United Kingdomdelegate whose speech I referredto earlierwent on tosay: "It mustbe one of thechoicer international ironies that ao much good should comeout of «n inabilityto agreeabout the basison whichthat goodshould be done." Is the treatynow falling victim of its own success? The treatyshould be left to run Antarcticaffairs as it doestoday, with minor modificationsto increaseaccountability such as widercirculation of documents, increasedmembership and closer consultation on all matters underits purview. There is no reasonw'hy treaty parties should not enjoyan importantposition in a futuremineral regime, but it wouldbe wiserfor everyoneto approachthese negotiationsfrom a differentdirection, recognizing the interests of thewider com- munityand trying to clarifythe legaIbasis for operations.If the objectionis raised that this wouldviolate Article IV of the treaty, it wouldbe worth considering to what extent the draft minerals regime in effect violates this accommodation by divvying up the different attributes of sovereignty. The treaty is a vital, if limited purpose instrument. The best guaranteeof its survival is to recognize these limitations.

Commentaries

WILLIAM R. MANSFIELD

Deputy Permanent Representst'ive New Zealand Mission to the United Nations United Nations Plaza New YorJr,New York

As the first two presentationshave made clear, it is helpful whenanalyzing the Antarctic Treaty system to have an eye to the past as well as to the future. Certainly an understanding of the system requires careful considerationof the origins of the treaty itself. Barbara Mitchell has drawn our attention to the very great difficulties which faced the negotiators in 1959.At the center of' these difficulties,and unditninishedby the cooperationachieved during the Interna- tionalGeophysical Year PGY!, was the fundamentaldisagreement over sovereignty in Antarctica. Recent history reminds us that disputes about sovereignty are perhapsthe hardest of all to contain, let alone resolve.In addition to the dispute between claimant and nonwlaimant countries and between the countries with overlappingclaims, the negotiationstook place against the backgroundof a high level of tensionbetween the United Statesand the Soviet Union which gavecause for concern that, despite their cooperationduring the IGY, military competition between them could be extended to the Antarctic region.

THE IMPORTANCE OF ARTICLE IV

Why did it prove possibleto negotiatea way through this situation?Essen- tially, I be!ieve becauseall the governmentsconcerned feared that if an accom- rnodation were not found instability, if not chaos, might result. How was the basic accommodation achieved? The key, as Barbara Mitchell points out, is to be found in Article IV of the treaty which in many ways is its central article. It was clear at an early stagein the conferencethat there was no way of resolving the problem through either the claiinant States or the non- claimants giving away their basic position. What Article IV does is to provide a basison which disputes about sovereignty can be put to one side. In essence it saysthat neither the treaty itself nor acts or activities taking place during the life of the treaty shall prejudice the position of: a! countries who claim to exer- cise sovereignty;b! countries who do not recognizesuch claims; or, c! countries who asserta basisof claim. Additionally, it prohibits new claims or the enlarge- ment of existing claims. Antarrt

Sincethis article is of suchcentral importance,l want to say a fewmore words about it. lt is sometimessuggested that the article freezes rights to territorial sovereignty in Antarctica or renders the claims ineffective. That is not the case. The claims cannotbe enhancedin the life of the treaty but equally they are riot diminished.To quote the words of a very experiencedAntarctic negotiator,Keith Brennanof Australia, "The article thereforekeeps alive keeps 'simmering' as distinct from 'frozen' claims to territorial sovereigntyin Antarctica,and likewise keeps alive 'basesof claims' to territorial sovereignty," Or, as another Antarctic negotiator of long experience, Fernando Zegersof Chile, often puts it, "What was frozen was the struggle for sovereignty" Thus,it wasArticle IV which was the key to the successof the 1959negotia- tion aa a wholeand which allowed for the elaboration ol' the treaty's basic elements. Thoseelements have been well describedand commentedon by both speakers. 1n summary they are-

The demilitarization of the entire continent,the banning of the testing of nuclear weapons,and the dumping of nuclear waste; Thesetting up of a systemof on-siteinspection to ensurethat basic rules are observed; The protection of the freedom of scientific research and the maintenance of a unique system of cooperation in scientific in- vesttgation; and The provisionof a platform for the developmentof a very broad rangeof specificmeasures in elaborationo the Treaty principles, including in particular, measures aimed at the conservation of resourcesand the protection of the very special Antarctic environment.

Theseelements are of greatimportance, but whetherwe are looking back at what hasbeen accomplished under the treaty or looking forward to its future we must not overlookthe fundamentalreality that through it, anrl in particular through ArticlefV, a lid wasput on the potential for tension,rivalry, dispute,and conflict inherent in the situation that existed in 1959. We must also remind ourselves that in the absenceof the treaty this potential would exist today, Without question in my view,the mostitnportant fact aboutthe treaty is the assuranceit represents, and it is the only assuranceavailable, that Antarcticawill remainpeaceful and stableand will not becomein, the words of the treaty, "the sceneor object of international discord. This stabilizingeffect of the treaty is very important to countries like New Zealandfor whomthe Antarcticis their backyard.lt is important to the claimant andnonclaimant parties to the treatywho are activein Antarcticaand who without it might find themselvesin seriousdispute or openconflict. And it is also important to the superpowerswho might otherwise feel obliged to view the area in military andstrategic terms. Firially, it is surely of someimportance to thewider internationalcommunity as a major contribution to the achievementof the purposes of the United Nations. TREATY ACHIEVEMKNTS

The speakershave both dealt with theway the treatysystem has functioned in practice.I do not havetime nor is it necessaryfor me to reviewand comment furtheron that. It is sufficient,first, to notethat few havequestioned that the record of achievementsis impressiveand. second, to emphasizeTucker Scully's commentthat the hallmarkof the systemhas been its dynatnicquality which has enabledit to respondin a pragmaticand flexible way to changingcircumstances and new situations.It is a constantlyevolving system,

