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The Antarctic Treaty System from the Perspective of a Non-Consullative Party to the Antarctic Treaty Peter Bruckner INTRODUCTION According to the provisions of Article XIII(1), the Antarctic Treaty shall be open for accession by any stat that is a member of the U.N. or by any other state that may be invited to accede to the treaty with the consent of all the contracting parties whose representatives are entitled to participate in the meetings provided for under Article IX of the treaty, the so-called consulta- tive parties (CPs). The Antarctic Treaty, signed on December 1, 1959, by the 12 participants in the International Geophysical Year (IGY): Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the USSR, the United Kingdom and the U.S. of America, entered into force on June 23, 1961, when it was ratified by all 12 signatories. The following states have subsequently acceded to the treaty at the times indicated: Poland Czechoslovakia Denmark The Netherlands Romania German Democratic Republic Brazil Bulgaria Federal Republic of Germany Uruguay Italy Papua New Guinea Peru 315 e June 1961 June 1962 May 1965 March 1967 September 1971 November 1974 May 1975 September 1978 February 1979 January 1980 March 1981 March 1981 April 1981
316 Spain People's Republic of China India Hungary Sweden Finland Cuba March 1982 June 1983 August 1983 January 1984 April 1984 May 1984 August 1984 According to the treaty, these states are also contract- ing parties; they are subject to the same general obligations and enjoy the same general rights under the treaty as the original participants. However, the original twelve states enjoy a special status under the treaty. They are born members of the consultative meetings provided for under Article IX of the treaty. Any acceding state may--pursuant to Article IX(2)--be entitled to appoint representatives to the meetings 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 dispatch of a scientific expedition. The following acceding states have been recognized as CPs: Poland (1977), the Federal Republic of Germany (1981), and Brazil and India (1983). The purpose of this chapter is to present the outlook of an acceding state--a nonconsultative party (Ncp)--on the Antarctic Treaty System. This system is now composed of the 1959 Antarctic Treaty, the 1972 Convention for the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources and the nongovernmental Scientific Committee on Antarctic Research (SCAR). The system also covers all the recommen- dations approved by the CPs. This chapter will focus mainly on the Antarctic Treaty and will essentially be based on the history of Denmark 'S participation in the treaty since 1965. The opinions expressed are the personal views of the author and do not necessarily represent those of his government. Furthermore, this discussion does not purport to reflect the views of other acceding states, except where official statements have provided a sufficient basis for expressing more generalized NCP opinions. In this respect, the report that the U.N. Secretary-General was requested to submit to the 39th U.N. General Assembly would have constituted a valuable source of updated
317 information on other NCP views. However, this material was not available at the time of drafting the manuscript. MOTIVES FOR ACCESSION Several factors influenced the Danish decision on acces- sion to the Antarctic Treaty. Danish scientists partici- pated in research activities, together with colleagues from other nonsignatory countries, during the IGY. Scien- tific experience from Greenland--the polar regions of the Kingdom of Denmark--undoubtedly influenced the scientific interest in Antarctica. Danish scientific circles strongly supported the principles of the treaty, in particular the principle of free scientific research. In 1952 the vessel Kista Dan of the Danish company J. Lauritzen made a voyage to Antarctica, thereby starting an annual series of calls that the company's ships have since maintained.] The treaty provides that the contracting parties inform one another of certain activities, such as shipping related to expeditions to and within Antarctica. Diffi- culties concerning the implementation of these obligations were eventually overcome. The fact that NCPs had no influence on recommendations adopted at consultative meetings also sparked certain hesitations. In this respect, however, it was argued that the recommendations would not become binding on any country unless that country had given its express consent. An essential factor in the Danish decision-making process was general interest in supporting a treaty in which East and West had been able to join in cooperation based on laudable principles.2 In retrospect, the Danish expectations have not been disappointed. In its contribution to the study of the U.N. Secretary-General made pursuant to Resolution 38/77 of December 15, 1983, the Danish government stated, inter alla: For more than 20 years the 1959 Antarctic Treaty has provided a legal regime in Antarctica which has removed the potential for disputes relating to the exercise of sovereignty and guaranteed peace and stability in the region. In the view of the Government of Denmark it is of particular importance that the Treaty prohibits any military use of the region and guarantees its
