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Soviet Attitude Towards the Acquisition of Territorial Sovereignty in the Antarctic*

Published online by Cambridge University Press:  28 March 2017

Peter A. Toma
Peter A. Toma*
Affiliation:
Institute of Slavic Studies, University of California at Los Angeles
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Extract

The Antarctic Continent, with its wind- and snow-swept islands, appears at first sight an uninviting prize for international competition. Yet in the past fifty years, and notably after the second World War, claims and counterclaims to sovereignty over these bleak lands have been numerous. In a chronological order Soviet Bussia is considered to be the most recent among the rivals.

Type
Research Article
Information
American Journal of International Law , Volume 50 , Issue 3 , July 1956 , pp. 611 - 626
Copyright
Copyright © American Society of International Law 1956

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Footnotes

*

This paper is based on work done under a special study in the Department of Political Science of the University of California at Los Angeles. The author is greatly indebted to Professor Robert G. Neumann for his comments on earlier drafts of the present article.

The materials on which this study is based may be divided into three groups: (1) Soviet documents; (2) works of Soviet authorities on the problem; and (3) information found in Soviet technical publications. Translations, both in the text and in the appended documents, intentionally have been made to follow the original as closely as possible, even to sentence structure, despite the frequently obscure phraseology.

References

1 By unilateral acts in 1908 and 1917 Britain handed a section of Antarctica below the tip of South America to the Falkland Islands, her colony. Part of the same territory, however, was also claimed by Argentina in 1925 and by Chile in 1940. In 1923 Britain handed New Zealand “Ross Colony,” i.e., that part of Antarctica situated near this British Dominion. The administration of the section of the Antarctic opposite Tasmania and further westward, including Enderby Land, was handed over to Australia in 1933. In 1924 and again in 1938 France declared Adélie Land to be “under French sovereignty.” In 1931 and 1939 Norway declared that she considered Peter I Island to be her own, and made it part of her territory situated between the British (Falkland) and Australian sectors of the Antarctic. Russian, Swedish, Belgian, German and Japanese explorers made particular discoveries in the area, but none of these discoveries is believed to have been followed either by annexation or by claims of title on the part of the governments concerned. In 1924 the United States Government officially stated that, while it does not recognize the claims of any other country in the Antarctic, it does not put forward any of its own.

2 The Soviet Union has shown persistent concern for the Antarctic only since 1946, when she signed the International “Whaling Convention and sent whaling flotillas into the South Seas.

3 Akademiya Nauk, S.S.S.R., Institut Prava (Academy of Sciences of the U.S.S.R., Institute of Law), Mezhdunarodnoe Pravo (International Law) 260–266 (Moscow: Gosudarstvennoe Izdatel'stvo Yuridieheskoi Literatury, 1951)Google Scholar.

4 Molodtsov, S. V., Sovremennoe Mezhdunarodno-Pravovoe Polozhenie Antarktiki (Contemporary International Legal Status of the Antarctic) 43 (Moscow: Gosyurizdat, 1954)Google Scholar.

5 Ibid. 45.

6 See Soviet Memorandum of June 7, 1950; English translation in Appendix I below, p. 624.

7 Molodtsov, op. eit. 46 (italics supplied) ; cf. also B. Leontyev, “Vopros o Rezhime Antarktiki” (On the Question of the Regime of the Antarctic), Pravda, July 20, 1950, p. 4.

8 The resolution, adopted on Feb. 10, 1949, by the plenary session of the U.S.S.R. Geographical Society at Leningrad, requested the Soviet Government “to inform foreign states concerning the Soviet rights and interests in the Antarctic.” (Pravda and Izvestia, Feb. 11, 1949, p. 3.) Soviet writers such as Molodtsov, Kostritsin, and Durdenevsky seem to regard the resolution as a direct forerunner of the formal Memorandum, and thus attach greater significance to it.

9 See the Resolution of the U.S.S.R. Geographical Society of Feb. 10, 1949, printed in Golubev, D., Russkie v Antarktike (Russians in the Antarctic) 68–69 (Moscow: Goskul'-tprosvetizdat, 1949, italics supplied)Google Scholar; English translation in Appendix II below, p. 625.