TREATY' CHALLENGES

If we look toward the future, it is clear that there are two new and related challengeswhich the systemfaces There is the taskin whichthe consultative parties arecurrently engaged of devisinga regimeto governAntarctic mineral resou.rces,and thereis the increasinginterest which countries outside the treaty systemare now showingin its activities.The questionBarbara Mitchell asks in effect is,"Is the treatysystem equal to these,challenges?" My shortanswer to that questionis not only that it is but that it hasto be. To explainthe reason for thatview I wouldgo back to the origins of thecurrent negotiationon minerals. They do not lie, as some would have it, in a desire on the partof the consultativeparties to carveup the mineralresources of Ant- arcticaamongst themselves before the restof theinternational community can get organizedto stopthem. In fact,they go backabout 15years and they have to dowith the same concern that launched the negotiations that led to theadop- tion of thetreaty itself namely a desireto avoidinstability and conflictin the region. BarbaraMitchell pointsout that the treaty is silenton the questionof r~urces. Backin 1970,at theconsultative party meeting in thatyear, New Zealand madeprecisely that point and urged the consultative parties to considerthe need for a comprehensiveregime on Antarcticresources. Resources had not seemed an issuein 1959.Barbara Mitchell quoted Laurence Gould's famous pronounce- men.t on the subject.But in 1970 New Zealand'sconcern was that with advances in technologyit was at leastconceivable that at some stage an unregulated scramble might develop,in particularover such mineral resources as the area mightbe foundto hold.Any such scramble would bring back to center stage the conflict- ing positionsabout sovereignty that the treaty had successfully put to oneside. In theworst case, the result could be thebreakdown of thetreaty with theloss of the disarmamentregime it containsand, even more importantly, the lossof the stabilizingeffect it hashad on the entirearea south of latitude50 S. It could also, of course,have the mostdamaging consequences for theAntarctic environ- ent aboutwhich New Zealandersas neighborshave a specialconcern. Thereal origins of thenegotiations and their continuing essential purpose is, therefore, political and not economic. 25 Arrlantic TrenarySystem

DEVELOPING h MINEEVLLS REGIME

Tomorrow we will hear from the experts about mineral resources in Antarc- tica, and I would not wish to prejudge what they may tell us. So far, however, the information available to- me would confirm what I have just said about the originsof the negotiations.There is, I believe, no certainty that minerals will ever be found therein commerciallyexploitable quantities. LaurenceGould could still turn out to be right. I wouldbe thefirst to agreethat thenegotiations af a mineralsregime under the Antarctic Treaty system is not an easy task. I would agree too that it is more difficult or at leastmore complicatedthan the negotiationof the regime for the conservationof Antarctic marine living resources. But in the end, as is always the case,the question of whether the difficulties can be overcome is essentially a matter of political will, The difficulties facing the negotiatorsiri 1959 must at times haveseemed insuperable to them, An imaginativesolution was found then and I am sure it can be found again now, Whateverthat solutionis, it will have to ensurethat a means is provided to deal with the practicalrealities of resourcemanagement including the problems mentionedby Barbara Mitchell of enforcement,responsibility, and dispute set- tlernents.It will also have to provide a sound basisfor protecting the Antarctic environment,The consultativeparties have already made a commitment to that effect and certainly any regime which could not provide confidencein that area couldnot f n,dacceptance in New Zealand. In short,to answer Barbara Mitchell's broader question,I believe it is possible to develop a regime for the effective managementof resources w ithout settling the issue of sovereignty. I would go further and say that it w ill have to be done without settling the sovereignty issue because there is no consensus on that issue.

COMMON HERITAGE

It is ~orth commentinghere on the concept of the common heritage ol' mankind which,as Barbara Mitchell notes, has been talked about with respect to Antarctica I would note that that concept could be applied to outer spaceand the deep seabedbecause there appeared to be a consensuson the status of those areaL Each had been the subject of extremely limited human activity and nei ther had been the subject of any claim to sovereignty.lt is quite another matter to attempt to applythe concept to an area which has by now generateda very substan. tial history of humanactivity, which has been the subjectof claims to sovereign. ty dating back at least 75 years,and which is the subjectof a prewxisting legal regime amongst the States most directly concerned. I would suggest it is neither reasonablenor realistic to supposethat the commonheritage concept can make headway with respect to Antarctica There ia no consensus on the legal status of the continentthat would permit that. There are, in any event, other elements in that concept that might give cause far concern to some in particular, the fact that it is an exploitation and not a conservation concept. It represents a call for the exploitation o resources for the benefitof all and not for conservationof the environmentin which those resources are located. I havemade it clearI think that, in my view,the AntarcticTreaty is ir- replaceableand that anyregime to governAntarctic mineralswill haveto be developedas a partof theAntarctic Treaty system, f havealso said l believethat thissystem is equalto thechallenge of devisinga sound,eflective, and environmen- tally responsibleregime.

