There are disturbing indications that a major international dispute may be about to emerge over an important but little known area of the world's surface: the Antarctic.

The problem raises some of the same issues that have become a source of contention in relation to the international seabed. Who owns the area? Can the region, or individual parts of it, be taken under the control of individual states or groups of states? If it proves to contain valuable economic resources, how should they be exploited and for whose benefit? How should decisions be reached on these questions-in other words who should determine what kind of "regime," if any, should be established to regulate the area? Finally, what should be the nature of such a regime if it were to be established?

In the case of the seabed, these problems caused 15 years of debate and argument, provided the subject matter of a prolonged international conference which lasted for over eight years, and finally produced a comprehensive draft treaty which remains controversial. Though the Law of the Sea Treaty has now been signed by over 130 countries, the United States, Britain and West Germany are significantly absent from the Treaty's parties. Exploitation of the seabed has provoked a major, though little publicized, crisis in North-South relations which could continue to cause difficulties in the West's relations with developing countries for many years to come.

As far as the Antarctic is concerned, the disagreement has only just begun. When the issue was raised at last year's U.N. General Assembly, it may have been only the first shot in a long war which could last for years and which will be fought partly (though not entirely) on a North-South basis. Further discussions are taking place now, and the issue is likely to figure in the forthcoming General Assembly opening in September, where a more serious confrontation could occur.

This article seeks to sketch briefly some of the historical background, to describe the principal sources of dispute today, and to suggest a possible way of resolving the difficulties.

II

Let us begin with the past.

Exploration of the Antarctic was begun about 200 years ago. In 1772-75 Captain Cook sailed round most of the continent and proved for the first time that New Zealand was not a part of it. In 1819 a British party landed in what is now called the South Shetland Islands and at about the same time a Russian expedition sighted the mainland. A U.S. sealing ship in 1821 made what may have been the first landing on the land mass of Antarctica. In 1840 a French scientific party, studying magnetism, claimed Adelieland for France-though no Frenchman landed there until 1948. At almost the same time an American party under Captain Wilkes discovered the area now known as Wilkesland.

Systematic exploration of the land mass began with Roald Amundsen's international expedition of 1897, followed by a series of further expeditions until 1912 when, almost simultaneously, Amundsen and Robert Scott reached the South Pole.

Scientific expeditions continued between the wars; in 1938 the United States established an Antarctic Survey which briefly placed a permanent base in the Antarctic. But neither the United States nor the Soviet Union, among the exploring powers, asserted territorial claims to any part of the area.

 

Other countries were less reticent; seven countries have, over the years, put forward claims on various grounds. Britain, France and Norway claimed various clearly defined geographical areas, usually on the basis of discovery or "effective occupation." Claims were also put forward by the two nearby South American countries, Chile and Argentina, on a number of grounds: discovery and occupation, but also administration of the area, the occurrence of births and marriages within it (carefully organized by Chile) and even the Papal Bull of 1493 and the subsequent Treaty of Tordesillas dividing the Americas between Spain and Portugal.

 

Early in this century these claims were extended into the deep heart of the continent, whether or not the areas had been explored or occupied at all. The ingenious "sector principle" (previously used in the Arctic) was invoked: where any two points near the periphery had been effectively occupied, not only could the land lying between them be claimed but the entire sector or cone having its apex at the Pole. Under this principle most of the continent fell rapidly under national claims; by 1940 only one sector, representing perhaps a sixth of the continent, remained unclaimed. It remains so until today.

All the claims were controversial. Though "discovery" could be asserted for small parts of each sector, there was no "effective occupation" of most of them. Some of the claims were mutually contradictory. The whole of the land claimed by Argentina, for instance, lies within the area claimed by Britain. More than half the area claimed by Chile is claimed also by Argentina or Britain or both. In the immediate post-World War II period these conflicting claims led to a number of incidents: flags were torn down, stations destroyed and rival expeditions sent to the same areas. In 1952 a scuffle took place between British and Argentine parties at Hope Island. Though insignificant in themselves, these incidents attracted considerable though short-lived publicity and drew attention to the potential dangers of the rival claims.