318 status as a nuclear weapons free area. Further- more, the Treaty has provided an exemplary framework for free scientific research and has created the basis for an extensive international cooperation to protect the extremely fragile ecosystem of Antarctica. There is a comprehensive system of on-site inspection, with observers being guaranteed complete freedom of access at any time to any and all areas of Antarctica. The Scientific Committee on Antarctic Research (SCAR) also forms part of the system and has served to initiate, promote and coordinate scientific activities in Antarctica. The Antarctic Treaty has so far proved its value for the benefit and interest of mankind as a whole. It has set an example of international cooperation which has succeeded according to its purpose. FUNCTIONING OF TEE TREATY SYSTEM As a general rule the treaty system has functioned smoothly in practice, seen from a Danish point of view. One of the important aspects has been information on developments within the system. Article III provides that in order to promote international cooperation in scientific investigation in Antarctica the contracting parties-shall--to the greatest extent feasible and practicable--exchange information regarding plans for scientific programs and scientific observations and results from Antarctica. The information received ex officio from contracting states, whether CPs or NCPS, through the official channels has not been abundant. The official documentation received deals essentially with plans and programs in scientific research activities rather than with the results thereof. However, it is our impression that interested parties, scientists, etc. have been able to obtain all the scientific material that they need through other channels. In this respect, the international cooperation within SCAR plays a significant role. SCAR is open to all countries actively engaged in antarctic research, to scientists appointed by the International Council of Scientific Unions (ICSU), of which SCAR is a component, and to each of the ICSU-federated international scien- tific unions. Canada, which is not a contracting party,
319 took part in working groups and groups of specialists in 1982 and 1983. Thus, SCAR seems to serve admirably the principle of freedom of scientific research, in particular of making the results thereof freely available to inter- ested parties. The increasing interest in and concern about all activities in Antarctica have prompted certain questions that have been difficult to answer. In 1983, the Danish Parliamentary Committee on Foreign Affairs asked certain questions relating to seismic investigations by Japan, Norway, and the United States in Antarctica, to the French airstrip proposal for Pointe Geologie, and to the environmental impact of bases in Antarctica. At the time, the Danish authorities were not able to offer entirely satisfactory replies.3 The question is whether the provisions of Articles III and VII(5) of the treaty are sufficiently wide to guaran- tee the availability of all relevant information on activities in the Antarctic. The current interest and concern seem in particular to focus on environmental issues. The treaty system does not seem to contain instruments likely to ensure satisfactory responses to such concerns. NCPs receive no official reports on the deliberations during the meetings of CPs. Until fairly recently the texts of the recommendations have been difficult to obtain. After the eighth consultative meeting, in Oslo in 1975, a collection of recommendations was issued. In conjunction with the tenth consultative meeting, in Washington in 1979, the U.S. Department of State brought out a Handbook of Measures in Furtherance of the Principles and Objectives of the Antarctic Treaty. During the twelfth consultative meeting, the informa- tion system was further improved. The Handbook of the Antarctic Treaty (renamed) is now to include final reports of consultative meetings. The NCPs also benefit from these information measures. Furthermore, an NCP should, as an observer, be entitled to make use of the new rules concerning public availability of its own documentation and that of other NCPs and CPs. Inspection is an area that involves a certain dis- crimination of NCPs and gives rise--at least in theory-- to some particular legal problems. Pursuant to Article VII(1), only CPs are entitled to designate observers to carry out inspection. Observers must be nationals of the CPs that designate them. All areas of Antarctica, including all ships at points of discharging or embarking
320 cargoes or personnel in Antarctica, are to be open at all time to inspection by any observer. I: practice, few inspections of any sort are conducted. In principle, ships of an NCP state may be inspected only by CP obser- vers. As the rule is drafted, NCPs are not entitled to conduct inspection, not even of their own ships. A related problem, which has so far remained fairly theoretical, is that of jurisdiction. This issue, which is intimately connected with the delicate problem of sovereignty, was not properly solved at the Washington conference in 1959.5 Article VIII of the treaty provides that scientists and officially designated observers, as well as their staffs, remain under the jurisdiction of the countries of which they are nationals, regardless of where they may be in Antarctica. This rule applies to all contracting parties. However, it does not apply, for instance, to the members of the crew of the ship carrying a scientific expedition to Antarctica. Furthermore, what would be the legal situation in the case in which a Danish sailor were arrested in the Antarctic Peninsula, where jurisdiction is contested. In theory, at least, he might be subject to Argentine, British, and Chilean law--but perhaps, according to the treaty, not to Danish law. This situation, however, is not peculiar to NCP citizens; it may arise also with regard to CP nationals other than scientists and observers.6 RIGHTS AND OBLIGATIONS OF NCPS UNDER THE TREATY As stated in the Introduction, the term "contracting states" also covers NCPs. In principle, CPs and NCPs as contracting parties enjoy the same rights and are subject to the same obligations under the Treaty. However, in many respects the treaty has established a two-tiered system of participation. Certain aspects of the differ- ential system of rights and obligations under Article VII in regard to inspection have already been dealt with above. CPs also enjoy a privileged status under Article XII concerning amendments and pursuant to Article XIII(1) concerning accession. By far the most important example of "privileged status" is the fact that the day-to-day management of the treaty system has been entrusted to the CPs. Until 1983, NCPs were not even consulted.