OTHER CONCKRTVS

Canit successfullymeet the other issue which it nowfaces the growing interestin Antarcticaof countrieswhich are outside the treaty system? This in- terestis of fairlyrecent origin. For thegreatest part of thehistory of thetreaty, the internationalcoromunity at largehas shown little or no interestin it, in the work doneunder it, or in thebiennial meetings of theconsultative parties. At the sametime, it is equallytrue that the consultativeparties have done little to encouragesuch interest, Accordingly, there is currentlysomething of aninfor- mationgap and a considerablenumber of misconceptions about the treaty system. 1 wouldnote in passingthat one of the most important of thesernisconcep- tions,which is representedin the chargeof exclusiveness.relates to the consultative statusprovided for in ArticlelX of thetreaty. The factis that anyparty to the treatythat establishes a substantial scientific programine in Antarcticaimmediately assumesa range of practical,financial, and legal responsibilities relating to its activitieson the continent the discharge of whichrequires regular consultation andcooperation with theother countries carrying out similaractivities!. What inayseem like exclusiveness,therefore, is reallyonly a practicalrecognition that thosewho can best take decisionsbinding on those who are active in Antarctica arethose who themselves, year after year, have supported programines for the furtheranceof scientificresearch and for the protectionof the Antarctic environment. Thedynamic quality of thetreaty system is, I think,already in evidencein theresponse of theconsultative parties to thenew level of internationalinterest in Antarctica.As to theinformation gap, they have of course drawn attention to thefact that by demilitarizing the continent, keeping Antarctica a zoneof peace, andprotecting the freedom of scientificresearch there, the treaty has made a major contributionto thepurposes of the United Nations and thereby benefits the intei'nationalcommunity at large. A moreconcrete step is their offer to the U.N. Secretary~neral tocooperate fullywith him in thepreparation of thestudy he was requested by lastyear' s GeneralAssembly to prepareand in particularto provide him withthe information at their disposal.Of equalif not greatersignificance was their decision at theconsultative meeting in September1983 to admitobservers from all thecoun- trieswhich are party to thetreaty, This decision was followed by a furtherdeci- sionat theMay t984 meeting on mineral resources thatall future meetings on that subjectshould similarly be opento theseobservers. Antarctic Treety System

Asto the substanceof the mineralsnegotiations. the consultativeparties have alreadymade a publiccommit tnent that the mineralsregime they arepreparing will not prejudicethe interestsof all mankind in Antarctica The involvement in future tneetingsof observersfrom all the countrieswhich are party to the treaty will undoubtedlyhelp in finding ways which give specificityto that commitment.

CONCLUSION

To sum up, l would argue that the Antarctic Treaty is irreplaceable.It has providedpeace and stability in the regionand a basisunder which legitimate activitiescould be carried out in Antarctica by all thosewith an active interest theredespite their differenceson sn issueas fundatnentalas sovereignty.I wou!4 alsosuggest that thedynamic character of the treatysystem is suchthat there is no reasonwhy it cannot continueto do so as the rangeof both activities and interests inc reJLRcs

CHR!STOPHER C. JOYNER

Assist'ant Professor Po!iticel Science The George Washington University Washington, D.C.

The Antarctic Treaty clearly has operated successfully over the last quarter of a century.In his overview presentation,Tucker Sculiy eloquentlyprovides this conferencewith an apt and usefulanalytical frame of referencein which to view the Treaty System.Similarly, Barbara Mitchell's paper supplies a thoughtful, cogent,and at times politically provocativeattitude towards the contemporary AntarcticTreaty situation and the needtherein for substantivechange. l would like to directmy commentary primarily toward BarbaraMitchell's analysis, link- ing to it variousfacets of the Antarctic Treaty Systemwhich Tucker Scully describes in his opening remarks.

The thrust of Barbara Mitchell's paper addressesthis query: ls it possibleto establishan internationallysound and equitablearrangement for resourcemana~ mentunder the aegisof the Antarctic Treaty Systemt'Her conclusionis one of doubtfulness. Given the historical context of the treaty's evolution, coupled with the nuancedpoliticolega! ramifications stemming from the hallmark of "jurisdictional ambiguity"that underpinsits operation,the AntarcticTreaty doesnot seem to supply the foundation necessaryfor constructing viable resource management regimesin the region.While I agreewith much of this position, I also havesome Commenraries 39

qualmsabout it. So, let me proceedby setting out those issueareas held in common and then turn to thoseconsiderations which I found somewhatbothersome. Finally, throughoutthis commentaryare interspersedmy own thoughtson the AntarcticTreaty, the polittcalcement which holds it together.and the prospects for its success over the next decade.

POSITIVE AND NEGATIVE ASPECTS OF THE TREATY

First, thereis no questionthat the AntarcticTreaty hasperformed laudably well over the past 25 years in achicving thosepurposes for which it was original- ly designed.Both speakersplainly point this out: The Treaty has functionedef. fectively to promote scientific researchand cooperationwithin the treaty area i,e,, south of latitude 60'5!, in a climate of political collaboration and legal ac. commodation.Because of the treaty, Antarctica remains the only demilitarized continent;it is alsodenuciearized in terms of weaponstesting and wastedisposal, therebymaking Antarctica in essencea nuclear-freezone, There is also provision for unannouncedon-site inspection, no small feat today in itseIf. The treaty, however, as Barbara Mitchell notes, is conspicuouslysilent on resource-related matters. In this connection, mention is made of Laurence Gould's statement in 1960 that he would not give a nickel for all the mineral resources in Antarctica.Interestingly enough, two yearsearlier Mr. Gould made,in my view, a more accurate and telling observation in a lecture before the American GeographicalSociety, He said,that it was"unwarranted to assumethat greatriches exist in Antarctica. But, it was just as equally unwarranted to assume that there were none." l agree with this latter point. All the geologicalevidence is not yet in to say with definitude whether portions of Antarctica might be prospective PrudhoeBays or rnineralwise,the continent is nothing more than a frozenwhtte Sahara. According to Barbara Mitchell's thesis,a principal factor faults the Antarctic Treaty in the contemporaryinternational milieux. On/y l6 statesare managing resource-relatedactivities around the continent. Furthermore, they have self- assumedthis responsibility without any universally sanctionedor recognizedin- ternational legal mandate. Certain/y, one can interpret that situation to be the case.Nevertheless, it is equally true that the treaty regime and the structural evolution of its systemic charactersince 1961has undeniably been valid under internationallaw. Moreover, it constitutesa legitimate instrument of policy regulation for those Statesparty to its provisions. Not of lessimport is the fact that no State or group of States hasyet tried formally to impugn the legitimacy of the Antarctic Treaty, the Con- vention of the Conservationof Antarctic Seals, the Conventionon the Conserva- tionof AntarcticMarine l.iving Resources CCAMLR!, or for that matter,any of the severalmultilateral anti pollutionagreements that applyto the southern

Jnthe same vein, the AntarcticTreaty System is opento all States,Any State mayaccede to anyof thesetreaty instruments if its governmentso desires.Any 3U Art tarcttc Treaty Sy~rem Statemay apply for consultative party status, if it sodesires. Admittedly. adrnis- sionto the AntarcticTreaty ConsultativeParty group ATCP! is contingentupon demonstratingconduct of "substantialscientiftc research activity there" Art icle IX, paragraph2$ but, nonetheless,the option to join is availablefor Stateswill- ing to makethat investment.Simply put, membershipto thc AntarcticTreaty Systemis open,and participation as a consultativeparty is attainableto those governxnentswilling to invest the requisite time, money, and scientific cotntnitment.