Interest in the area was revived during the International Geophysical Year of 1957-58 (the "Year" was finally stretched over two). The Antarctic is important for scientific research, especially because of its important effects on world climate. A number of countries undertook studies and a highly effective basis of cooperation was established among groups of different nationalities (including American and Soviet teams). As the "Year" drew to a close there was concern that the cooperation established should not end, and in particular should not be damaged by the effects of disputes over sovereignty or other rights. There was also a fairly general desire to prevent the area being used for military purposes; serious suggestions had been floated that Antarctica might be a suitable area for nuclear testing or even for the emplacement of missiles.

In May 1958 the U.S. government invited 11 countries thought to have a special interest in the Antarctic to discuss more permanent arrangements. Included were the seven claimant states, Britain, France, Norway, Australia, New Zealand, Argentina and Chile, plus the Soviet Union, Japan, Belgium and South Africa. The criteria for inviting non-claimants appear to have been related to scientific activity at that time. The Soviet Union eventually agreed to take part, while making clear that it reserved the right to put forward territorial claims in the future.

Working parties met in Washington starting in July 1958, and a formal conference began in November the following year. In December the 12 countries agreed to the terms of the Antarctic Treaty, which came into effect two years later.

The main purpose of the Treaty was to provide for the continuing conduct of peaceful scientific research in the area (which was defined as the area south of 60° latitude). It banned all military activities there as well as nuclear explosions or the dumping of nuclear waste. It put in abeyance all existing claims in the area-no country was asked to abandon its claims but none was asked to recognize them either. The area was to be open to scientific expeditions from all countries party to the Treaty. As a safeguard against violation, each signatory was to inform the others of all installations and expeditions and a system of mutual inspection was established. Officially designated observers would have the right of access to all stations, installations and even the ships maintained by other parties to the Treaty within the area. All individuals and expeditions would be subject to the jurisdiction of their own governments (and not therefore to that of the claimant powers). The signatories agreed to meet at regular intervals to consider the operation of the Treaty.

The Treaty was open to accession by other countries. But only those judged to have undertaken "substantial scientific research activities" were to become "consultative parties" and therefore be able to take part in the management of the system. In the first 23 years of the Treaty only two more countries were admitted to this status: Poland (1977) and West Germany (1981).

The Treaty marked an important step forward. First, it established the principle of de-militarization. Although this provision, like everything else in the Treaty, formally bound only those that became parties, it seemed unlikely that any other countries would seek to breach the principle once it had been laid down in this way. Second, by putting in abeyance conflicting claims, the Treaty reduced the threat to scientific activity from conflicts over sovereignty and jurisdiction. Finally, it established a system for regulating and supervising scientific research in the area in a way that would reduce conflict and promote cooperation.

For these limited purposes the Treaty has worked reasonably well over the past quarter-century. Research activity has steadily built up: during the summer months some 3,000 members of scientific expeditions can usually be found working in the Antarctic. A number of useful measures of conservation have been introduced. It is obviously important to ensure that scientific activity is not of a sort that can damage the unique and highly vulnerable environment of the area. Some measure of protection has been provided by a series of "regulations": by the Agreed Measures for the Protection of Fauna and Flora; by the Convention on the Conservation of Antarctic Seals; and, finally, in 1980, by the Convention on the Conservation of Antarctic Marine Living Resources.1

The Treaty powers believe that these measures should not be put at risk by changes in the system. Nonetheless, the Treaty has come under increasing criticism over the last few years. The right of the Treaty powers to exercise authority within the area has been questioned. Formally only a series of undertakings and restraints made by the parties themselves, committing them alone to particular types of action, the Treaty has been seen by some as a means of influencing and restricting the actions of other states as well. Critics believe that the purposes of the Treaty, and the functions of the Treaty powers, have been gradually enlarged from a system for scientific cooperation to the management of the area's resources. The system remains in the hands of a relatively small and, in effect, self-appointed group, almost entirely developed countries. A substantial number of European powers (of both East and West) are still excluded, as well as the vast majority of the developing countries of the world.

Perhaps to meet this criticism, two further countries have been admitted to the status of consultative parties within the last year: India and Brazil, both developing countries. In addition, about a dozen other countries have ratified the Treaty but have not been admitted as consultative parties on the ground that they are not undertaking "substantial scientific research activity." They are therefore unable to take part in the conferences every two years, though they can now attend as observers; in a sense their inferior status only underlines the degree to which the system as a whole remains in the hands of a small group, which itself decides which other countries shall be allowed to participate.