10 Lakhtine, W., “Rights Over the Arctic,” 24 A.J.I.L. 717 (1930)Google Scholar.

11 The eight countries included the United States, Britain, France, Norway, Australia, New Zealand, Argentina and Chile.

12 Kostritsin, B. V., “Vopros o Rezhime Antarktiki” (On the Question of the Regime of the Antarctic), Sovetskoe Gosudarstvo i Pravo, No. 3 (March, 1951), p. 42 Google Scholar. For a review of the article see Kulski, W. W., “Soviet Comments on International Law,” 45 A.J.I.L. 766–769 (1951)Google Scholar.

13 Loc. cit. 42.

14 See the Soviet Memorandum of June 7, 1950 (italics supplied); of. also Molodtsov, op. cit. 47.

15 Molodtsov, ibid.

16 Ibid. 43; see also Kostritsin, loc. cit. 42.

17 Ibid.; cf. Kostritsin, loc. cit. 38.

18 1 Moore, , Digest of International Law 248 (Washington, D. C: Govt. Printing Office, 1905)Google Scholar. “It follows from the fact of continuity of state life that all rights and title to property belonging to a state continue to vest in it regardless of changes in its government … the rights of a sovereign state are vested in a state rather than in any particular government which may purport to represent it … ” (See Guarantee Trust Co. v. U. S., 304 U. S. 126, 137 (1938); cf. 1 Hackworth, , Digest of International Law 387 (Washington, D. C: Govt. Printing Office, 1940)Google Scholar.

19 Kozhevnikov, F. I., Sovetskoe Gosudarstvo i Mezhdunarodnoe Pravo (The Soviet State and International Law) 32–50, 250 (Moscow: Yuridicheskoe Izdatel'stvo Ministerstva Tustitsii S.S.S.R., 1948)Google Scholar.

20 Institut Prava Akademii Nauk S.S.S.R., Mezhdunarodnoe Pravo (International Law) 153–156 (Moscow: Yuridicheskoe Izdatel'stvo Ministerstva Yustitsii S.S.S.R., 1947)Google Scholar; Mezhdunarodnoe Pravo 211–213 (1951). Cf. also Lissitzyn, O. J., “Recent Soviet Literature on International Law,” 11 American Slavic and East European Review 268 (1952)CrossRefGoogle Scholar.

21 Harvard Research Draft Convention on the Law of Treaties, 29 A.J.I.L. Supp. 1052 (1935)Google Scholar.

22 See the Act of Jan. 28, 1918, R.S.F.S.R. Laws 1917–1918, text 353, and the Decree of Oct. 28, 1917, ibid,., text 2. Cf. Gsovski, V., Soviet Civil Law, Vol. I, p. 309 ff. (Ann Arbor: University of Michigan Law School, 1948)Google Scholar.

23 Korovin, E. A., “Soviet Treaties and International Law,” 22 A.J.I.L. 763 (1928)Google Scholar.

24 Harvard Research, loc. cit. 1053–1054.

25 Ibid. 1119.

26 Ibid.

27 For further details on this issue see ibid. 1119 ff., concluding: “The principle is well established that one party to a treaty does not have the right to terminate its treaty obligations unilaterally merely upon the grounds that it believes that the doctrine rebus sic stantibus is applicable to the treaty.” (Loc. cit. 1124.)

28 Taracouzio, T. A., The Soviet Union and International Law 21 (New York: Macmillan Co., 1935)Google Scholar.

29 “Russkie Otkryli Antarktiku” (Russians Discovered the Antarctic), Komsomolskaya Pravda, Jan. 28, 1950, p. 4.

30 See Keller, A. S., Lissitzyn, O. J. and Mann, P. J., Creation of Rights of Sovereignty Through Symbolic Acts, 1400–1800 (New York: Columbia University Press, 1938), p. 148 Google Scholar.

31 von der Heydte, F. A., “Discovery, Symbolic Acquisition and Virtual Effectiveness in International Law,” 29 A.J.I.L. 448 ff. (1935)Google Scholar; see also Mezhdunarodnoe Pravo 260–262 (1951).

32 Von der Heydte, loc. cit. 452–462.

33 G. Smedal, for instance, rejects the principle of inchoate title entirely. See his Acquisition of Sovereignty Over Polar Areas, p. 52 (Oslo: Dybwad, 1931)Google Scholar. Cf. also 1 Hackworth 399, and Waldock, C. H. M., “Disputed Sovereignty in the Falkland Islands Dependencies,” 25 British Year Book of International Law 350–352 (1948)Google Scholar.

