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Some Notes on the Future of the Antarctic Treaty Collaboration

Published online by Cambridge University Press:  28 March 2017

Edvard Hambro
Edvard Hambro*
Affiliation:
International organizations in Geneva, Member of the International Law Commission
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Extract

The Antarctic continent played no important part in international politics or international law before the present century,1 but scientific interest has been sustained for a much longer period. Shortly before and particularly during World War II, the strategic importance of the territory was recognized and the race to acquire new territory and to secure positions reached a new dimension of importance and urgency. The first important claim was made by Great Britain in 1908 and the last by Norway in 1939.2 Subsequent to that time several incidents have occurred, and many efforts have been made to find a reasonable solution for some of the problems of the Antarctic

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 2 , April 1974 , pp. 217 - 226
Copyright
Copyright © American Society of International Law 1974

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References

1 The bibliography is growing all the time, learned periodicals bringing new articles every year. The United Nations compiled a selected bibliography in 1956, but it is not in printed form. In 1959, Robert D. Hayton compiled an annotated bibliography, National Interest in Antarctica for the U.S. Antarctic Projects Officer, for the U.S. Antarctic Project Officer which was published by the U.S. Government Printing Office.

See Smedal, Gusta, Acquisition of Sovereignty Over Polar Areas (1931)Google Scholar; Leyser, Johannes, Antarktis, in 1 Strupp-Schlochauer, Wörterbuch des Völkerrechts 71 (1960)Google Scholar; Jessup, P. C. and Taubenfeld, H., Controls of Outer Space and the Antarctic Analogy (1959)Google Scholar; 2 Whiteman, , Digest of International Law 1232 (1963)Google Scholar. Among the most recent publications are: Auburn, F. M., A Sometime World of Men: Legal Rights in the Ross Dependency, 65 AJIL 578 (1971)CrossRefGoogle Scholar; Battaglini, Giovanni, La Condizione dell’antartice nel Diritto Internazionale (1971)Google Scholar;

van der Essen, Ph., L’Economie des Régions polaires: Réalisations et Perspectices, 24 Chronique de Politique Etrangere 391–545 (1972)Google Scholar. See also Hanessian, John, The Antarctic Treaty, 1959, 9 Int. & Comp. L. Q. 436 (1960)CrossRefGoogle Scholar; Hayton, , The Antarctic Settlement of 1959, 54 AJIL 348 (1960)CrossRefGoogle Scholar; Sollis, Finn, The Political Experiment in Antarctica, 26 Bull, of Atomic Scientists 16 Google Scholar.

2 A clear and concise statement can be found in 1 O’Connell, , International Law 450–53 (2d ed. 1970)Google Scholar.

3 The prehistory of the treaty will not be treated in this article; it is ably dealt with by Hanessian, supra note 1.

4 Whtteman (supra note 1, at 1238) quotes the following statement issued by the United Kingdom Foreign Office on January 18, 1949:

Being anxious to avoid any misunderstanding in Antarctica which might affect the friendly relations between the United Kingdom, Argentina and Chile, the Governments of these three countries have informed each other that, in present circumstances, they foresee no need to send warships south of latitude 60 degrees during the 1948–49 Antarctic season, apart, of course, from routine movements such as have been customary for a number of years.

5 In February 1953, the British Government destroyed buildings that had been erected in the Falkland Islands by Argentina and Chile, expelled two nationals of Argentina found on the scene, and protested to Argentina and Chile for an alleged infringement of the sovereignty of Great Britain. Argentina and Chile responded by laying claim to the territory. See Whiteman, supra note 1, at 1238–39, 511 H. C. Deb. (5th ser.) cols. 1729–30 (Feb. 23, 1953). See also Keesing’s Contemporary Archives 1952/54 at 12891 and 32 Foreign Affairs 661 (1954).

6 The Indian Delegation raised the matter in 1956, but did not press it to a debate in the General Assembly. The explanatory memorandum of India stated in part:

Modern science is likely to reveal many possibilities for the peaceful utilization of a region hitherto regarded as unproductive. At the same time the influence of Antarctica on climatic and related conditions throughout the world, while obviously considerable, requires further study. Any disturbance of the equilibrium of natural forces in this area might lead to incalculable consequences for the world as a whole involving the deterioration of the conditions fop human and other forms of animal and plant life. In view of these facts and bearing in mind the size of the area, its international importance and the growing interest in it, the Government of India considers that in order to strengthen universal peace it would be appropriate and timely for all nations to agree and to affirm that the area will be utilized entirely for peaceful purposes and for the general welfare. All nations should agree further to harmonize their actions to these ends and to ensure also that no activities in Antarctica will adversely affect climatic and other natural conditions.

7 Antarctica Cases, United Kingdom v. Argentina and United Kingdom v. Chile. Order of March 16, 1956. The case was removed from the list. 1956 ICJ Reports, at 12.

8 Whiteman (supra note 1, at 1239) quoting 551 H. C. deb. (4th ser.) col. 1761 (Apr. 25, 1956).

9 A similar influence was at work in connection with the promotion of the human environment. See Hambro, E., The Human Environment, Stockholm and After, Y. B. of World Affairs (1973)Google Scholar.

10 TIAS 4780; 12 UST 794; 402 UNTS 71; 54 AJIL 477 (1960). The contracting states are Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, Soviet Union, United Kingdom, and United States.

11 Accession is provided for in Article XIII. Thus far the following states have acceded: Czechoslovakia, Denmark, Poland, Romania, and The Netherlands.