None of this mattered very much so long as the main subject under discussion was scientific research. Few other countries had the desire or the capacity to be involved in such research. The Treaty system is under attack now because the Treaty powers are increasingly involved in discussion of another matter in which a large number of other countries feel that they have a vital interest: the question of what system should be introduced to regulate the exploration and exploitation of the potential mineral resources of Antarctica.

III

A precedent of sorts was set for the discussion of resource questions when the Convention on the Conservation of Antarctic Marine Living Resources was adopted in 1980. In that measure the Treaty powers took responsibility for controlling the use of resources-notably abundant stocks of the shrimp-like krill, fished primarily for animal feed-within (and indeed beyond) the Treaty area. Questions could reasonably have been asked then about the right of this particular group of powers to draw up legislation relating to the use of those resources. But at the time, few questions were asked, and for a fairly simple reason: few countries were interested in fishing in the area and most of them were already Antarctic powers. There was general recognition that conservation was needed and no great objection to the particular measures proposed. In any case little publicity surrounded the Convention; many countries were probably barely aware of what had been done.

The Living Resources Convention established a Commission which, like regional fisheries commissions in other parts of the world, was to survey the living resources in the area, establish the scale of fishing activity and the size of catches, and publish information about them. It had the power to designate observers able to board fishing vessels to check on catches and activity. On the basis of this information, it could decide on any conservation measures it believed to be necessary. But the powers of the Commission are in practice limited: it has to reach its decisions by consensus; any member that feels unable to adopt a particular recommendation has only to give notice within 90 days.

Questions remain, therefore, about how far the Commission will be able to secure compliance with its recommendations and how effective the system is likely to be. A number of fisheries experts have expressed doubt that the Convention will prove effective in reducing threats to the stocks of krill. Disputes occurred among the Treaty powers themselves during the negotiations for the Convention about its application, especially about the provision it makes for "coastal state jurisdiction," which some of the parties interpret to mean jurisdiction based on their own claims to the Antarctic continent, even though these claims have not been officially recognized by the others. Such conflicts are some indication of the problems that could arise, even among the Treaty powers themselves, in establishing a regime for the potentially more valuable mineral resources of the area.

A minerals regime would be a much larger and far more controversial undertaking. It could lead to considerable differences among the Treaty powers themselves and, even more, between the Treaty powers as a group and other sections of the international community.

The Antarctic land mass has long been suspected to contain valuable resources: coal, iron ore, copper, nickel, lead, silver, cobalt, manganese, titanium. Because 98 percent of the continent is covered by ice, however, there is no serious likelihood that any of these will be exploited within the near future. Most of the interest has therefore concentrated on the resources of the immediate offshore areas which, some experts believe, could be rich in oil and gas.2

More than 15 years ago Texaco approached the U.S. government to inquire about obtaining a license for exploration in this area. In 1974 the U.S. Geological Survey produced a highly optimistic estimate of available Antarctic oil and gas reserves, suggesting that the discoverable oil reserves of the Ross, Weddell and Bellinghausen Seas could contain recoverable reserves of 15 billion barrels. In February 1979 a representative of Gulf Oil said that he believed the oil potential of the Ross and Weddell Seas alone was in the range of 50 billion barrels; recoverable oil in the Alaskan North Slope fields, for comparison, is estimated at ten billion barrels. During the late 1970s both Norway and West Germany undertook surveys in parts of the Weddell Sea, which were probably designed to examine the possibilities of economic exploitation. In 1980-81 Japan began a three-year search for oil and gas under the auspices of the Japan National Oil Corporation. British Petroleum has expressed considerable interest in the potential of Antarctica as a source of oil and there have recently been British investigations off the east coast of the continent. The French Petroleum Institute, the Institut Français de Petrole, has undertaken seismic work off Adelieland and the Ross Sea in the last two or three years. Australia's Bureau of Mineral Resources has shown increasing interest in the area and has undertaken seismic work off the Amery ice shelf. In 1975 the Soviet Union established a base in the Weddell Sea area, probably designed to study the possibilities of mineral exploitation. Both the Soviet Union and Poland have undertaken oceanographic and seismic work during the last five years. The U.S. government has been undertaking survey work in the Ross Sea within the last year.3

All this activity would not be taking place in the absence of a real possibility of major oil and gas finds. The questions arise, therefore: who do the Antarctic resources belong to? Who can decide when, where, how and by whom they can be exploited? And who should derive the benefit from the royalties (if any) to be obtained?