34 Fauchille, Paul, Traité de Droit International Public, Vol. 1, Pt. 2, pp. 720–721 (Paris: A. Rousseau and Co., 1925)Google Scholar.

35 Kalesnik, S., “Russkie Otkrytie v Antarktike” (Russian Discoveries in the Antarctic), Slavyanye, No. 4 (April, 1949), p. 22 Google Scholar; see also the Resolution of the U.S.S.R. Geographical Society of Feb. 10, 1949, in Appendix II below, p. 625.

36 This doctrine has been.supported especially by Anglo-Saxon jurists, e.g., R. Philli-more, J. B. Moore, J. B. Scott, J. Westlake, W. E. Hall, L. Oppenheim; and by Ch. De Visscher.

37 Molodtsov, op. cit. 31; see also Mezhdunarodnoe Pravo 262 (1951).

38 Op. cit. 30.

39 Ibid. 31. As attested by Molodtsov. Hall and Gidel are supposed to share the same view.

40 Ibid. 31.

41 [1931], P.C.I.J., Ser. A/B, No. 53, pp. 45–46; cf. Von der Heydte, loc. cit. 464.

42 P.C.I.J., op. cit. 46, 63.

43 Ibid. 52.

44 Ibid. 45–46.

45 Molodtsov, op. cit. 31–32; cf. also Lakhtine, W., 24 A.J.I.L. 704–705 (1930)Google Scholar.

46 Op. cit. 34.

47 Ibid. (italics supplied).

48 Ibid. 34–35.

49 E. A. Korovin, “Problema Vozdushnoi Okkupatsii v Sviazi s Pravom na Polyarnye Prostranstva” (Problems of Aerial Occupation in Connection with Rights in the Polar Regions), Vopr. Vozd. Prava, Vol. I, pp. 108–109; quoted in Taracouzio, T. A., Soviets in the Arctic 340–341 (New York: Macmillan Co., 1938)Google Scholar (italics supplied).

50 W. Lakhtine, “Bor’ba za Arktiku” (Battle for the Arctic), Vozdushnye Puti Severa, pp. 124–126; quoted in Taracouzio, op. cit. 342 (italics supplied).

51 Molodtsov, op. cit. 31.

52 Mezhdunarodnoe Pravo 269 (1951); cf. also the Decree of April 15, 1926, quoted in Taracouzio, op. cit. 320.

53 Durdenevsky, V., “Problema Pravovogo Rezhima Pripolyarnykh Oblastei” (The Problem of the Legal Status in the Polar Regions), Vestnik Moskovskogo Universiteta, No. 7 (July, 1950), pp. 111–114 Google Scholar; quoted in Molodtsov, op. cit. 36.

54 Breitfus, L., “O Razgranichenii Sevemoi Polyarnoi Oblasti” (The Demarcation of the Northern Polar Region), Morskoi Sbornik, No. 1 (1927), pp. 9–11 Google Scholar.

55 Molodtsov, op. cit. 36–37.

56 See the Arbitral Award pertaining to the sovereignty over Palmas Island: “The title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law.” 22 A.J.I.L. 910 (1928)Google Scholar; Briggs, H. W., The Law of Nations 244 (New York: Appleton-Century-Crofts, Inc., 1952)Google Scholar.

57 Lakhtine, W., Prava na Severnye Polyarnye Prostranstva (Rights Over the Northern Polar Regions) 42 (Moscow, 1928)Google Scholar, quoted in Taracouzio, Soviets in the Arctic 323.

58 E. A. Korovin, Vopr. Vozd. Prava 109 ff.; cf. also Lakhtine, Prava na Severnye Polyarnye Prostranstva 29.

59 Durdenevsky, loc cit. (note 53) 112; cf. also Pravda, Feb. 11, 1949, p. 3; Kostritsin, loc. cit. (note 12) 40; and N. Danilov, “Ekspeditsia v Antarktiku” (Expedition to the Antarctic), Sovetskaya Kul'tura, Nov. 12, 1955, p. 4.