INTERNhTIONAL AGREEMENTS TO FOSTER NATIONAL INTERESTS

Onanother tack, Barbara Mitchell detects a fundamentalproblem in thatthe ATCFshave chosen to apply a processof "jurisdictionalatnbiguity" to those regimesdevised for Antarcticresource conservation and management. That is, bothprecise definition of resourceownership and clarification of sovereigntyat. tributeswere skirted in CCAMLR just asthey were by Article IV of the Ant- arcticTreaty and as they likely will be in the completedminerals regime text. Thereason for thislegal lacuna is plainlyapparent. It representsa strategyof politicalpragmatissn, one aimed at avoiding frustration of anagreement over the protractedlegal nextls of competingnational claims and territorial sovereignty qt3estiona,I agree that such jurisdictional atnbiguity may be politicallypractical inthe short run; but, over the Iortg-term, I feel that failure to resolve the sovereignty issueentails a copout;furthermore. refusal to deal headwn with the ownershipof-resourcesquestion inevitably will perpetuateserious problems in the future, particularlywith respectto safeguardingthe Antarcticenvironment, both onshore andoffshore. Thus, the catch-22here is thatif the ATCPsattempt to settlethe claimsissue, they can only fomentdiscord, lf theyeschew it, theyare able to pro- motecollaboration through circurnventiort, In eithercase, the legalissues remain unresolved. Herein, l think is coucheda critical realisation that is so obvious it is often overlooked,discarded, or merelytaken for granted.National governments tend to forntulateinternational agreements principally to further, enhance, or protect theirown national interests. ln fact,this realityexplains why internationallaw ingeneral and the Antarctic Treaty in particularwork, It is in the interestof par- ticipantparties for them to work, To be sure, this observationholds true for the ATCPs,just as it doesfor theUN. GeneralAssembly. Regarding the resource regimeappendages in the Antarctic Treaty System, jurisdictional ambiguity pro- videsa convenientvehicle for governmentsto protecttheir respectiveinterests, goal-values.and priority concerns in the region.And, what specifically are those vital nationalinterest concerns that make the Antarctic Treaty relationship so «pecialand so desirable for theconsultative parties! Though many interests could be enumerated,let me just tick.off a few that standout for Statesin the ATCP group. Crimmrntarses 31

First, strategical!y,a stableAntarctic Treaty regime is wanted to ensurethe continued right of transoceanictransit through the Drake Passage,the main sea- laneseparating Terra del Fuegofrom the Antarctic Peninsula.Certainly, this am- bition would rank high for the United States, particularly in the event the Panama Canal someday were closed to shipping, for one reason or another. Second, for severalStates namely, the Soviet Union andJapan, but also Poland, WestGer- many,Chile and Norway securing accessto krill looms largeas a nationalpriori- ty. Non-Jiving mineral resourcesfigure no less Mlient. For States such as the United States,Japan, West Germany and the United Kingdom, there exists the.aspira- tion to preserve, as a policy option, maintenanceof legally-secureaccess to hypotheticalAntarctic mineraland petroleumresources, should deposits ever prove geologicallyextant in commercially recoverablequantities. Exploitation oppor- tunities are not the questionhere but rather retaining legally unfettered access to possibleresource locations.A third obvious national objective shared by all ATCPs is the international scientific researchand cooperationthat is promoted by the treaty. Likewise, as aforementioned,a fourth national interest earmark- ing the ATCP relationship is the fact that the region is effectively demilitarized, which thereby contributes to world stability. International military friction has been preempted in the Antarctic through the treaty's prohibitions in Article 1 against,"inter alia, any measuresof a militarynature, such as the establishment af military basesand fortifications, the carrying out of military maneuvers,as well as the testing of any type of weapons."Still a fifth set of national interests relates to geopolitical anxieties,especially those felt by I.atin American States These states, in particular Argentina, see their exposed southern flanks as vulnerable to attacks from Antarctica. In fact, the continent has been depicted by Argentinian geopoliticians as a dagger pointed up at their country's soft underbeHy.For Argentina expressly, but also for Chile and Brazil, security ap- prehensionsin the region makeparticipation in the AntarcticTreaty systemhighly preferable to no system at all.

COMMON HERITAGE CONCERNS

In concludingher paper,Barbara Mitchell makes the statementthat, "...Pjt would be wiser for everyoneto approach[the mineralsregime negotiationst from a different direction, recognizingthe interestsof the wider community basisfor operations." I certainly must concur that these ends are wholly desirable and necessaryfor the creation of a permanentstable mineral regime in the region. However,if one takesthis positionto its ideologicalextreme and inferentially construesit to mean that the Antarctic ought to be declaredpart of the "Com- roon Heritageof Mankind" CHM!associated with the Groupof 77 and their aspira- tion of a New International EconomicOrder, I wouM havesome grave reserva- tions.In fairnessto Barbara Mitchell, I do not meanto imply that she advocates this outcome in her paper, She does not. Even so, transformation of the Antarc- tic into a CHM regimeundoubtedly would have powerful ideological appealto the majority of States in the United Nations and, theoretically, it would offer greatereconomic equity and more universalparticipation in decidingAntarctica's future. Yet, the upshotof sucha jurisdictionalmaneuver conceivably would drive 32 Antarctic Treaty System

out the developed ATCPs from the regime and into a more vehemently nationalistic, covetousmind-set. Surely, this reaction would be likely for the clairn- ant States, and perhaps,siinilarly, it would hold true as well for the United States and the Soviet Union, who thus far have refrained froin formally staking claims in the Antarctic but reserve the legal right to do so.

