Jacek MACHOWSKI Humanistic University in Pułtusk POLAND

POLISH POLAR STUDIES XXVI Polar Symposium

/ft Lublin, June 1999

„If an olive branch is to be: carried to the world from the icy Antarctic barren, though this might sound para-doxical, it is as good a place for such an important mis-sion as any other place on our globe. "*

FORTY YEARS OF THE ANTARCTIC TREATY 40 LAT TRAKTATU ANTARKTYCZNEGO

On 1 s t December 1999 the Antarctic Treaty will have been in operation for forty years, thus presenting us with a good occasion for a fair appraisal. During that pe-riod it has often been described by some, as a perfect legal instrument of interna-tional cooperation and coexistence, while others considered it as a. faulty docu-ment originating from a corrupt Cold War compromise, leading to international imbalance and discrimination. As usual, the truth lies somewhere in between; let us therefore rely on facts.

"ANTARCTIC CONSTITUTION"

It is amazing, how such, a politically and legally imperfect document, like the 1959 Washington Treaty, was able not only to survive for almost half a century, which itself is a success, but even more, to provide effectively the framework for international scientific activity and a firm basis for political stability in Antarctica?

After all, the Antarctic Treaty did not solve any of the crucial controversial problems, "freezing" them only by means of that worst of diplomatic formula. It has neither settled the basic political problem of territorial claims in Antarctica, nor decided clearly on the status of that part of the world. It did not solve any of the fundamental legal issues there, namely that of sovereignty and jurisdiction. It did not even attempt to deal with such important economic problems like the ex-

* From the statement by the representative of the Republic of South Africa at the signing ceremony of the Antarctic Treaty in the Washington D.C. on 1 December 1959, Washington Post, 2 XII 1959.

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ploitation of Antarctic living and mineral resources or the protection of the unique Antarctic environment. Studying the provisions of that brief and partly inefficient instrument, one can hardly resist the impression that its sole aim, emphasized anyway in its Preamble, was to save Antarctica for peace and science and to pro-tect it from international discord and the dangers of atomic warfare. That was in-deed the case and it was the maximum attainable in these earliest days of the Cold War thaw. Meanwhile, paradoxically all these weaknesses of the Antarctic Treaty have turned into its power. Soon that Treaty became an informal "constitu-tion" of Antarctica, the only part of the world put beyond the sovereignty and juris-diction of states and enjoying de facto and unique historically and globally sui generis legal status.*

But before it happened, the Antarctic Treaty has undergone during the last four decades an unusual evolution, marked by a series of ups and downs, tossed on the stormy waves of international politics. At the same time it has displayed an amaz-ing ability to survival and adaptation to the fast changing international condi-tions, as well as the aptitude to apply unconventional legal methods.

The periodical Consultative Meetings of the Antarctic Treaty Parties, provided by its Article IX, have soon turned into an informal "parliament" and "govern-ment," acting on the basis, of the mentioned imperfect "constitution." The results of that customary legal machinery are impressive, to mention only more than 200 adopted recommendations, measures, decisions and resolutions, covering a wide spectrum of most vital Antarctic problems, such as conservation of fauna and flo-ra, historic sites and monuments, scientific research and data, polar logistics, tele-communications and meteorology, tourism, protection of the environment, natu-ral and mineral resources, safety of operations, liability etc.** From their very first meeting, the Antarctic Treaty Consultative Parties assumed the task of improving the insufficiencies and of filling the gaps of the faulty Treaty, by means of resolu-tions and agreements. Conventions on conservation of Antarctic seals (1972), on conservation of Antarctic living resources (1980) and on exploitation of Antarctic mineral resources (1988), although concluded outside the Antarctic Treaty, were initiated by its Parties and were linked with it by coordination clauses. At present, they form the corner stone of the informal Antarctic Treaty System (ATS).

That legislative process has culminated in 1991 with the adoption of the Proto-col on Environmental Protection to the Antarctic Treaty, which was an angry re-sponse to the environmentalists to the signing of the shelved Minerals Conven-tion.*** In result, today all the mentioned legal instruments form together a cohe-rent and comprehensive body: corpus iuris Antarcticae. It is operating on the basis of

* Machowski J. 1977: The Status of Antarctica in the light of International Law (translated from Polish) ed. CINTE, Warsaw, p. 150.

** Antarctic Treaty. Handbook of Measures in furtherance of the Principles and Objectives of the An-tarctic Treaty. First Edition, September 1977. *** Machowski J. 1992: The Antarctic environmental legal regime. Polish Polar Research, vol. 13, 3-4:

183-214.

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universal international law and emerging Antarctic customary law, which regulate in an almost perfect manner all the, scientific, political and legal activities within the Treaty Area which covers a vast part of our globe.