321 Article IX provides that the CPs meet periodically to exchange information, to consult together on matters of common interest pertaining to Antarctica, and to formu- late, consider, and recommend to their governments measures in furtherance of the principles and objectives of the treaty. Among the categories of measures speci- fically mentioned are those relating to questions of facilitating scientific research and international scientific cooperation, to the exercise of the rights of inspection and jurisdiction, and to the preservation and conservation of living resources in Antarctica. Any such measures recommended by the representatives of CP meetings to their governments become effective when approved by all of the consultative parties. So far 138 recommendations have been adopted and more than 130 approved. NCPs have had no opportunity to influ- ence the drafting of these recommendations. Conversely, the recommendations are not legally binding on NCPs unless expressly approved by them. In view of this situation, in which different treaty parties might be bound by different sets of rules, the CPs in 1975, in Recommendation VIII-8, urged n the States that have or will become Parties to the Antarctic Treaty to approve the recommendations adopted at consultative meetings." In 1977 the final report of the special CP meeting emphasized that CPs might urge a state that con- sidered itself entitled to CP status to make a declaration of intent to approve the recommendations in force and might also invite such a potential CP to consider approval of the other recommendations.7 Certain issues have been made subject to separate agreements negotiated under the authority of the treaty: the 1972 Convention for the Conservation of Antarctic Seals (Seals Convention) and the 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR). The Seals Convention is open for accession by states invited with the consent of all parties. The CCAMLR is open for accession by states interested in research or harvesting activities related to antarctic marine living resources and to certain regional economic integration organizations (such as the European Economic Community). Last but not least, the ongoing negotiations on the future minerals regime of Antarctica have so far been reserved to the CPs. These features, in particular, must have been in the minds of the critics of the Antarctic Treaty System during
322 the 38th U.N. General Assembly debate, where terms such as "exclusivity of the treaty system, Enhancement of interests of the privileged fewer and the "secrecy" of the meetings were frequently used. One way of attempting to remedy this ~exclusivity" and "secrecy" might be to modify the criterion for qualifying as a CP. As noted above, Article IX(2) provides that each contracting party that has acceded to the treaty be entitled to participate in the consultative meetings during such time as that contracting party "demonstrates its interest in Antarctica by conducting substantial scientific research activity there, such as the estab- lishment of a scientific station or the dispatch of a scientific expedition. n A recommendation adopted during the special consultative meeting in July 1977 contains the procedures giving effect to Article IX(2) (see Appendix 22-A.): Firstly, the criterion of Article IX(2) only applies to acceding States, not to signatories. Secondly, it may be asked whether the criterion is reasonable measured by a yardstick of the 1980s. As stated by gilder, "This differential status [of CPs and NCPs] is ostensibly related to a rational and 'neutral' criterion--demonstrated interest in Antarctica, and any Party may in theory obtain consultative status by engaging in 'substantial' activities in Antarctica. In practice, however, many nations may not have sufficient wealth or technical skill to mount and support such activities. n8 Assuming that all interested nations possess the necessary wealth and skill, it may even be questioned whether the present criterion for qualifying as a CP is likely to enhance--in a longer-term pers~ective--the objectives and principles of the treaty. Indeed, in a statement made by Lee Kimball on September 24, 1984, before the subcommittee on Science, Technology and Space of the U.S. Senate Committee on Commerce, Science and Transportation, it is said, inter alla: As long as the ticket to antarctic decision- making remains something on the order of the establishment of a scientific station or the dispatch of a scientific expedition to Antarctica, we can expect additional strains on the antarctic