THE NEED FOR NEW MANAGEMENT

Near her paper'send, Barbara Mitchell assertsthat, "Although Antarctica is subject to national claims and a scientific researchagreement, if there ever was an area that was intrinsically international and needed a genuinely international systein of management,this must be it," In principle, I einphatically agree with her point. Antarctica is a unique piece of the global environment that should be carefully husbanded, prudently managed, and strictly protected for the benefit and enjoymentof future generations,In that respect,the Antarctic indeedinculcates a vital facet of the earth's heritage for all mankind, My misgiving with her asser- tion rests in the means used to achieve this end. How should this truly international common spacearea be governed such that its resourcesare most effectively con- served and best protected? I am not at all sure that the General Assembly forum today provides the best managerial vehicle to perform that conservation role, I would have lessobjection to a trusteeshiparrangement wherein Antarctica might be declareda world park and placedthereafter under the U.N. TrusteeshipCouncil mechanisin with apt consultative party representation for supervision. Even so, such an arrangement finds scant support from the seven ATCPs who espouse territorial sector claims to portions of the continent. For the foreseeablefuture, the Antarctic Treaty Systein doesfurnish a regulatorymechanism devised by those Stateshaving the greatesthistorical experience in the regionfor strictly managing activities that, most likely, would be undertaken by their own corporate nationals. Despiteits deficiencies,that arrangement seemsto rue in ore preferable than a majoritariansystem governed by 160states, of which 125have no perti- nent interests in or historical concernswith the region and whose.recent voting preference in the United Nations appearsto be determined more by political and ideological sway than by considerations of legitimacy or environmental preservation. Having said this, let me plainly state that my personal preference for the Ant- arctic is the option that no commercial development especially the extraction varieties ever occur there at all, That inay be only a naive hope on my part, but such a moratorium ostensibly would prechde pillaging and denigrating Ant- arctica's natural ecosystem,irrespective of whether the noblecause is that of global socialism to attain a "New International Economic Order" or private, free enter- prise to promote worldwide capitalism. LOOKING TOWARD THE FUTURE

At thisjuncture, I wouldlike to engagein somerational speculation, prompted by both speakers" presentations,about the future course of Antarctic-related matters.Over the next five to ten years, it seemsreasonable to forecastthat the ATCPs will persist in working together to preservethe sametreaty systemthat hasevolved since 1959.The ATCPs probablywill negotiatesuccessfully and open for signaturean Antarctic minerals regimeagreement by 1987,This notwithstand- ing, there appearslittle, if any, chanceof resourcedevelopment inshore, onshore, or offshore Antarctica before the end of the century. lt is possible that the Antarctic Treaty System may be pointedly attacked in the United Nations, I do not foresee,however, the promulgation in the near term of any new U.N. convention dealing with Antarcttc resourceregulation or an imposedmoratorium. But, even if one were to be promulgated,it would not likely enter into force with any political efficacy.Only a modicumof impact could reside in such a multilateral accord absentthe cooperation and technology of developedStates, and they alreadyhave their own treaty regime.IVloreover, clearly it would be difficult to producea viable new Antarctic regime without the major industrial powers and prominent political leaders of the Third World, and that describesprecisely the composition situation with the presentAntarctic Treaty: The Soviet Union, Argentina, Chile, India, and Brazil already hoM consultative party status,and the PeoplesRepublic of China is presumedtobe an ATCP can- didate in the not-so-distant future, Also important to realizeis that the dangeradmittedly exists that the present treaty systemactually could self-destruct,lf requestedby any consultativeparty, under Article Xll, paragraph2, a review conferencecould be convenedas early as 1991. Despite popular confusion over this point, the treaty neither expires in 1991nor is the reviewconference mandatory. The sessionwill conveneonly should any ATCP formally proffer sucha request.!The possibility doesexist that a review conferencemight provoke sufficient discord and political dissentionamong the ATCPs that the current treaty regime could collapse. Perhapssomewhat unfair- ly, the recent admissionof India and Brazil into consultative party status has arousedsuspicion among political observersthat either or both of theseStates might resort to the review conferenceopportunity as a tactic ostensibly aimed at bringing down, or at least incapacitating,the Antarctic Treaty System'sopera- tion!. Regardless of the way events unfold, national interest considerations will remain paramountfor the ATCPs. By this l do not meanto suggestthat a review conferencenecessarily will unravel the treaty system.I merely want to note the possibility it could happen. As a final observation,let me reiterate that my personalprerogative is for the Antarctic Treaty System to function with environmental preservation,protection, snd conservationas its preeminentobjectives, I would hope, therefore, that the continent and its circumpolar marine environs never would be opened up for commercialexploitation, irrespectt've of what kind of mineral regimeis created.The lessonsof SantaBarbara, the Torrey Canyort,the Amoco Cadizand perhapsmore glaringly, the Bay of Campeche all graphically intimate that the possibility of ec~tastrophe actually existsfor the Antarctic.The magnitudeand 34 Antarefx' 7rra