The mentioned Environmental Protocol is not only regulating an important sphere of problems omitted or neglected in the Antarctic Treaty but is also, point-ing to expedient legal methods for the future evolution of that diplomatic instru-ment by means of protocols, annexes etc. That seems particularly timely after the Contracting Parties did not yield to the temptation to seize the opportunity of re-view which offered to them in 1991 by Article XII par. 2 of the Antarctic Treaty. Aware that the Treaty review procedure might open Pandora's box filled with reci-procal claims, demands and animosities, they declined chosing it and for the sake of the Treaty opted for other legal means to improve it.

That choice seems very wise particularly in the light of the numerous attempts on the Antarctic Treaty's integrity which occurred during the four decades of its operation. They were caused by tensions existing both between the claimant and non-claimant parties to the Treaty, as well as the Antarctic Treaty states and non-parties to the Treaty.

Even though Antarctica is of obvious climatic and environmental importance to the world as a whole the ATS is not universal. The hermetic Consultative Meet-ings, limited for years to the 12 original signatories of the Antarctic Treaty, have raised sharp critics and evoked demands from Third World countries for a new in-ternational order on Antarctica, culminating in 1983 in the submission of the "An-tarctic Question" to the United Nations. As it stands today, the Antarctic Treaty ef-fectively freezes all territorial claims and counterclaims without necessarily resolv-ing the potential conflicts between claimants and non-claimants. It also has suc-cessfully resisted the pressure of the Third World countries by half-opening to them the door to the exclusive "Antarctic Club," as the Consultative Meetings were nicknamed. That door was in 1977 forced by the stubborn position of Poland*, lead-ing to a considerable growth of the number of Consultative Parties, now num-bering 27 states.

ASSETS AND LIABILITIES

Let us now have a look at the balance of successes and failures with which the ATS enters the fifth decade of its existence projected into 21s t century.

As a multilateral accord, the Antarctic Treaty is given particularly high marks for its success in sustaining non-militarization, denuclarization, international co-operation and peace keeping within the Treaty Area, thus creating, favourable conditions for peaceful activities there.

* Machowski J. 1991: Poland's Policies Toward Antarctica. German Yearbook of International Law, vol. 34: 63-91.

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On the side of successes the ATS can be credited with two major issues: the or-ganization of scientific investigations in Antarctica and the protection of its envi-ronment.

International cooperation in scientific investigations in Antarctica based on free-dom of scientific research* is a major purpose of the Treaty (Preamble and Article II). Scientific activities, as relatively non-controversial, contributed considerably to the defusion of political conflicts in Antarctica. The Scientific Committee on Antarctic Research (SCAR) established in 1958 as a body of the International Council of Scientific Unions became the principal partner of the ATS in the implementation of its scientific tasks.

The preservation and protection of the Antarctic environment - as distinct from conservation of living resources referred casually in Article IX par. If - was not even mentioned in the 1959 Treaty. That unfortunate omission was noticed by the Consultative Parties just in time to rectify it. In the following years concern for Antarctic environment has prevailed in their activities made evident in the con-tents of the majority of some 200 recommendations pertaining to the protection of environment and its ecosystem, culminating in the conclusion in 1991 of the Pro-tocol on Environmental Protection.

The Antarctie Minerals Conventian, negotiated for seven years since 1982 and opened for signature in 1988, turned into a major legal success and no less great political failure. Nonetheless, its merits lie in the discovery of new areas of threats to the Antarctic environment and provocation of the drafting of the 1991 Protocol on Environmental Protection.

SCIENCE AND DIPLOMACY

At this juncture returns the fundamental question put at the very outcome: how the ATS, acting on the basis of an international legal instrument so defective as the Antarctic Treaty, was able not only to survive the consecutive political whir-ligigs but to act effectively for 40 years, without even creating a solid pragmatic machinery, for instance in the form of an international organization or at least a permanent secretariat? The answer seems to be found in the exceptionally great contribution of scientists to the foundation and functioning of the ATS.

To the scientists is Antarctica a gigantic and unique laboratory, the place and object of their investigations. Thus, when just after World War II it became a range of military manoeuvres and a ground of political strifes, threatening the trans-formation of the Antarctic into the second after the Arctic "coldest front of the Cold War," scientists all over the world have taken up in their own countries and at international forum a common resolute counteraction. Their efforts were soon

* Machowski J. 1990: The right to freedom of research under the Antarctic Treaty System. Polish Po-lar Research, vol. 11, 419-434.

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crowned with successes of the III International Geophysical Year 1957/58 which resulted directly in the conclusion in 1959 of the Antarctic Treaty (Preamble and Article II).

Although the share of scientists - at least in the capacity of experts - is in the formation of contemporary international relations generally meaningful, their par-ticular position and role in the ATS is dominant, with the considerable support of SCAR. As active and influential members of the delegations of their governments to Consultative Meetings, the scientists exert a positive influence on their proceed-ings and results, appeasing with their authority and readiness to compromise, the acuteness of political controversies. Because it must always be remembered that the Antarctic Treaty is first and foremost a diplomatic instrument of international policy. But thanks to the active and positive role played in the ATS by scientists, one can looc ahead with optimism to its future.