Over the last year, discussions among the Treaty powers on this question have become intensive. Meetings of the consultative parties took place in Washington in January and subsequently in Tokyo. These negotiations are confidential, but it seems fairly certain that the Treaty powers are hoping to be able to produce proposals for a minerals regime in the near future.

Knowledge that these discussions have been taking place has stimulated action elsewhere. The fear of decisions being reached which could determine the disposal of the resources of this area, widely seen as international and outside the sovereignty of any particular states or group of states, has caused increasing concern, particularly among developing countries. Many reject the right of the 16 existing consultative parties to determine unilaterally the future of the area and its resources. They have suggested that a more genuinely international system for regulating the use of the area needs to be created.

The question was raised at the 1982 General Assembly session of the United Nations by the Prime Minister of Malaysia, Dr. Mahathir bin Mohamed. He declared that "the days when the rich nations of the world can take for themselves whatever territory and resources that they have access to are over. Henceforth, all the unclaimed wealth of the earth must be regarded as the common heritage of all the nations of this planet." He rejected the claims made to parts of the area in the past as similar to those previously made by colonial countries:

These uninhabited lands do not legally belong to the discoverers, just as the colonial territories do not belong to the colonial powers. Like the seas and the seabeds, these uninhabited lands belong to the international community. The countries presently claiming them must give them up so that either the United Nations administer these lands or the present occupants act as trustees for the nations of the world. . . . We are aware of the Treaty of Antarctica concluded by a few nations which provides for their cooperation for scientific research. . . . While there is some merit in this Treaty, it is nevertheless an agreement between a select group of countries and does not reflect the true feelings of members of the United Nations or their just claims. A new international agreement is required so that historical episodes are not made into facts to substantiate claims.

This move soon got wider backing. At its 1983 summit meeting in New Delhi the Nonaligned Movement issued a statement to the effect that the "exploration of the area and the exploitation of its resources shall be carried out for the benefit of all mankind. . . ." The 1983 session of the General Assembly, it urged, "should undertake a comprehensive study on Antarctica, taking into account all relevant factors, including the Antarctic Treaty, with a view to widening international cooperation in the area."

Once again Malaysia took the lead at the 1983 General Assembly, declaring the need for a new, more broadly based system. A resolution was passed by consensus calling on the U.N. Secretary-General to undertake a "comprehensive, factual and objective" study of the problems of the area and to report back. It therefore seems inevitable that the issue will be discussed again at this year's General Assembly, whether or not the Secretary-General's final report is then ready.

Thus, a considerable swell of opinion has built up in the international community for a new look at the Antarctic arrangements. Many feel that the Treaty powers do not have the legal right to dispose of the area's resources. A demand is being put forward that a new, more genuinely international system governing the area now needs to be created.

IV

What should be the response to these events?

A growing tide of international opinion does not, of course, mean that the Antarctic Treaty necessarily needs to be abandoned and some entirely new set of arrangements put in its place. Defenders of the Treaty system rightly argue that it has served for over a quarter-century to create stable conditions for scientific research and effective protection of the environment in the area; it would therefore be foolish to jettison a piece of machinery that is serving its purpose so well.

The Treaty powers, however, 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. A system of control by a very small group of mainly developed nations that may have worked reasonably well when other countries had little interest in the area will not necessarily work well at a time when widespread international attention has become focussed on the region.

What are the conditions that must be met by any satisfactory system governing the affairs of the Antarctic?

Clearly it must maintain the existing de-militarization of the region. It must provide the basis on which scientific research can continue to be undertaken in conditions of cooperation. It must provide the best possible protection for the truly unique environment of Antarctica (an environment that is especially vulnerable-for example to the effects of oil spillage, as the special measures taken by Canada to protect the Arctic environment there have recognized). It must provide reasonably open access to the area for all legitimate purposes, while avoiding the dangers of a free-for-all and a competitive scramble, whether for territory or resources. Above all, it must establish a reasonably stable system which is not subject to sudden reversals, or to challenge from without. This means that it must be a system commanding a considerable measure of international consent. No system that is without such consent, certainly not one that is opposed by a significant section of the international community, is likely to provide the stability necessary for making a minerals regime viable, and for securing the high volume of investment that is likely to be required.