HarlSOtt: I would like to give the panel members a chanceto comment to one anotherbefore we openit up for questionsor commentsfrom the fioor. M/tchell: I have four commentsto make in responseto Tucker Scully's paper and the two commentarieswe have just heard. During the break, I had various commentson my presentation.One personcalted me a "utopian"and another called me a "pessimist."Absurd' What am I? I think there is a very big danger in talking about the Antarctic Treaty Systemas a constantly,liInitlessly evolving system.As Tucker Scully said, it is a limited purpose agreement that was how it originated.It is rather an elusive system,but what has happenedis that various new instrumentshave been added on to the original treaty. But until now they have not teally dealt with anything terribly different from scientific research. Resourcemanagement is completely different. ] think one must beware of being overly optimistic about the treaty evolving to deal with this. It has evolved so far, but can it go one Many people refer to the treaty as being dynamic, and I think one of the reasonsit is dynamic ts that the treaty itselfsays so little. Article IV, the jurisdictionalartie}e, does not solvethe territorial disputes.No bureaucracy is set up, institutional arrangementsare kept to a minimum, and there are no rules and regulations.It is, therefore, very easy for an arrangement like that to be dynamic. It ties nothing down at all. But none of this means that it is going to be able to deal with the questionof resourcemanagement, On the same point, I think Tucker Scully describedthe philosophyunderlying the Antarctic Treaty as the gradualistapproach, as though this had been evolvedvery deliberately but this was in fact the only approachpossible. We must not elevate the Antarctic Treaty System, if you want to call it a system,to anything more than it is which is really a series of ad hoc arrangements.And again, becauseof this we do not have any guarantee that it will extend into the field or resourcemanagement, Secon.dly,l would like to respond to Bi!l Mansfield's comment. He insists it will be possibleto apply the treaty approachto the questionof resourcemama ment, simply becauseit has to be done. I am not sure one can always apply that argument something will be done becauseit has to be done'tThere have been many exampleswhere that has fallen flat. You could also turn the statementon its head and say, "it will be possible to solve the territorial claims becausethey have to be settled." I am personally not reassuredby what you have said that it will be possibleto build a safe resourcemanagement framework on the basis of jurisdictional ambiguity. A third point about common heritage: I certainly do not think that the Ant- arctic shouldbe settled in the General Assemblyby 160nations. 125, or however many it is.,of which have no direct interest in Antarctica. I think another form of negotiationis necessary,I do not think that Antarcticashould be declaredcom- rnon heritage. It is a very different situation from the seabed beyond national jurisdiction. We have got to look for a compromise. 36 Atitarctt'c Treaty System Finally, thequestion of the treatyopen ing up. I amvery glad to seethat ac- cedingStates are being invited to themeetings, but theyare only being granted anobserver role, They cannot participate in decisionmaking and thereis a big groupof countries that will notwant to join the treaty under those terms. Many developingcountries would not want to betied down by thcresponsibilities and obligationsprovided for in the treatyif theydo not haveany guid pro otto,ao l donot think theywill wantto join underthose terms, Those are the four points l wanted to make, Ham~; Anyone else a the table|' Scull>:I will commentprimarily on Barbara Mitchell's points, First, I thinkI woulddisagree with, at leastfind certain inconsistency in arguing. that on the onehand. the Antarctic Treaty insofaras it has goneas a limited purposeagree- rnenthas done a numberof wonderful things and then at the sametime argue thatthat haa really been predicated u ponad hoc and sort of an almostaccidental result of agreementsamon.g countries that werc seekinga least common denotnittatorapproach, I just do not think that follows.I think that the agreement in 1959and the way the systemhas functioned sincethen has in fact been a productof someinnovative and imaginativeapproaches to multilateral diplomacy.It is myopinion that it is a limitedpurpose agreement and sought in 1959to deal with the things that neededto be dealt with in t959. It doesnot in my viewdiscredit or in fact invalidatean assumptionthat the sameapproach offersthe basisfor dealingwith new issuesas and whenthey arise.In fact, it givesme some- confidence particularly when I lookat the international landscape andat other effortsthat havebeen going on in theseareas. It gives me somecon- fidencethat in factthe systemwill succeed.There is l think a sortof a "If it ain't broke,don't fix it" kind of attitudeone can take.My first point would be that I think there is somewhatof an inconsistencyin Barbara'spoints about the ad- vantagesof the treatyas a limited purposeagreement and then to belittle the wayin whichit hasfunctioned. It seemsto me that oneis reversingthe cart and horseby sayingthat, "I don't believethe resourceissues can be dealtwith and, therefore,the systemhas been one that cannot deal with them." I ~ould also like to addressthe questionof jurisdictional ambiguity. This is aninteresting term with a varietyof meanings.In onesense, I think it hasbeen usedto mean irresolution or lack of resolution of the territorial claims issue thereis not internationalagreement as to whetherthere are claims, whether such claims are valid, or whether there are no claims. I quite agree with that point, bu it is quiteanother thing to extendthat to jurisdictionover activities. One can createa jurisdictionalbasis for regulatingactivities on a variety of foundations. Thequestion that seems to bethat Barbara has raised with regardto jurisdictionalambiguity is to saybecause there is a disagreementover sovereignty, because sovereigntyrelates to resources,there cannot be a soundbasis for regulating resourcesuntil one decideswho owns or does not own the area. I do not think that follows, and I think one can look at that from thc point of view of what may be the alternatives,One alternative,it seemsto me, would be to resolvethe issue in favorof sovereignty, to simplyrecognise claims, Now that could deal with arn- biguityin a certainsense in thatone would be simply agreeing that certain individual countrieswho could then provide for a managerto run the area.That Disc Uss>ori 37 may or may not be good for the environment in terms of establishinga rational resourcemanagement system, but one would resolvethe ambiguity in that sense. Once, however,it secms to me, one is lookingat a compositemanage ment system which involves multilateral management in some fashion and international managementin some fashion, one has exactly the same problem. How then, if one establishes that the basis is a condominium or whatever, does one translate that into the detailed control of the activities. One could, l assume,write a detailed mining code with absolutecompleteness of what might happen in Antarctica, and how each of those