THE ANTARCTIC TREATY OF 1959: An Overview
Picture courtesy: http://www.adventure-network.com/antarctic-treaty
This article was written by Vineet Kumar a student of National Law University Odisha.
INTRODUCTION
In the mid-1950s, a group of scientists convinced the United Nations to institute an event to promote cooperation in the sciences. Further, the UN designated 1 July 1957 to 31 December 1958 the “International Geophysical Year (IGY) for research and development.” During the 18 month IGY, Antarctica became the hub of research where scientists from 12 different nations worked together to study the climatic changes and its impact all over the globe.[1] At the conclusion of the project, all agreed that the IGY had been successful. The momentum of this symbolic event was followed by the drafting of the Antarctic Treaty on May 3, 1958, the United States proposed to the other 11 nations participating in the IGY that a conference be held, based on the points of agreement that had been reached in informal discussions with respect to:
- The retention of the legal status quo of the Antarctic Continent;
- Encouraging the continued scientific cooperation among the countries; AND
- Treaty to be used for peaceful purposes only.[2]
The Washington Conference’s discussions were held between October 15, 1959 and December 1, 1959. No issues divided the conference, and negotiations culminated in a treaty signed by all 12 nations on December 1, 1959. Approved by the U.S. Senate, U.S. ratification was deposited August 18, 1960, and the treaty was given effect on June 23, 1961, after receiving of Participant’s formal ratifications.[3]
LEGISLATIVE INTENT
The basic objective behind this treaty was to make Antarctica open for scientific research for every country and to avoid any claims or disputes by a single powerful nation exercising their dominion over the territory of Antarctica. Thus, the underlying object is to boost scientific research and to ensure peace among every nation in the world and to avoid any situation which would lead to World War III.[4] The Treaty applies over the south of 60° South latitude which is now known as the Antarctic Treaty Area (ATA) wherein it prohibits nuclear explosions, radioactive waste disposal, and military deployments. However, the only exception marked out is using military personnel to support scientists is specifically allowed, as well as for any other peaceful purpose which is the main objective behind the codification of this treaty.[5]
The Antarctic treaty is a significant step towards the peaceful existence of the Earth. It was at the initiative of United States that a conference in Antarctica was held. The main aim to hold this conference was to consider the conclusion of treaty on Antarctica for certain stated purposes. On May 2, 1958 United Stated extended to other 11 countries. These countries were invited to participate in the Antarctic program of the International Geophysical Year. All the 11 countries-Argentina, Australia, Belgium, Chile, the French Republic, Japan, New Zealand, Norway, the Union of South Africa, the Union of Soviet Socialists Republics, and the United Kingdom of Great Britain and Northern Ireland accepted the invitation. On December 1, 1959 a certified copy of the treaty was signed. From October15 to December 1, 1959 the treaty was formulated at the conference on Antarctica held at Washington. The treaty comprises of a preamble and 14 articles. Also, the preamble is in furtherance of the U N Charter.[6]
OUTLINE of the TREATY
ARTICLES
Article 1: Article 1 has been subdivided into 2 sub clauses.
- The first sub clause states that Antarctica would be used only for peaceful purposes i.e. it would not allow nuclear waste disposal, establishment of military bases, carrying out military maneuvers and testing of weapons.
- The second sub clause states that the treaty would not debar the use of military equipment that are used in scientific research.[7]
Article 2: Article 2 states that the treaty would allow and provide full cooperation and support for the scientific investigation in Antarctica (here in after referred to as “The Region”).[8]
Article 3:- Measures to promote scientific research in the region:
- To maximize the economy and the efficiency of operations the information about the scientific programs plan in the region would be exchanged.
- To exchange scientific personnel in the region.
- The exchange of scientific observations and results in the region would be made freely available.