323 environment and its pristine value as more coun- tries seek to meet this qualification. Growing - tourism and fishing efforts will increase conges- tion and the potential for accidents in the area. Kimball adds that the onslaught of antarctic minerals development and supporting operations would add a whole new dimension to the possibility of accidents and cumulative environmental impacts in Antarctica. Translated into the present context, an admission ticket based on performance criteria might in certain respects lead to situations that would raise serious objections on environmental grounds. In a reply to a question put by the Parliamentary Committee on Foreign Relations of Denmark in February 1984, the Danish foreign minister stated, inter alla, that it would be appropriate first to assess how the newly established observer arrangement for NCPS is functioning in practice before considering any attempt to seek a modification of the criteria for qualifying as a CP. Furthermore, it was stated that in view of the unanimous opposition by CPs to amendment of the treaty, any attempts in this regard would be counterproductive. On the other hand, it must be recognized that the minerals issue gives rise to specific considerations. Luard observes that the treaty powers must recognize that the situation today is by no means the same as it was 25 years ago: "A Treaty that functioned well when its main purpose was to provide for a system of peaceful and cooperative scientific research will not necessarily work well for the quite different purpose of establishing a viable minerals regime. nlO Among the three broad measures discussed by Luard as the means for fulfilling certain basic conditions, the first is to maintain the existing treaty system and establish a new minerals regime within it. 1 This appears to be a reasonable approach. Indeed, it seems necessary to make a proper distinc- tion among separate issues: participation in the Antarctic Treaty and in the regular CP meetings; participation in the negotiations on the minerals regime; and the question of participation in decision-making under the future minerals regime. There is no apparent need to change the rules on participation in the regular and special CP meetings-- that is, to modify the criteria for qualifying as a CP--in order to meet the increasing concern regarding
324 participation in the minerals regime. This problem should, in any case, be solved within the minerals regime itself. It should, however, be ensured that all legiti- mately interested states may participate in the negotia- tions leading to this regime. An effective regime t arts 1; ~ = ~ ~ ~ ~ ~ w _ _ . -__ "~= Hen oy a large majority of the world community. Otherwise, those outside the regime could quite legally undertake mining activities. The increasing interest in these negotiations in particular, and in the management of the Antarctic in general, should and could be met--at least as a first step--by an appropriate observer-status arrangement in the regular and special consultative meetings (see below). Attempting to modify the criteria for qualifying as a CP at this stage may be tantamount to opening the whole Antarctic Treaty for revision with the inherent risk of prejudicing the basic principles of the treaty and present international cooperation on antarctic issues. There is no reason to destroy the successful features of the Antarctic Treaty in order to find a satisfactory solution to the novel problems concerning a future minerals regime. The CCAMLR, which was negotiated under the provisions of the Antarctic Treaty, has in fact established its own participation rules which differ from those of the Antarctic Treaty. Membership in the convention is open to states--or competent regional organizations-- interested in research or harvesting activities related to antarctic marine living resources. Participation in decision-making meetings in the commission established by the convention is open to all original signatories that are parties and to acceding parties during such time as they are engaged in antarctic living-resources research or harvesting.l2 The convention has also established its own observer regime. Mentioning CCAMLR as a precedent does not necessarily mean that it is a perfect one in all respects. Criticisms have been voiced on two important points in particular. First, it has been questioned on what grounds the CPs felt entitled to negotiate in secret a treaty regarding high seas resources and then to present the document to the rest of the world to endorse a fait accompli. Second, the criteria for accession and for participation by acceding states in the decision-making do not apply to the signatories. Even if some of these do not carry out any fishing activities in antarctic waters, they remain permanent members of the decision-making commission.