Three broad measures could be devised as the means for fulfilling these conditions. One is likely to emerge from the current discussions of the Antarctic Treaty powers. This would be to maintain the existing Treaty system and establish a new minerals regime within it. Such a proposal would maintain the viability of the Treaty system, and ensure that management lay in the hands of those with the greatest experience and knowledge of the Antarctic.

But any such Treaty-based regime would face three difficulties. First, it would retain its exclusive character. Membership of the select group of "consultative parties" has, as we have seen, been broadened only very marginally in the past 25 years. The only African country now represented is South Africa, a fact which in itself must make the system fatally suspect to almost every other country in Africa. To make the Treaty more acceptable to outside countries (including other European countries not now involved), membership would need to become far more broadly representative, with at least two or three representatives from each continent. This would demand a change in the criteria on which admission as a consultative party takes place. So long as the Treaty was primarily concerned with cooperation in scientific research, the condition that a member should have undertaken "substantial scientific research activity" was not an unreasonable one (though the definition of "substantial" was always imprecise). If a principal function becomes the management of the resources of the area, that qualification becomes less logical. There are already some signs that technical capacity is not the only factor influencing admission to the ruling group.4 If the Treaty is to be made more acceptable, political factors will need to be given still more weight.

A second difficulty in the Treaty powers' approach concerns the minerals regime itself. Their plan will no doubt provide for "open" access by all states and their enterprises. But this will not make the system more acceptable to the great majority of the world community. Developing countries are only too aware that it will be a long time before their nationals are in position to undertake exploitation work. A system of open access to the territory-that is, of granting licenses on the basis of first-come-first-served-will therefore be seen (as was the case in the seabed discussions) as slanted in favor of the industrialized countries. They alone are in a position at present to make use of the opportunities available. Even if arrangements were made for generous revenue-sharing-that is for distributing part of the royalties received to the whole international community, or to all developing countries or the least developed countries-these objections would not be overcome. Non-Treaty powers will be as much concerned (as in the case of seabed exploitation once more) about opportunities for direct involvement in operating activities as about the administration of the system or financial benefit. The establishment of an open and non-discriminatory regime for exploitation will thus not in itself overcome their suspicions; on the contrary, they would certainly strongly oppose a system in which they felt that opportunities for exploitation were to be enjoyed exclusively by multinational companies from the developed countries.

The third problem that would face such a Treaty-based system is the greatest of all. Even if membership was broadened, the system would continue to be based on questionable legal foundations, and could on these grounds be easily challenged. Critics could point out that even the Treaty itself does not make any provision for mineral exploitation. Nor does it put forward any claim to control over the resources of the area. On the contrary, it specifically states that "no act 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 right to sovereignty in Antarctica."

A minerals regime inevitably raises the fundamental question of ownership of the area and its resources. The claims previously put forward by the seven claimant countries could hardly be used as the basis for asserting rights. Those claims have explicitly placed in abeyance by the Treaty powers (including the United States), and are rejected by some outside powers. They are in some cases in conflict with each other. They do not cover the entire continent. The high seas, beneath which many of the most valuable resources are believed to lie, are excluded from the jurisdiction of the Treaty; and it is not self-evident that a continent which is itself under no accepted sovereignty can, in effect, create its own Exclusive Economic Zone (above all for that part which has never been claimed).5

Finally, and most important of all, however binding the Treaty may be for those countries which have signed and ratified it, it can have no force for the 130 or so countries that are not party to it. This means that any of them could quite legally-perhaps through arrangements with a company registered in its territory-undertake exploration and exploitation within the area, in defiance of the regime proposed, and in so doing make it almost unworkable. At least, this could create such instability as to deter the necessary investment.

These represent serious difficulties that would face any attempt by the Antarctic Treaty powers to establish a minerals regime under the terms of that Treaty. What is the next choice? The developing countries are likely to propose abandoning the existing Antarctic Treaty altogether and to devise a wholly new regime, perhaps under the auspices of the United Nations, governing all uses of the Antarctic area. They see the Treaty as an unauthorized venture by a small group of powers which, now that others have become aware of the problems, needs to be replaced by a more genuinely international and comprehensive system. But there are difficulties here too.