- The establishment of cooperative working relations with the specialized agencies of UN & other organizations having scientific interest in the region would be encouraged.[9]
Article 4: The treaty shouldn’t be misinterpreted. The treaty does not reject, establish or dispute the claims or the basis of claims to territorial sovereignty. When the treaty is in force no acts or activities shall be supported.[10]
Article 5: Nuclear explosions and disposal of radioactive wastes are strictly prohibited.[11]
Article 6: The treaty shall apply to area south of 60 degrees including all land, ice shelves etc.[12]
Article 7: The state observers have the right to inspect all stations, installations and equipments (aerial observation). Each contracting party should inform other treaty members about expeditions to and within the region or any military equipment introduced in the region.[13]
Article 8: The contracting parties in case of any dispute regarding jurisdiction in the region shall find a mutually acceptable solution without any prejudice.[14]
Article 9: Representatives should meet at Canberra or any other place within suitable intervals for exchanging information and consulting on certain matters.[15]
Article10: All the Contracting parties would be consistent with the UN Charter so that no one engages in activities against the treaty.[16]
Article 11: If a dispute arises between 2 parties then it should be resolved with negotiation or else by International Court of Justice.[17]
Article 12: Representatives shall inform other parties and then can modify the agreement after receiving the notice of ratification. 2 years is the time for implementing the modification.[18]
Article 13: Each party shall take appropriate measures within its competence to ensure compliance with the protocol.[19]
Article 14: The present treaty is done in different language and each version is of equal importance.[20]
IMPACT & ANALYSIS of the TREATY
As per Lawrence M. Friedman[21] the term welfare legislation has to be understood as a legislation specifically for public assistance and welfare should be established not in individual terms but in terms of the entire society.[22] Thus, the only requirement for law to fit into the definition of welfare legislation is creation of an egalitarian society which is based on bridging the difference between ‘haves’ and ‘have not’s’.[23]
The Antarctic treaty holds a very positive position[24] with a unique interface in the field of Public International Law. The overall impact that the treaty has created is of immense value wherein not only a position as threatening as a World War III[25] could be replaced with peace and harmony but also scientific research could be held in a much more subtle and uniform way. This piece of legislation in all terms does qualify the essentials for a welfare legislation since the basic aim is to eliminate the entire division between the countries ‘having the right to conduct scientific experiments within the region’ and ‘don’t having the right to conduct scientific experiments within the region’. Thus, this treaty has been one of the first possible ways to bring the concept of World peace & harmony.[26]
PRESENT POSITION
The treaty started off with 11 member states but the impact which it has created has made its mark over the entire world which has made several countries to join this world mission. The present position of this Treaty states that 48 nations have agreed to the Antarctic Treaty, but only 28 control the decision making process. These 28 are the “Consultative Parties” mentioned above, and they include the original 12 signatories. Only the Consultative Parties have votes at the Antarctic Treaty Consultative Meetings (ATCM), and every decision requires a consensus. However, nations who conduct scientific research on the continent can apply to become Consultative Parties.[27]
In 2011 while celebrating the 50th Anniversary of this Treaty[28], the 28 Consultative Parties were Argentina, Australia, Belgium, Brazil, Bulgaria, Chile, China, Ecuador, Finland, France, Germany, India, Italy, Japan, the Republic of Korea, Netherlands, New Zealand, Norway, Peru, Poland, Russia, South Africa, Spain, Sweden, Ukraine, United Kingdom, Uruguay, and United States. The 20 Non-Consultative Parties were Austria, Belarus, Canada, Colombia, Cuba, the Czech Republic, Denmark, Estonia, Greece, Guatemala, Hungary, the Democratic Republic of Korea, Monaco, Papua New Guinea, Portugal, Romania, the Slovak Republic, Switzerland, Turkey, and Venezuela. These parties are obligated to use Antarctica for peaceful purposes only. Any measures of a military nature, including testing of any type of weapons, are prohibited; any nuclear explosions in Antarctica and the disposal there of radioactive waste material are prohibited.[29]
CRITICAL ANALYSIS
The Antarctic Treaty of 1959, was created to further peaceful use of the land in the interest of the entire mankind to avoid any international dispute in antarctic continent. It was opined to be used for scientific researches and experiments which would ensure better life for the entire human race. The first threat to the treaty evolves around the claim of the claimant and non-claimant governments with respect to the access to the possible offshore hydrocarbon resource within the continent. The United Nations Convention on the Law of the Sea of 1982, was a regulatory measure to secure the access of the states to the undiscovered south pole. Article 76 of the convention provides a legal sanctity to the coastal states to gain sovereignty access over the undiscovered offshore hydrocarbon resources. In the Limits of the Continental Shelf Convention, the claimant states were to make submission with respect to the geographical shelf claims in Antarctic. Most of the submission made by the claimant states was either inclusive of others geographical limits or of the Continental Peninsula, which is beyond the purview of access. States like United Kingdom, Argentina, Norway, Chile, New Zealand, Australia, France and others either gave arbitrary submission or they gave partial submission. The increased in the number of scientific experiments is threatening the flora and fauna of the region. The chemicals used and the waste produced are not dumped properly in any scientific manner.