325 Furthermore, the relationship of the CCAMLR to the Antarctic Treaty, which specifically includes the high seas, and to the International Whaling Commission and the Seals Convention has also been criticized.] A minerals regime will be far more difficult to negotiate than the regime on the living resources. It is to be hoped that the lessons from the CCAMLR will be kept in mind during the continuing minerals negotiations. THE OBSERVER ISSUE The Antarctic Treaty contains no provisions concerning observers. As far as can be ascertained, the subject was not even discussed at the Washington conference. This may in part be explained by the fact that the treaty does not establish any separate international organization nor for that matter any kind of permanent secretariat. The observer issue was discussed among the CPs in 1981 without success. A consensus was reached in the spring of 1983, perhaps as a first reaction to emerging inter- national criticism of the secluded character of the Antarctic Treaty System. During the 37th U.N. General Assembly, the Prime Minister of Malaysia in his speech on September 29, 1982, argued for U.N. action on Antarctica. The Malaysian statement during the signing ceremony of the Law of the Sea Convention at Montego Bay in December 1982 echoed the same theme. At their seventh summit conference in New Delhi, March 7-12, 1983, the heads of state of the nonaligned countries considered that in view of the increasing international interest in the Antarctic, the U.N. should undertake a comprehensive study of the subject. At the preparatory meeting for the twelfth CP meeting, in April 1983, the CPs decided to invite the NCPs to attend the twelfth biennial CP meeting, in Canberra in September 1983, as observers. All NCPs--except Czecho- slovakia--were represented at the meeting in Canberra. In their opening statements the CPs welcomed the NCPS, which in turn expressed their appreciation for the invitation. The new observers were confronted with certain diffi- culties that made their first attendance somewhat cumber- some. They lacked background information from the preparatory meeting. Moreover, the fact that the session was divided into open plenary meetings, closed meetings of heads of CP delegations, and working groups made it difficult to follow the course of the deliberations.
326 On request to the chairman, the NCP observers obtained admission to the working group on environmental questions. In practice, observers were not able to participate in a major part of the final discussions, which took place in closed meetings of heads of CP delegations. Statements by observers were not allowed during the plenary debate on the final report nor during the discussions on pro- cedures relating to the negotiation of the minerals regime. Observers could speak on the question of rules of procedures concerning their status, but the actual negotiations on this issue were conducted in closed meetings. The CPs accepted the inclusion in the final report of a formal statement made in common by the NCPs (See Appendix 22-B). In this statement, the NCPs noted with satisfaction that the CPs were receptive to more meaning- ful and substantive participation by the NCPs, which would undoubtedly contribute to strengthening the system. They also stressed the need for prior background informa- tion, which would facilitate their participation in the various antarctic meetings. As far as is known, the draft rules of procedure on observers considered by the CPs in Canberra provide that observers may speak freely, receive documentation, submit information documents, and attend all plenary and formal committee and working group meetings. They may not take part in decision-making.14 The CP meeting in Canberra decided to invite the NCPs as observers to their-next meeting, in Brussels in 1985, and to the preceding preparatory meeting. It was also agreed to consider, on a case-by-case basis, inviting as observers at future CP meetings representatives of inter- national organizations having a scientific or technical interest in Antarctica. During the special consultative meeting on the minerals regime in Tokyo in May 1984, the NCPS were kept informed at regular intervals. It was decided to invite NCPs as observers to future meetings on this theme. Their status will be the same as that enjoyed in the regular CP meetings. Some CPs include nongovernmental organization repre- sentatives in their delegations to CP meetings. In regular meetings, the United States has followed this practice since 1977; Australia did so for the first time in 1983. In special meetings on the minerals regime, the United States has done it since 1982, Australia since 1983, and New Zealand since 1984. The Danish observer