60 Mezhdunarodnoe Pravo 269 (1951); cf. also Durdenevsky, loc. cit. 111.

61 For the meaning of “all countries concerned” see supra, p. 612.

62 Durdenevsky, loc. cit. (note 53) 113 (italics supplied).

63 Molodtsov, op. cit. 40.

64 Ibid. 41.

65 According to J. Daniel, “arbitration or judgment by the International Court, would provide an answer to the problem of conflicting Antarctic claims…. Failing agreement over sovereignty, most practical questions could be dealt with by a treaty covering: (a) A guarantee of private property in the Antarctic, and freedom of fishing, prospecting, and the like, therein to all nationals, provided international conventions are respected … (b) Freedom of exploration and scientific research … (c) Demilitarization of the continent and its adjacent waters … (d) Establishment of a Permanent International Commission to solve … any practical problems arising in connection with Antarctica.” (“Conflict of Sovereignties in the Antarctic,” Year Book of World Affairs 270–271 (1949).)

66 According to Professor Jessup, “it is possible that the matter could be adjusted by a conference such as that which produced the Berlin Act of 1885 concerning Africa. On the other hand it would facilitate the work of such a conference if there were first a decision by the International Court of Justice regarding the applicable law.” (“Sovereignty in Antarctica,” 41 A.J.I.L. 119 (1947)Google Scholar.)

67 There is no evidence suggesting that Fauchille had ever used the term “condominium plural.” In his Traité de Droit International Public (see note 34 above, p. 616) he refers to three terms, which seem to be identical in meaning: “co-propriété,” “condominium” and “eo-imperium.” It is true, however, that Fauchille employs the term “condominium” in two different contexts: In Vol. I, Pt. 1, he describes “condominium” as a joint rule over a no-man's-land by two sovereign powers (pp. 684–685) ; while in Vol. 1, Pt. 2, “condominium” means the joint rule by three sovereign powers (pp. 747–750). It is therefore possible that S. V. Molodtsov interprets Fauchille's theory of “condominium” as “condominium plural”—the word “plural” designating more than two sovereign Powers ruling over terra nullius.

68 Molodtsov, op. cit. 43; cf. also Mikhailov, S., “Imperialisticheskaya Bor’ba za Antarktiku” (Imperialist Struggle for the Antarctic), Voprosy Ekonomiky, No. 10 (Oct. 29, 1949), pp. 66–73 Google Scholar.

69 For Durdenevsky's explanation see above, p. 621; cf. note 66 for Jessup's proposal.

70 It is interesting to note that until April, 1949, when a symposium devoted to the first Russian Antarctic expedition of Bellingshausen and Lazarev was established at Leningrad, the Soviets had maintained that the discovery of Alexander I Land by this expedition in January, 1821, was also the discovery of the Antarctic Continent. However, on March 31, 1949, Professor A. I. Andreyev of the History Commission of the U.S.S.R. Academy of Sciences told a TASS correspondent that “it has now been established that this [discovery] took place in January, 1820.” (Pravda, April 1, 1949, p. 4.)

71 Taracouzio, The Soviet Union and International Law 12; for the most recent definition of international law—“a complex of rules which regulate the relations among states, which states uphold, which develop through the process of international cooperation or struggle among states, and which serve the material and spiritual [sic!] needs of the states, in the interest of the respective classes ruling in these states”—see Korovin, E. A., “Nekotorye Osnovnye “Voprosy Sovremennoi Teorii Mezhdunarodnogo Prava” (Some Basic Problems in the Contemporary Theory of International Law), Sovetskoe Gosudarstvo i Pravo, No. 6 (October, 1954), p. 42 Google Scholar, reviewed by Kulski, W. W., “The Soviet Interpretation of International Law,” 49 A.J.I.L. 518–521 (1955)Google Scholar. Cf. also Ya. Vyshinskii, A., “Mezhdunarodnoe Pravo i Mezhdunarodnaya Organizatsia” (International Law and International Organization), Sovetskoe Gosudarstvo i Pravo, No. 1 (1948), p. 22 Google Scholar; Mezhdunarodnoe Pravo 5 (1951); and Lissitzyn, O. J., “Recent Soviet Literature on International Law,” 11 American Slavic and East European Review 258 ff. (1952)CrossRefGoogle Scholar.