might be regulated, enforced, etc. One could make it a simply and almost an automatic system.I think we would all agreethat that is not a possibility,So it seemsto me that what it comesdown to is a decision-makingsystem. How are decisionsto be made about the activities; againstwhat criteria; how are the decisionsto be enforced;and, how are disputes to be dealt with about thosedecisions' Now that is just as much an issueif one has a clear basis for determining who owns or who doesnot own the area as if one does not. The real issueis how does the decision-makingsystem operate; how can the participants in the decision-makingsystem protect their interests;do they feel they can protect their interests;and, what kinds of standardsagainst what kinds of criteria are those decisions made? That it seems to me is the real issue in seek- ing to developresource management arrangements which I would note hasalready beendone with regardto living resources.That to me is more the issuethan determining ownership.1 think even if one were to determine ownership one would be faced with exactly the same kinds of issues.Unless one can write a detailed code which will put us all in the position of being crystal ball gazers and an- ticipating exactly what will happen in the 21stcentury, then I think the problem Barbara raises is, in fact, the problem that anyone would face in trying to write a framework agreementcapable of dealing with new activities in the future and ensuringthat thoseactivities take place in a peaceful manner that will not provoke conflict and will take place in a manner that will become consistent with protection of the Antarctic environment. l do not think that those issues relate to the questionof sovereigntyand jurisdictional ambiguity in that sense. Maosf!eld: l will be very short. l remain an optimist, Barbara, and the reason for it is that, if the consequencesof failure are as l believe them to be, I think there is a great incentive for the political will to be presentto reach agreement. l, like Tucker, also want to comment on this idea, which I think is a f'allacy,that you have to settle the legal statusbefore you can work out an effective regime. Tucker has dealt with this point in some detail. My point is that you do not have to go beyond the area of bilateral relations to find illustrations.We have many areas now where there are bilateral disputesbetween States as to the extent of their jurisdiction, most notably in the maritime area in a number of cases The way this situation is resolvedis to say, "well there is an area out there, the legal statusof which we don't agreeabout, but let's put a managementregime in place." lt is simply untrue to say that you have to settle a firm legal basis for an area before you decide on an effective and detailed managementsystem for it, As to the membershipquestion, Barbara suggeststhat a number of developing countriesare not willing to join the treaty on the presentbasis, l would hope Art tsrctx Treety System that, as the treaty evolves and develops and as the information Aow continues, all the countries which are not currently party to it will see that it does serve the purposesof the United Nations and their own interestsas well and will join the treaty, Hagsoa: Thank you. Habet: l would Hke to make a commentwith regard to the inability of the resolution of a resourceregime without the resolution of sovereignty. Even though the ftsberies resource is mobile, if you look throughout the nations of the world in their own particular territories, you will find that that is considered just as fixed a resourcewithin their jurisdiction as the others. So 1 think CCAMLR is a good exampleof fixinga resotsrcemanagement regime without resolving the sovereignty question. gehgtedt: 1 would like to make a clarification, that both Barbara and Tucker touched on, regarding scientific research data as contrasted with proprietary ineral resource data, 1 would also like to mention the difference between pro- prietaryminerals resource data and on,-siteinspections of mineral resourcesac- tivities. 1 think the.difference between the two types of data are basically whether theyare public or not, at least in the preliminary stagesof resource investigation. The actual data collection might be quite similar in the analysis and the inter- pretationof the data.and 1 think that was one point where Tucker and Barbara both agreed on the necessity for these data to be released under the Antarctic Treaty.But the on-site inspection which Barbara indicatedmight be a difficulty in a mineral resource activity. l would assume that any regime that would be developedwould be sitnilar to those in. existence and the various countries that are regulatingoffshore petroleum activities now, Certainly in the United States, inspection takes place continuously either daily or weekly on all activities that are carried out and I would presume that this would also take place in Antarc- tica.This would not violateany proprietarydata that might be related to the activity; an inspector would not necessarily see the proprietary data to decide that safe conditions exist.ed. Gteee. I has been reported that New Zealand has offered China a choiceof sites in Newi~~d's claimedterritory andthat, aspart of anyagreement, China would haveto acknowledgeNew Zealand'sspes:ial rights in the area as a claimant State. Wouldthis not be an exampleof' how thedevelopment of a mineralsregime might be encouragingthe claimant States to assertmore vigorously their sovereignty claims' Maalf held: Mayl comsnent?That newspaperreport is factually inaccurate.My understandingis that the governmentof China did ask the New Zealand govern- rnentfor someadvice and assistanceas to suitable locationsfor their prospective basesin Antarctica.They were given assistancein the true spirit of the Antarctic Treaty.That is the factual situation. There is the possibility that if China,or in- deedother countries,wishes to stagethrough New Zealandon route to Antarc- ticathat that stagingcan be the.subject of a separateagreement between the two countries. We have such an agreement with the United States, and we have a similaragreement with the Federal Republicof Germany.lt is entirely possible that other countries couM haveagreements with us of a similar kind relating to staging through New Zealand, 86ttiI1: l havean observation,perhaps a questionfor Barbara.I think that perhaps the fundamentalquestion that I did not hear you addressthat basic to any kind of an arrangementbetween countries a treaty or what you will, is the question: Does this involvement increasethe potential and the possibility of dispute between countriesor indeedconflict betweencountries? I think that this is the key question.Collaterally to that, that support that is still an integral part of' it is this: Going Tucker's route, so to speak,what is the likelihood of protecting our interestsin freedom of scientific research,in the freedom of navigation, and protection of the environment? Is it better to take that route for those uses of the sea,or is your route better? l am not sure that I heard any discussionof those and I think they are quite important. Mitchell: If you are lookingfor the arrangementthat decreasesthe possibility of conflict and the potential for dispute betweencountries, you