In the present time, there is a hue and cry in the commercial market for the the products produced from the Antarctic genetic. Many of the international entities are devolving lot of financial resources in it and is creating a huge market for Antarctic products.
The biggest concern of the present time is the rising temperature of the all the worlds region, the temperature has shown a significant change after the Antarctic treaty. By 2002, the temperature in the Antarctic region increased by 3°C, which is 10 times faster than the rest of the world[30].
CONCLUSION
The Antarctic Treaty has been a unique piece of legislation connecting the entire world for more than 50 years now. This multilateral instrument is simple yet significant in the field of public international law. With the success of this treaty seven original treaties have been further enacted and enforced. Moreover, this treaty has also demonstrated considerable adaptability and resiliency as it evolved from a single instrument into a robust regional regime containing four new instruments since its inception: the 1964 Agreed Measures for the Protection of Flora and Fauna[31], the 1972 Convention on the Conservation of Antarctic Seals[32], the 1980 Convention on the Conservation of Antarctic Marine Living Resources
(CCAMLR),[33] and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Environmental Protocol).[34] However, there are certain criticism over this treaty as stated in the earlier section on the basis of its operations but, this does not deny the basic premise that the legislation is a welfare legislation. Thus,
Antarctica is a natural reserve, devoted to peace and science!
[1]Dr. Thomas Axworthy, Ryan Dean, A Scan of Existing Arms Control Treaties with Lessons Learned, Inter Action Council, available at, <http://interactioncouncil.org/scan-existing-arms-control-treaties-lessons-learned>
[2]Gordon Elliott Fogg, A History of Antarctic Science, available at, < https://books.google.co.in/books?id=bQoK4XdQn2cC&pg=PA387&lpg=PA387&dq=lessons+learnt+from+antarctic+treaty&source=bl&ots=roYJJuATl4&sig=NBKe1R6WzXLKx9BcfPMy7oVituE&hl=en&sa=X&ved=0CE0Q6AEwCGoVChMIo83JnuyvxwIVBASOCh0J2QAj#v=onepage&q=lessons%20learnt%20from%20antarctic%20treaty&f=false>
[3]Suzanne Lalonde,International Law and Politics of the Arctic Ocean: Essays, available at,<https://books.google.co.in/books?id=jdkuBgAAQBAJ&pg=PA87&lpg=PA87&dq=lessons+learnt+from+antarctic+treaty&source=bl&ots=N8sFa2idrY&sig=EHaW0Vf-TOXogK18of_sDkrafjQ&hl=en&sa=X&ved=0CFAQ6AEwCWoVChMIo83JnuyvxwIVBASOCh0J2QAj#v=onepage&q=lessons%20learnt%20from%20antarctic%20treaty&f=false>
[4]Antarctic Treaty System, available at, < http://www.scar.org/antarctic-treaty-system>
[5]Antarctic Treaty System, atomicarchieve.com, available at,
< http://www.atomicarchive.com/Treaties/Treaty1.shtml>
[6]Evolution of the Antarctic Treaty System, Australian Government, available at, <http://www.antarctica.gov.au/about-us/publications/australian-antarctic-magazine/2011-2015/issue-22-2012/antarctic-treaty/evolution-of-the-antarctic-treaty-system>
[7] Article 1 of the Antarctic Treaty, The Antarctic Treaty, History, available at,
< http://www.doc.ic.ac.uk/~kpt/terraquest/va/history/treaty.html>
[8] Article 2 of the Antarctic Treaty, Gillian Triggs, The Antarctic Treaty System: A Model of Legal Creativity and Cooperation, available at,< http://www.atsummit50.org/media/book-8.pdf>
[9] Article 3 of the Antarctic Treaty, Antarctic Treaty System, available at,
< http://www.state.gov/t/avc/trty/193967.htm>
[10] Article 4 of the Antarctic Treaty, Reisman, W. Michael, “The Cult of Custom in the Late 20th Century” (1987). Faculty Scholarship Series. Paper 732. <http://digitalcommons.law.yale.edu/fss_papers/732>