The negotiations required to establish a wholly new "regime" would be far more lengthy and complex than if the purpose were only to establish a system for minerals exploitation (itself already quite complex enough). There would need to be a negotiation over the creation of a new system governing scientific research and protection of the environment within the Antarctic area (not unlike that which took place in the Third Committee of the Law of the Sea Conference, the committee dealing with research and marine development). Bitter disputes would surely ensue about the status of the measures already implemented, for example, concerning living resources and conservation generally. The existing de-militarization of the area would be at risk. The scientific community, which is generally content with the present arrangements, would be extremely anxious about possible constraints on freedom of research. There would be many problems relating to enforcement. Essentially technical questions about research would be politicized. The negotiations would be likely to lead to sharp confrontations between North and South, possibly on some of the same issues that caused difficulty in the Law of the Sea negotiations-freedom of scientific research, the role of flag states (or the governments sponsoring scientific expeditions) in enforcing environmental regulation, and so on. The goodwill of the Antarctic Treaty powers would certainly be further eroded if the entire system they have set up were to be threatened in this way. The chances of conflict, and even breakdown, in the negotiations would be very much increased. And if the Antarctic powers refused to abandon their existing system, there would be a direct conflict of authority within the region.

Thus, as long as the Treaty is progressively opened to new members as their scientific capacity increases, there would seem to be little advantage in replacing it with new mechanisms for coordinating research and protecting the environment. Both functions are being well performed under the present arrangements. Neither is an activity in which outside countries are much concerned to participate. The interest of non-Treaty powers is concentrated on the area's mineral resources.

V

This leads to consideration of a third solution which has so far had little discussion: this is to retain the existing Antarctic Treaty for all its current purposes, but establish some separate system for the management of the area's resources. Important benefits from the present Treaty would be retained. The provisions for de-militarization of the area would remain unaffected. So would the system for overseeing research activities and for preserving the global environment. Once it was made clear that these were now the main purposes of the Treaty, and that it no longer made any claims to provide authority for controlling the area's resources, most of the antagonism now felt toward it would be likely to disappear. Large numbers of countries presently hostile would probably become willing to ratify and to participate in the Treaty's cooperative measures.

For the purpose of controlling mineral development, however, a new system would be established that was more fully international. This could still be done in close collaboration with the Treaty powers (many of which would play a leading part in the operation of any minerals regime anyway). But the ultimate responsibility for setting up the regime would be undertaken on a wider basis, having a more generally recognized legitimacy and therefore able to command a greater degree of international confidence. Such a regime should secure a better balance of interests among different groups than one established by the Antarctic Treaty powers alone.

The latter have, and are seen as having, a self-interest in allowing exploitation on a relatively free basis. "Access to resources" and "security of supply" may appear to them to be more important principles than wise management of resource use, environmental control and just distribution of exploitation opportunities. They are likely therefore to be more permissive in the way they run the system than a more broadly based and detached authority would be. That this could be so is demonstrated by the so-called Beeby proposals, discussed by the Treaty powers a year or so ago on the initiative of the New Zealand chairman of the relevant committee. These provided that applications for licenses to operate should be considered by Regulatory Committees, consisting mainly of representatives of the applicant states and those they nominated, and representatives of claimant states and those they nominated-in other words, precisely those whose interest in exploitation is greatest. Proposals of this kind have seemed to confirm the fears of environmental groups that a regime established by the Treaty powers alone would be over-favorable to exploitation and would not allow adequate protection of other interests.

How would such a system cope with the fundamental question of ownership? Would the seven claimant countries accept a more broadly based minerals regime of the sort proposed here?

It has been suggested that one of the advantages of continuing to make use of the Treaty system for organizing a minerals regime is that it is likely to be more possible within that relatively small group to contain the pressures from the claimant countries, and to cope with their demands for special treatment in recognition of their "rights." It is by no means certain, however, that the Antarctic Treaty system itself can deal effectively with these demands-certainly not in a way that is likely to be acceptable to the international community outside.