327 delegation to the minerals regime meeting in Rio de Janeiro in February-March 1985 included a representative from a nongovernmental organization. ANTARCTICA AND THE U . N. . GENERAL ASSEMBLY The inclusion of the question of Antarctica on the agenda of the U.N. General Assembly was viewed with much sympathy by the Danish government. In its reply to the U.N. Secretary-General's note verbale made pursuant to Resolution 38/77, it was stated that the Danish government--recognizing the legitimate interest of the world community--was prepared to support the efforts aiming at introducing greater openness in the international cooperation concerning Antarctica, provided that neither the basic principles of the Treaty nor the positive results of the present international cooperation are jeopardized. The Danish government furthermore recalled that the Antarctic Treaty is in conformity with the principles and purposes of the U.N. Charter and that it is open for accession by all members of the United Nations. In the view of the Danish government, the international cooperation concerning the Antarctic should be pursued within the framework of the treaty. However, accession to the Treaty becomes meaningful only if the acceding parties are entitled to participate in the international antarctic cooperation in a manner which corresponds to the obligations they have undertaken according to the Treaty. The Danish government therefore welcomed the invita- tions to participate as observers in the future regular CP meetings and in the special consultative meetings on the minerals regime. Finally the hope was expressed that these moves may lead to a generally acceptable permanent arrangement which will ensure that NCPS may participate fully and effectively in the entire range of international cooperation and management concerning the Antarctic. Progress in this
328 direction will doubtless serve to rally the ample support for the Treaty which appears imperative in order to preserve it as the international framework for cooperation in Antarctica for the benefit and interest of mankind as a whole. CONCLUDING REMARKS The final words of the Danish contribution to the U.N. study reflect what others have more elegantly labeled "external accommodations or "accountability": "It is up to those who would prefer to build on the Antarctic Treaty system to determine how far they are willing to go in the area of accountability in lieu of being confronted by major institutional changes. nl5 The major--but not the only--challenge to the treaty system is the minerals issue. Whether in the light of these challenges the new observer arrangement will serve the purpose of increased accountability remains to be seen. The comment has been made that since decisions in CP meetings are determined not by voting but rather by discussion and consultation leading to consensus, the influence of NCP observers on the decision-making process need not be far different from that of the CPs.l6 This, of course, is to be hoped. However, if owing to such increased incentives the total membership of the Antarctic Treaty is substantially increased, the current management mechanisms may need to be further developed. Holding meetings among representatives of 20 or 30 coun- tries is one thing; organizing meetings of representatives from 60 countries or more is a more complex task. The question of the establishment of a more permanent infra- structure should therefore be considered an urgent matter.17 Together with the other NCPs, Denmark will be prepared to contribute as constructively as possible to the devel- opment of international cooperation under the treaty system. Denmark and the two other Nordic NCP countries, Finland and Sweden, all have polar regions and a long- standing interest mainly in the Arctic region. Denmark has a long experience in the area of exploration and exploitation of minerals in polar regions (Greenland). Although this experience cannot, of course, be applied automatically to all aspects of similar issues in Antarctica, it may prove to be of some value, for
329 instance, for comparative purposes. One aspect that most certainly will be strongly emphasized is the need for strict safeguards aimed at protection of the sensitive antarctic environment. In this regard the words from the Swedish contribution to the study of the U.N. Secretary- General seem particularly pertinent: In view of the great importance of Antarctica to global climate and oceanic conditions in general it is clear that disturbances in the antarctic environment can have consequences that are both unpredictable and hazardous. These important problems have to be confronted with great seriousness and full openness. In elaborating on his written presentation, Bruckner - noted that it is difficult to identify any objective criteria used for the determination of CP status and wondered whether the qualification cited in Article IX(2) of the Antarctic Treaty is reasonable today. Moreover, it might even be discriminatory, since not all states can afford scientific expeditions. He noted that Denmark has a history of demonstrated interest in Antarctica by virtue of its involvement in ship transport, construction work, and scientific research there, but the first two types of activity do not seem to be considered in the determination of CP status. Bruckner added that if CP status were to be relevant to the minerals regime, any of three changes in that status could make it more acceptable to those outside: modify the criteria, interpret them more flexibly or reduce the differences between CP and NCP status. He did not see the need to modify the criteria at this time, but he could envisage the second or third options or a com- bination of the two. In this context, he noted that the Antarctic Treaty in effect forces countries to allocate scarce funds for scientific research in a manner that is not necessarily rational. He suggested that it would make sense for a number of countries to pool resources for antarctic science and spread the costs out over several years. The question that remained, however, was whether at the end of that period the contribution of each country would be considered sufficient for each to qualify for consultative status. On the other hand, if the difference between CP and NCP status disappeared, this would reduce the pressure on governments to engage in questionable scientific activities.