TOWARDS THE NEW AGE

During the second part of the XX century, Antarctica protected by the umbrella of' the 1959 Washington Treaty, has developed under the impact of three factors: science, politics and economy. In the last decade, the 1991 Environmental Protocol has added to that triad a new element: ecology. Should the trends which prevail now at the turn of centuries continue, one can safely forecast that in the XXI cen-tury the three traditional leading factors in Antarctica, will become overcast by ecology. That might result in the reopening of the dispute on check and balance of the fundamental factors shaping Antarctic policies. That controversy already assum-ed a dramatic form after the signing of the Antarctic Mineral Convention. Such a scenario would raise the fundamental question of the character of interrelation-ships between the four mentioned factors: whether they are antagonistic of ami-cable and whether one of them can prevail over the other?

Since the ecological requirements are in their very nature of restrictive charac-ter, the problem of the degree of limitations imposed on Antarctic science, econo-my and politics by ecology is arising.

The problem of balance between the requirements of ecology and science is re-gulated by the principle of freedom of scientific investigation formulated in Article II of the Antarctic Treaty. The majority of scientists and polar explorers is rejecting allegations about the supposed antagonistic relations between the freedom of scientific research and the protection of' the environment. They emphasize the complementary character of these two legal principles in Antarctic activities. That is why in the growing number of Antarctic protected areas and sites the scientists do not see a limitation of their right to freedom of research, but on the contrary, an effective means to protect the objects of their scientific investigations.

Similarly, in a non-antagonistic way the interrelations between economy and ecology can develop in Antarctica, even if the contrary could suggest the unfortu-

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nate fate of the Minerals Convention. The widely promoted policy of sustainable development which effectively is trying to compromise the economic and ecologi-cal requirement, is applicable also in Antarctica.

The importance of the ecological factor was emphasized at the conference of foreign ministers of the Consultative Parties on the protection of polar environ-ment , convened in January 1999 for the first t ime in history on the Antarctic con-tinent.

The recent developments in Antarctica pose new challenges also before Poland, where in the year 2000 the XXIV Meeting of the Antarctic Treaty Consultative Par-ties will take place for the first time.

STRESZCZENIE

Podpisany przed 40 laty Traktat Antarktyczny stworzył unikalny w skali historycznej i globalnej sy-stem prawnomiędzynarodowy (STA - System Traktatu Antarktycznego), wyłączający spod suweren-ności i jurysdykcji państw ogromny obszar naszej planety, obejmujący całą jedną część świata z konty-nentem Antarktydy, przekształcając go jednocześnie w strefę zdemilitaryzowaną i bezatomową. Rozcią-gając nad Antarktydą swój parasol ochronny. Traktat z 1959 roku stworzył tam sprzyjające warunki dla działalności pokojowej w szczególności zaś naukowej i gospodarczej. Pomimo swej politycznej i prawnej niedoskonałości, Traktat w sprawie Antarktyki od 40 lat reguluje skutecznie na tym ogromnym obsza-rze stosunki międzynarodowe, a stworzony na jego podstawie zwarty zespół norm prawnych zawartych w towarzyszących umowach międzynarodowych oraz zaleceniach, decyzjach i rezolucjach Spotkań Konsultacyjnych Stron Traktatu Antarktycznego stanowi dziś unikalny corpus iuris Antarcticae.

Przez ostatnie cztery dekady, STA miotany na burzliwych falach polityki światowej skutecznie opie-rał się zamachom na swoją tożsamość, pochodzącym zarówno ze Wschodu jak i Zachodu, jak też z Pół-nocy i z Południa, broniąc zasad przyjętych w 1959 r. w Traktacie Waszyngtońskim. Szczególną rolę w powołaniu i funkcjonowaniu STA odegrali uczeni i badacze polarni.

Przez całą drugą połowę XX wieku rozwój wydarzeń w Antarktyce przebiegał pod wpływem trzech czynników: nauki, polityki i ekonomii. Obecnie, u progu XXI wieku dołączył się do nich czwarty czyn-nik: ekologia, który zdaje sie zdominować stosunki w Antarktyce w nadchodzącym stuleciu.

Ten rozwój wydarzeń stawia nowe wyzwania również przed Polską, będącą od 1961 roku stroną Traktatu Antarktycznego i korzystającej od 1977 roku ze statusu konsultacyjnego STA. Przypadające na rok 2000 po raz pierwszy w Polsce XXIV Spotkanie Stron Traktatu Antarktycznego stanowi dla naszego kraju wyjątkową okazję dla potwierdzenia swojej nieprzerwanie aktywnej pozycji w STA.