must bear in mind that the An arcticTreaty, andany arrangementthat is drawn up under its auspices, does leave this territorial dispute hanging, And it leavesit in such a way that real conflict could break out at sometime in the future. I am constantly remind- ed of the Argentine/U.K, War over the Falklands/Malvinas,and you must bear this in mind whenever you look at the future arrangementsfor the area. ScuHy: I would like to makeone comment on Burt Brittin's comment and then on Barbara's response.As a preamble to that, l might add one point to Bill Mansfield'scomment on theChina question. We in fact havean agreementwith New Zealand,as Bill mentioned.and that agreementis pertinentin termsof staging throughChristchurch in NewZealand. It hasbeen an extremely product ive agreement for both sides,and it doesnot in any wayimpinge upon or involve the ques. tions of sovereignty.It is a bilateral agreementand does not affect in any way New Zealand'sview of Article IV or the U.S. view of Article IV. It is a very practical and cooperativearrangement. I would notealso that the governmentof China aswell asother governmentsincluding India and Brazil! hasalso been in touch with us in terms of seekingadvice on how to conductscientific ~~arch activities in Antarctica.I think it is in fact part of the spirit in which the Antarctic Treaty operates.That is, when there is in fact a demonstrationof interest,there is I think probably the most effective form of cooperationthat I have seen in almost any international system both on a formal and informal basis. I want to make a point about the sort of guillotine that is hanging over the consultativeparties of the international cornrnunityof the unresolvedterritorial conflict. Peoplekeep citing the Malvinas or I guess I should say Falklands, FalklandsIMalvinas.I would like to notethat at theheight of that crisis,during thetime of physicalhostilities and open warfarein the SouthAtlantic, there were two things that occurred with relation to the Antarctic Treaty that struck me. First of all, noneof that conflictextended south of Latitude00 S wherein many instances,as I understandit, wouldhave been to thestrategic advantage of either or both combatantsto do so.Secondly, during the sameperiod when diplotnatic rebttionsshall we saywere at a ratherlow ebb betweenArgentina and the United Kingdom,a sessionof the specialconsultative meeting on Antarctic mineral gg Antarcttc Treaty Syst«m resourcestook placein New Zealand,a countrywhich for reasonsof its old school tie had also broken relations with Argentina. At this meeting, both Argentina and the UnitedKingdom participated.They were ableto work together in probably their only form of contact whatsoeverduring this period and were able to dp soin a way that wasboth constructiveand positivetoward the endsthat were beingsought on the discussions.I think a cleanand practicalexample is to look at the questionof how the Antarctic Treaty System deals with the questionof territorial sovereignty and whether or not it deals with it in a way that prevents conflict or plants the seed for future conflict. @owe:I wouldlike to pick up on a pointrelated to theconcept or notionof jurisdic- ttonal atnbiguity. Tucker Scully and Bill Mansfield both commented on it. It is an idea that I think is extraordinarily misleading. Tucker Scully has given a very eloquentexplanation of why he feelsit is misleadingand I do not disagreewith anythinghe said. Let me make perfectlyclear that, from the Australian govern. ment's point of view, there is not a hint of ambiguity about who owns the Australian Antarctic sector. By the same token, I presume there is no ambiguity on the part of those who do not acknowledge the existence of claims in their at- titude of who owns the Australian Antarctic territory. The point is, of course, that there is not a greatdeal of atnbiguity at all. It is a clear,simple, and I might saya veryinventive formulation which hasformed the basison which Antarctica cooperation has taken place since the treaty come into force. To suggest the existenceof claims as the source of future instability, it seemsto me, to be an asser- tion without foundation. Thus far cooperation has taken place in the Antarctic with the existence of claims, Both claimants and non-claimants we know have worked cooperatively in the Antarctic and the issue of claims has not been a problem. Another point that was made was in reference to the increasing international interest in Antarctica, and I think that is true There has been increased international interests Last year, when Malaysia was joined by Antigua/Barbuda co- sponsoring requests for inscription, the increase in the number of card-carrying opponentsto the treaty increased to 100percent. There are not two cardwarrying opponents to the system. The increasing interest in the treaty has also been manifested by the fact that a number of countries joined the treaty over the last l8 months. And I would like to make another point regarding the criticism that is often tnade about the treaty being a two-tiered system. Somehow it is discriminatory, but that is a criticism that is made most frequently and mast ardently by those who are members of the treaty. It is not a criticistrt that is made by those acceding Statesnor consultativeparties. It is usually worked within the Antarctic Treaty System.The last point I would make is that, if people have demonstrated interest in the Antarctic, carne join the Antarctic Treaty. Neishyba: I do not think that the point of view of the conservationistshas been expressedadequately. A secondpoint is ane which perhapsthe Law of the Sea peoplecan answer, A rtation under the exclusive economic zone idea must develop the resources,say the Iiv}ng resources,or face the potential of having those resourceslicensed to another nation. My question is, how does this impact reform the resolution af the offshore territorial sector idea of the treaty' Jogttet". A couple of commentsabout that. First, the Antarctic,as I havetr~ed to indicate in my remarks, is a unique environment. One has to take a look at only the virgin,unadulterated landscape to seethat it is pristine,and it wouM be.a tragedyto seeit oil-infested.The environmentalists,to a greatextent, wouM prefer to seeno minerals agreementr onsummated,because if you have a regime in hand,you therefore are goingto invite somesort of development,People I havetalked to alongthese lines haveindicated that, if thereis no mineralsregime, there will be no cause for commercial developmentbecause incentive will not be thereto go downto license,If you havea regime,then you have some place to gofor licensingarrangements, and inevitablythat will openup the Antarctic to develop.In termsof conservation,my impressionis right now that thereis no incentivein the commercialsectors to go to Antarcticabecause onshore resources elsewhere in the world are sufficient to meet world demand. The oil glut todayand hard mineral supplies are adequatefrom other portions of the world, so it is not worth the money, the time, and the logistical problemsthat wouM be encounteredin getting resourcesout of Antarctica, if indeed they do exist. The pointyou raisedabout the Law of the Sea and exclusiveeconomic zone is a conferenceunto itself, But it is important to realize that so longas the so