Any system in which considerable weight is attached to the rights of the claimants would immediately raise the ancient conflicts concerning these claims. These are disputes among the Treaty powers themselves, and the conflict of interests between the claimant and non-claimant powers among the Treaty nations is at least as great as that between the Treaty and non-Treaty countries.6 For example, the likelihood is that claimant countries will favor a system in which they will enjoy a share in relatively high royalties, as well as a share in control of access-whereas the United States, as the country with the greatest interest in free access and easy exploitation, has an exactly opposite interest.

Nor is it necessarily the case that the problem becomes greater in any wider forum. For example, it is not impossible that the two Latin American claimants, whose demands have been the most insistent, might be willing to consider some system in which their rights were shared in some way with other countries of Latin America. Such an arrangement could not be reached among the small group of Antarctic Treaty powers alone.

There is no reason why a fully international minerals system should not take account of the special claims and interest of particular powers or groups of powers: claimants, geographical neighbors, potential exploiters and so on. Nearly all the U.N. bodies so far established with responsibility over various types of economic activity have granted special representation in their councils to particular powers having the greatest knowledge, experience and interest in the field concerned. Thus the International Labour Organisation provides special representation for the countries of "chief industrial importance"; the International Civil Aviation Organization for the countries of chief importance in civil aviation; the International Maritime Organization for the chief ship-owning and chief ship-using countries. In the World Bank and the International Monetary Fund a greater voting power is accorded to the countries that contribute most of the funds (so that the rich countries with only about 20 percent of the population have 60 percent of the votes). In the negotiations for the Law of the Sea Treaty there were prolonged discussions about the composition of the Council responsible for supervising the implementation of the Treaty; the formula finally arrived at, giving special representation to the countries most involved in seabed exploitation as well as to the chief consuming countries (in both cases likely to be developed states), was accepted by the Carter Administration, and by other Western nations at that time, as representing a reasonable compromise.

A new system negotiated for the Antarctic could contain similar provisions, for example, special representation on the supervisory council for particular groups of countries recognized as having a special interest. These would undoubtedly include the countries with a special geographical interest, Argentina, Australia, Chile and New Zealand, for example; or even those with a special historical interest, such as Britain, France and Norway.7 It could also include special representation for countries particularly involved in scientific research in the area. It could include the United States and the Soviet Union as superpowers (and countries having a long-standing historical interest). And it would also no doubt include representative developing countries: perhaps Brazil, India and China, already deeply involved, along with others representing particular areas.

If a council of 30 or so countries were established on this basis, it should go some way to meeting the concern of the existing Treaty powers that their special interests and their historical responsibilities should be recognized; and it would assure countries previously excluded from participation that the system would be based on a more genuinely international and democratic foundation.

If this were the system of control, how might the benefits of exploitation be distributed? The general assumption has always been that the regime established would provide for a system of licenses for operation in the area, to be granted to individual companies and enterprises in return for royalties (in the same way that national governments grant licenses to their own offshore areas). One of the problems would concern the distribution of royalties. There is a good case for setting aside at least a significant share, not merely to cover the costs of administration, but for the cost of establishing an adequate system for preserving the Antarctic environment.

Since there is no precise knowledge so far of what resources exist, and what the scale of exploitation is likely to be, we can also have no idea of the scale of funds likely to be generated. But it seems possible that, as in the case of the international seabed regime, these will be much smaller than has been widely hoped. If there were funds left over, there is a case for using some to finance schemes that would enable people from developing countries to have a larger share in research within the Antarctic area and for a transfer of technology in exploitation. Many would like to think that there would still be enough left over to provide for distribution to member states, especially the least developed, but it is unlikely that the sums available for this will be large, at least for some time to come.

The seven claimants, or at least some of them, may make demands for special treatment in this respect too. There has been some indication over the last few years of a hardening of attitude among these countries. Chile recently settled a party in the sector of the Antarctic which it disputes with Britain, apparently with a view to strengthening its territorial claims. Peru, which was not an original claimant, has recently suggested that it too enjoys special rights in the area. Even the British government has given some signs that it expects to receive special treatment by virtue of its territorial claims (and the reassertion of its rights in the South Shetlands recently may indicate the importance it attaches to these claims).