12 Article IV of the treaty states:

1. Nothing contained in the present Treaty shall be interpreted as:

(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica;

(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica or otherwise;

(c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica.

2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.

13 Argentina, Australia, Chile, France, New Zealand, Norway, and United Kingdom.

14 Auburn (supra note 1, at 578) claims that New Zealand and the United States in fact exercise a condominium over the Ross Dependency and that this factual situation could be changed into a legal condominium without hindrance of the Antarctic Treaty.

15 See e.g., the numerous quotations from the jurisprudence of the PCIJ in Hambro, E., The Interpretation of the Charter, 23 Brit. Y. B. Int. L. 54 at 67 (1946)Google Scholar.

16 Article IX states:

1. Representatives of the Contracting Parties named in the preamble to the present Treaty shall meet at the City of Canberra within two months after the date of entry into force of the Treaty, and thereafter at suitable intervals and places, for the purpose of exchanging information, consulting together on matters of common interest pertaining to Antarctica, and formulating and considering, and recommending to their Governments, measures in furtherance of the principles and objectives of the Treaty, including measures regarding:

(a) use of Antarctica for peaceful purposes only;

(b) facilitation of scientific research in Antarctica;

(c) facilitation of international scientific cooperation in Antarctica;

(d) facilitation of the exercise of the rights of inspection provided for in Article VII of the Treat

(e) questions relating to the exercise of jurisdiction in Antarctica;

(f) preservation and conservation of living resources in Antarctica.

2. Each Contracting Party which has become a party to the present Treaty by accession under Article XIII shall be entitled to appoint representatives to participate in the meetings referred to in paragraph 1 of the present Article, during such time as that Contracting Party demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the establishment of a scientific station or the despatch of a scientific expedition.

3. Reports from the observers referred to in Article VII of the present Treaty shall be transmitted to the representatives of the Contracting Parties participating in the meeting referred to in paragraph 1 of the present Article.

4. The measures referred to in paragraph 1 of this Article shall become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures.

17 There have been recommendations on this subject throughout almost all Meetings, starting with Rec. I-1 and ending with VI-6.

18 Starting with Rec. I-7 and ending with VII-8.

19 Starting with Rec. I-8 and ending with VI-9.

20 Starting with Rec. I-9 and ending with the comprehensive list in VII-9.

21 Every Meeting starting with Rec. I-11 and ending with VII-7.

22 Rec. I-12.

23 Rec. III-2.

24 Rec. III-l.

25 Rec. IV-2 and VII-2.

26 Rec. VI-16 and 17.

27 Rec. VI-4 and VII-1.

28 Rec. I-14.

29 Rec. VII-6. Antarctic Resources—Effects of Mineral Exploration

The Representatives,

Recalling the provisions and principles of the Antarctic Treaty;

Reaffirming that it is in the interest of all mankind that the Antarctic Treaty

Area shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord;

Acknowledging that the Antarctic Treaty places a special responsibility upon the Contracting Parties to exert appropriate efforts, consistent with the Charter of the United Nations, to the end that no one engages in any activity in the Antarctic Treaty Area contrary to the principles or purposes of the Treaty;

Noting the technological developments in polar mineral exploration and the increasing interest in the possibility of there being exploitable minerals in the Antarctic Treaty Area;

Noting that there is a need for further study and deliberation amongst the Consultative Parties;

Recognising that mineral exploration is likely to raise problems of an environmental nature and that the Consultative Parties should assume responsibility for the protection of the environment and the wise use of resources;

Conscious of the special situation in the Antarctic arising from the particular regime of the Antarctic Treaty and the Recommendations adopted under it;

Recommend to their Governments that the subject “Antarctic Resources—Effects of Mineral Exploration” be carefully studied and included on the Agenda of the Eighth Consultative Meeting.

32 See supra, note 16.

33 An interesting example is Martin v. Commissioner of Internal Revenue, 50 T.C. No. 9 (Tax Court of the United States, Apr. 15, 1968), digested in 63 AJIL 141 (1969).

34 See PCIJ Ser. A/B. No. 53. Judgment of Apr. 5, 1933.

35 See Jessup and Taubenfeld, supra note 1, at 34 ff. See also Ingo von Münch, Spitzbergen, 3 Strupp-Schlochauer, supra note 1, at 300 (1962). And concerning the unsuccessful attempt before World War I to create a true international administration for this island group, see 1 Hackworth, , Digest of International Law 466 (1940)Google Scholar, and Lansing, , A Unique International Problem, 11 AJIL 764 (1917)CrossRefGoogle Scholar.

36 GATT furnishes a good example of this general tendency as expressed in the French proverb: II n’y que le provisoire qui dure.

37 See Auburn, supra note 1.

38 See Jessup and Taubenfeld, supra note 1, at 1; 1 Oppenheim, , International Law 453 (8th ed., Lauterpacht, 1955)Google Scholar; Peter Schneider, Condominium, 1 Strupp-Schlochauer, supra note 1, at 297.

39 It would not be indiscreet to mention that Brazil has shown an interest which has disquieted some other Latin American states.

40 See e.g., Jessup and Taubenfeld, supra note 1, at 180.

41 See Battaglini, supra note 1, at 379.

42 See also the Continental Shelf case. 1969 ICJ Reports, at 31.

43 15 UST 471; TIAS 5578; 499 UNTS 311; 52 AJIL 858 (1958).

44 Supra note 31.