330 With respect to the observer role of the nonconsulta- tive states in antarctic meetings, Bruckner noted that "participation short of the right to take part in decision-making" is not a fixed concept. Whatever rules of procedure had been adopted in Canberra in September 1983 to govern NCP participation had not been conveyed to Denmark and to other NCPS by January 1985. In his view, the effect of NCP participation should be to allow the NCPs to exercise reasonable influence on decisions, to allow them to be heard and have their views taken into account, and to allow them to submit their views orally and in writing, whether as proposals or suggestions. He also believed that it would be useful if "heads-of- delegation meetings could include representatives from both consultative and nonconsultative states. In the end, he believed that the role of observers in practice will depend on the quality and constructive nature of their contributions rather than on the application to the letter of the observer rules of participation. In conclusion, he noted that in addition to the development of the role of nonconsultative states as a means to increase support for the Antarctic Treaty System, it will be important to increase the flow of information on antarctic affairs and make it more easily accessible, to consider the contributions that members of the U.N. family--such as the U.N. Environment Program-- could make to the system, and to develop means to take account of the views of the concerned public. NOTES The J. Lauritzen polar vessels have throughout the years carried Australian, French, British, Belgian, and Dutch scientific expeditions and their supplies to the antarctic continent and returned with parties who had wintered there; see Thorsoe, S. 1984. J. Lauritzen 1884-1984. World Ship Society, 1984. Approximately 25 localities in the Antarctic have been named after J. Lauritzen ships or members of their crews. The Danish company A. E. Sorensen has also carried expeditions to Antarctica. The German subsidiary company of Christiani & Nielsen has carried out construction and other work in connection with the establishment of the scientific station and other activities of the Federal Republic of Germany.
331 2. See Frivagten, November, 1965. 3. A similar situation arose in the Belgian parliament. See question No. 413 from Mr. Daras of April 20, 1984 (Brussels). 4. See The Future of the Antarctic - Background for a Second U.N. Debate. Greenpeace International, October 22, 1984, p. 8. 5. See Quigg, P.W. 1983. A Pole Apart. The Emerging Issue of Antarctica, New Press, McGraw-Hill Book Company (New York); 1983, p. 150. 6. Quigg, op. cit., p. 151. 7. Quigg, op. cit., p. 152. Denmark has not officially approved any CP recommendation. 8. See gilder, R.B. 1982. The Present Legal and Political Situation in Antarctica. In J.I. Charney, ed. The New Nationalism and the Use of Common Spaces. Allanheld, Osmun (Totowa, N.J.), 1982, p. 173. Belgium and Norway maintain no permanent scientific stations in the Antarctic. Belgium had undertaken little scientific research work for some time. Some new CPs had undertaken a rather limited amount of independent scientific work before being admitted. 9. According to Quigg, op. cit., p. 148, one of the most time-consuming matters at the Washington conference was conditions and procedures for new consultative memberships. 10. See Luard, E. 1984. Who owns the Antarctic? Foreign Affairs, p. 1184. 11. The two subsequent measures related more specifically to the minerals regime, which as such is not a subject for discussion in this chapter. 12. The CCAMLR has now been ratified by the 15 original signatories. All are members of the decision-making commission, together with the European Economic Community, which acceded in 1982. Sweden, Spain, India, the Republic of Korea, and Uruguay have also acceded to the convention and Brazil plans to. 13. See Quigg, op. cit., pp. 189-193. 14. See Report of the Twelfth Consultative Meeting, Polar Record 22(136):109. 15. See paper delivered by L. Kimball in Antarctic Politics and Marine Resources: Critical Choices for the 1980s. 1985. Center for Ocean Management Studies, University of Rhode Island (Kingston, R.I.), 1985, p. 247. See also Beck, P.J., The
332 United Nations and Antarctica. Polar Record, 22:137-144; Sollie, F. Polar Politics: Old Games in New Territories, or New Patterns in Political Development, p. 26: "Here, mutual accommodation clearly is needed in that the privileged few must adapt the operation of the Treaty and the regime for resources to take all due account of the broader international interest, while those who emphasize the doctrine of the common heritage must adjust their demands to established rights and to actual possibilities for development. 16. See Report on Antarctica, November 1, 1984. International Institute for Environment and Development (Washington, D.C.), 1984, p. 6. 17. See Report of the Twelfth Consultative Meeting, Polar Record 22(136):108.