[11] Article 5 of the Antarctic Treaty, Jennifer Richer, How to Read about the Science, The Atlantic, available at, <http://www.theatlantic.com/health/archive/2013/12/how-to-read-about-science/281855/>
[12] Article 6 of the Antarctic Treaty, The North Atlantic Treaty Organization Parliamentarians’ Conference available at, < http://www.hansardsociety.org.uk/wp-content/uploads/2012/10/The-North-Atlantic-Treaty-Organization-Parliamentarians-Conference-1955-1959-1960.pdf>
[13] Article 7 of the Antarctic Treaty, The Atlantic Treaty, British Atlantic Survey, available at,
< https://www.bas.ac.uk/about/antarctica/the-antarctic-treaty/the-antarctic-treaty-1959/>
[14] Article 8 of the Antarctic Treaty, The Atlantic Treaty, Britannica, available at,
< http://www.britannica.com/event/Antarctic-Treaty>
[15] Article 9 of the Antarctic Treaty, the Atlantic Treaty, NTI Building a safer world, available at, < http://www.nti.org/treaties-and-regimes/antarctic-treaty/>
[16] Article 10 of the Antarctic Treaty, The Antarctic Treaty, History, available at,
< http://www.doc.ic.ac.uk/~kpt/terraquest/va/history/treaty.html>
[17] Article 11 of the Antarctic Treaty, Antarctic Treaty System, available at,
< http://www.state.gov/t/avc/trty/193967.htm>
[18] Article 12 of the Antarctic Treaty, Reisman, W. Michael, “The Cult of Custom in the Late 20th Century” (1987). Faculty Scholarship Series. Paper 732. <http://digitalcommons.law.yale.edu/fss_papers/732>
[18] Article 5 of the Antarctic Treaty, Jennifer Richer, How to Read about the Science, The Atlantic, available at, <http://www.theatlantic.com/health/archive/2013/12/how-to-read-about-science/281855/>
[19] Article 13 of the Antarctic Treaty, Antarctic Treaty System, available at,
< http://www.state.gov/t/avc/trty/193967.htm>
[20] Article 14 of the Antarctic Treaty, Gillian Triggs, The Antarctic Treaty System: A Model of Legal Creativity and Cooperation, available at, <http://www.atsummit50.org/media/book-8.pdf>
[21]Lawrence M. Friedman, Social Welfare Legislation: An Introduction, Stanford Law Review, Vol. 21, No. 2 (Jan., 1969), pp. 217-247, avaialble at, <http://www.jstor.org/stable/1227652>
[22] Ibid
[23] Supra note 21
[24]Scott Davidson, Feeling the heat of Antarctic Treaty System available at, <http://www.anta.canterbury.ac.nz/documents/GCAS_10/Projects/Scott_Davidson.pdf>
[25]Antarctic Treaty System, National Science Foundation, available at, < http://www.nsf.gov/geo/plr/antarct/anttrty.jsp>
[26]John E. Noyes, The Common Heritage of Mankind: Past, Present, and Future, 40 DENV. J. INT’L L. & POL’Y 447 (2012)
[27]Antarctic Treaty System, atomicarchieve.com, available at,
< http://www.atomicarchive.com/Treaties/Treaty1.shtml>
[28] Guest Editorial-1959 Antarctic Treaty: reflecting on the 50th Anniversary of a landmark agreement, available at, < http://onlinelibrary.wiley.com/doi/10.1111/j.1751-8369.2010.00163.x/abstract>
[29] Supra note 25
[30] Joyner Christopher C, Potential Challenges to the Antarctic Treaty<http://www.atsummit50.org/media/book-15.pdf>
[31] “Recommendation III-VIII,” approved June 2, 1964, entered into force November 1, 1982, 17 UST 996, TIAS No. 6058 (1965), as modified in 24 UST 992, TIAS No. 7692 (1973),. The Agreed Measures were superseded by Annex II to the 1991 Protocol on Environmental Protection to the Antarctic Treaty when the protocol entered into force in 1998.
[32] Done in London 1 June 1972, entered into force 11 March 1978, 29 UST 441, TIAS No. 8826.
[33] Done in Canberra on 20 May 1980, entered into force 7 April 1982, 1329 UNTS 47
[34] “Protocol on Environmental Protection to the Antarctic Treaty,” Doc. XI ATSCM/2, 21 June 1991, adopted 4 October 1991, entered into force 14 January 1998.
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