Other powers are not likely to look on such claims with much sympathy, either within the Antarctic Treaty system or outside it. Developing countries could possibly be somewhat more sympathetic to the claims put forward by immediately neighboring countries; in this respect four of the claimants (Argentina, Chile, Australia and New Zealand) might be thought to have a claim to special consideration. These would be matters that would need to be negotiated in any new system to be established. They would no doubt give rise to some bitter disputes, but there is no fundamental reason why they should not ultimately be resolved, just as compromises were finally found on many of the equally difficult issues negotiated in the Law of the Sea discussions.

VI

Thus, of the three alternatives that we have outlined, the last seems likely to provide the best basis of approach. The final outcome will depend on the results of complex negotiations, both among the Antarctic Treaty powers themselves (whose views by no means coincide) and between the Antarctic powers as a whole and the other members of the international community. Eventually there may well be proposals for a big international conference, comparable to the Law of the Sea Conference, to draw up a new convention.

It is probable that the Antarctic Treaty countries will soon come forward with their own proposals for a minerals regime. There is a danger-again there is a close parallel with the situation concerning the seabed-that there could be pressures to move ahead unilaterally with the adoption of such a regime, preempting action at the broader international level. Proposals of this kind have considerable dangers. They could well divide the Antarctic Treaty powers themselves, and would certainly create a very serious adverse reaction among the rest of the international community. Since a regime established in this way could turn out to be highly unstable, it is likely not only to be confrontational in effect but ultimately self-defeating in its outcome.

The difficulties of reaching agreement on any satisfactory international system should not be underestimated. There are many diverse interests that have to be reconciled: those of the existing claimants, of the immediately neighboring powers, of the superpowers, of producing and consuming states, and of the large majority of nations at many different stages of development, which have so far been excluded from participation in the system. It will not be easy to match the legitimate interests and aspirations of each group. But it is the task of international negotiations to seek such reconciliation, and with reasonable goodwill there is no reason why they should not finally prove able to do so in this case.

Certainly the consequences of not reaching agreement could be disastrous. A major split, leading to a conflict of authority, could usher in a period of anarchy in the area. This could cause grave damage to a unique part of the world's environment. There could be a threat to the cooperative system for scientific research that has worked so well over recent years. There could even be a competitive grab for resources. In the worst case of all there could even be renewed territorial conflicts within the region.

These are all reasons enough why an intensive effort should now be made to establish an effective international system to govern the affairs of this very special part of mankind's natural heritage.

1 U.N. agencies which expressed an interest in the area-specifically the U.N. Environmental Program, which proposed a program of environmental protection in Antarctica in 1975, and the Food and Agriculture Organization, which planned a major scheme for fisheries regulation about the same time-have been firmly discouraged from interesting themselves in these matters. As a result, many of the powers concerned in drafting the Living Resources Convention had no knowledge or experience of fishing in the area, while some of those that did (Taiwan and South Korea, for example) could not participate.

2 See Barbara Mitchell, Frozen Stakes: The Future of Antarctic Minerals, London: International Institute for Environment and Development, 1983, p. 48.

4 Belgium remains a Consultative Party, though it has undertaken little scientific research work for some time. China was given help by Australia and New Zealand in sending scientists to Antarctica in 1981, possibly with a view to assisting it to become a Consultative Party. Brazil had undertaken only a small amount of scientific work before being invited to become a Consultative Party. At one time maintenance of a year-round station in Antarctica was a desirable credential for acceptance as a Consultative Party, a condition no longer demanded.

5 Such a Zone is a 200-mile belt off the shore of a coastal state in which that state exercises resource jurisdiction but cannot interfere with navigation or other high seas freedoms.

6 Ironically, the more membership of the controlling group is extended to make it appear more representative, the harder it may be for the group to agree on a regime: it does not seem likely, for example, that India and Brazil, now Consultative Parties, will be very favorable to the kind of highly permissive, free market system being discussed a year or two ago. And the provision of unanimity for all decisions does not facilitate rapid decision-making among the Treaty powers.

7 France and Britain might well claim inclusion in the former category because of their responsibility for Kerguelen and the South Shetlands respectively.

 

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  • Evan Luard, formerly a Minister in the British Foreign Office with responsibility for international organizations affairs, is a frequent writer on international affairs. Among his books are The Control of the Seabed, A History of the United Nations (Vol. I) and The Management of the World Economy.
  • More By Evan Luard