333 APPENDIX 22-A: EXTRACT FROM THE FINAL REPORT OF THE F IRST SPECIAL ANTARCTIC TREATY CONSULTATIVE MEETING "The Representatives of the Consultative Parties (Argen- tina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, the Republic of South Africa, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America) met in London on 25, 27 and 29 July 1977. ~ m e Meeting considered in Plenary Session the ques- tion of procedures to be adopted to give effect to Article IX, paragraph 2, of the Antarctic Treaty ... and decided as follows: n The Representatives of the Consultative Parties Recognizing the need for a procedure of consultation to be adopted between them in the event that another State, having acceded to the Antarctic Treaty, should notify the Depositary Government that it considers it is entitled to appoint Representatives to participate in Antarctic Treaty Consultative Meetings; Recalling that Recommendations which became effective in accordance with Article IX of the Treaty are, in terms of that Article 'measures in furtherance of the principles and objectives of the Treaty'; "Recalling their obligation under Article X of the Antarctic Treaty to exert appropriate efforts, consistent with the Charter of the U.N., to the end that no one engages in an activity in Antarctica contrary to the or inciples or purposes of the Treaty; "Recognizing that the entitlement of an acceding State to appoint Representatives to participate in Antarctic Treaty Consultative Meetings under Article IX, paragraph 2, of the Treaty depends on such a State demonstrating its interest in Antarctica by conducting substantial scientific research activities there, such as the estab- lishment of a scientific station or the dispatch of a scientific expedition; "Unanimously decide: 1. An acceding State which considers itself entitled to appoint Representatives in accordance with Article IX, paragraph 2, shall notify the Depositary Government for the Antarctic Treaty of this view and shall provide information concerning its activities in the Antarctic, in particular the
334 content and objectives of its scientific programme. The Depositary Government shall forthwith communi- cate for evaluation the foregoing notification and information to all other Consultative Parties. Consultative Parties, in exercising the obligation placed on them by Article X of the Treaty, shall examine the information about its activities supplied by such an acceding State, may conduct any appropriate enquiries (including the exercising of their right of inspection in accordance with Article VII of the Treaty) and may, through the Depositary Government, urge such a State to make a declaration of intent to approve the Recommendations adopted at Consultative Meetings in pursuance of the Treaty and subse- quently approved by all the Contracting Parties whose Representatives were entitled to participate in those meetings. Consultative Parties may, through the Depositary Government, invite the acceding State to consider approval of the other Recommendations. -. As soon as possible, but in any case within 12 months of the date of the Communication by the Depositary Government to the other Consultative Parties referred to in paragraph 1 above, the Government which is to host the next Consultative Meeting shall convene a Special Consultative Meeting in order that it may determine, on the basis of all information available to it, whether to acknowledge that the acceding state in question has met the requirements of Article IX, paragraph 2 of the Antarctic Treaty. The adequate prepara- tion of the Special Consultative Meeting shall be undertaken through diplomatic channels. 4. With the agreements of the Representatives of all the Consultative Parties, the Special Consu~ta- tive Meeting shall record this acknowledgment in its report. The acceding State shall be so notified by the host Government of the Special Consultative Meeting. 5. The procedure hereby established may be modified only by a unanimous decision of Consultative Parties. n
335 APPENDIX 22-B: STATEMENT OF NONCONSULTATIVE PARTIES "The delegations of the Nonconsultative Parties to the Antarctic Treaty having been present at the Twelfth Consultative Meeting express appreciation to the Govern- ment of Australia and to the other Consultative Parties at having been invited to this Meeting. "Our presence reflects the interest of our Governments in the development of the antarctic system and our willingness to contribute to the maintenance and further development of the principles and objectives of the Antarctic Treaty. "We all recognize the achievements of the Treaty, for example with regard to cooperation in the field of scien- tific research, the protection of the environment, and demilitarization. We noted with satisfaction the recog- nition by the Consultative Parties of the difference in position between the Nonconsultative Party and observers. "We have noted, furthermore, with satisfaction that the Consultative Parties are receptive to a more meaning- ful and substantive participation of Nonconsultative Parties, which would undoubtedly contribute to strengthen- ing the system. Likewise the delegations of the Noncon- sultative Parties fully endorse statements of Consultative Parties which have been made during the Twelfth Consulta- tive Meeting regarding the importance of the availability of information to the Nonconsultative Parties so as to facilitate their participation in the various antarctic meetings. "We believe that the participation of Nonconsultative Parties in the various activities of the antarctic system is important for the strengthening of the system and for the contribution thereto by the Nonconsultative States. Owe request that this statement be attached to the Final Report of the Twelfth Consultative Meeting. "Canberra, September 27, 1983."