Foreign Relations of the United States, 1958–1960, United Nations and General International Matters, Volume II

284. Memorandum From the Director of the Antarctica Staff (Owen) to the Deputy Assistant Secretary of State for International Organization Affairs (Walmsley)¹

Washington, March 13, 1959.

SUBJECT

• Your Request for a Rundown of the Points of Agreement and Disagreement in Current 12-Power Preparatory Talks on Antarctica

This summary follows the order of the articles of the draft working paper (copy attached²) distributed at the November 18, 1958, meeting, which covers roughly (but in different order) the list of topics tentatively agreed by the working group (October 8, 1959³) for discussion at the conference.

At all times during the talks all representatives have made it clear that their proposals and the views they express are preliminary and not necessarily approved by their governments. References to countries by name in connection with positions described below would be read with this in mind. The positions described are based on what the representatives have indicated to date at the regular meetings and in discussions on the side.

Article I “Peaceful use only”

There is unanimous agreement to have a provision that Antarctica be used for peaceful purposes only.

The Soviet representative wishes to elaborate on this with an express prohibition of “military bases,” “maneuvers,” and “weapons testing.” In principle, there is no objection to this, but it does involve close scrutiny of wording in order to avoid ambiguities which might be exploited against us.

Also, we favor the express provision that the principle of Article I does not preclude use of military equipment and personnel for peaceful purposes. This the Soviets wish to delete, as do the Australians. On strict logic alone this provision may seem unnecessary since the peaceful purpose of an activity is not determined by the military or civilian administrative category of persons and things. We have made that clear. The Soviets, whose Antarctic operation is administratively civilian, presumably seek to embarrass us since at present we are not organized for carrying out our program with other than Department of Defense logistic support. The Australians, anxious to keep the Soviet operation civilian, would like not only to delete this provision but even to write in a commitment to make all operations civilian. The Argentines and Chileans, whose operations are almost entirely conducted by their military are strongly against this, and practically all others also agree with us, including those who have purely “civilian” operations now (Norway, France).

Article II “Freedom of Scientific Research in Antarctica”

There is unanimous agreement that there should be freedom of scientific research in Antarctica. The Soviets have proposed language closer to that of our May 2 note: “The citizens’ organizations and governments of all countries have freedom of scientific research, etc.” The United Kingdom and Australia do not find this objectionable. Argentina, Chile, New Zealand and others prefer the more general language of the working draft. Key words in the draft are “in conformity with the provisions of the present treaty” (cf. Article VIII, infra). The Soviets have not insisted on their deletion.

Article III “Scientific cooperation”

There is unanimous agreement that there shall be international cooperation for scientific research in Antarctica. Our draft enumerates some specific types of cooperation (e.g., exchange of information and scientists) with the saving clause “to the greatest extent feasible and practical.” There have been several proposals concerning the language, most of which are not of great substantive importance. We ourselves wish to improve the language of the working paper. The U.S.S.R. and the U.K. would like to add something about cooperation with international scientific organizations, the former wishing to mention SCAR, which we do not favor. The Norwegian has made known his concern that inflexible obligations to cooperate may be a burden to small countries.

Article IV “Status quo as to claims” or “setting aside political considerations”

Nine representatives have indicated agreement to the inclusion of this article as is. The French, who earlier had resisted this draft somewhat stubbornly, now merely have some changes in language, mainly because the draft is not easily translated into French. The Argentines, acting on instructions which reflect a preoccupation with sovereignty-consciousness at home with some lack of appreciation of the broader international issues, have reserved their position on one portion of the draft.

The purpose of the article is to set aside the question of territorial claims and consequent political rivalry in order to facilitate scientific cooperation. The Soviets agree, but maintain that the best way of setting this problem aside is by not mentioning it in the treaty at all. The actual reason for Soviet objection probably centers on the prohibition of the assertion of new claims—alongside the express “non-renunciation” of claims already asserted. (The Soviet representative has explicitly agreed to the inclusion of the topic “Provisions to ensure that political considerations do not prejudice the peaceful and constructive objectives of the treaty” in the agenda of the conference.) Our reason for insisting on Article IV as a whole is that we know it is a sine qua non for the claimant states. The remaining nonclaimants (Belgium, South Africa, Japan) also support it.

Article V “Jurisdiction”

The subject matter of this article is the establishment of a minimum set of rules on jurisdiction over persons. Although we included this in the draft, we have stated we would willingly transfer this problem to Article VII, namely, as one to be considered at future meetings of the signatories’ representatives, a view with which the Argentines and Chileans agree. The Australians, British and Japanese have declared their interest in retaining a positive provision of this sort. The problem is not of great political importance, but it is a very complicated legal one and to thresh out a satisfactory formula at the conference would only hold up the treaty as a whole.

Article VI “Inspection”

Most representatives have agreed to this “inspection” article. The Soviets have said they agree to it “in principle,” but maintain that the substance of its provisions should not be discussed at these preparatory talks but only at the conference itself where “experts” will attend. The Argentines have expressed some misgivings toward the article based once again on their Government’s emphasis on sovereignty over their sector, to the exclusion of greater problems.

The basic idea of our working draft Article VI is to avoid the difficulties inherent in setting up an international body to conduct inspection, i.e.: (1) the dilemma that the Soviets would not accept a body making decisions by less than unanimous voting, which would make it useless, and (2) the strong opposition to anything in the nature of a supergovernment or international control which is shared by most, if not all, claimant countries. That is why our Article VI in essence provides quite simply that each party can freely inspect all installations of others and that there shall be free aerial inspection everywhere at all times. This, of course, required careful drafting.

The U.K. has proposed an unoriginal approach, namely, to set up an “International Committee of Control” which would actually manage this inspection, taking decisions by two-thirds majority vote. We believe that the U.K. proposal is one the Soviets would not buy without a built-in veto. Moreover, Chile and Argentina have declared they would drop out of the treaty if the U.K. proposal were to prevail since it tends to set up a supergovernment. New Zealand, Australia, Japan, Norway and South Africa have indicated preference for our draft. Also, the U.K. proposal has very many objectionable details, in its present form, aside from this major difficulty. In the face of this opposition, the U.K. representative explains he is acting under instructions. It may be they believe it best to hold out for a two-thirds majority managed inspection system as a bargaining position for other articles, or even other problems. But they have not said so to us.

There is no evidence that the Soviets have not understood that the intention of our draft is that the all-important inspection provision be complete in the treaty itself and not dependent on “administrative measures” to be worked out subsequently under Article VII, q.v., with its obvious veto provision. They have said, so far, that the details of an inspection system should be worked out at the conference rather than during the preparatory talks, but they have not said this should be done after the treaty is signed. Presumably they are scrutinizing Article VI for loopholes if, in fact, the principle of inspection, insofar as Antarctica is concerned, is really something they consider to be contrary to the interests of communism. The strategic value of Antarctica is quite possibly as much of an unknown to them as it is to us. It should also be borne in mind that in trying to close all loopholes to prevent Soviet evasion of inspection, we should not provide them with a nuisance value in inspecting us.

Article VII “Administrative Maneuvers”

No representative has objected to a provision for periodic meetings of the signatories’ representatives to recommend “measures” for adoption by the governments. This article is the remnant of earlier ideas for an “Antarctic Organization,” favored by the British, from which the concept of the future “adoption” of measures by a group of representatives has been eliminated—thus obviating the problem of majority vote or unanimity-and-veto. Earlier concepts of the treaty envisaged adoption at these future meetings of “administrative measures” to assure effective implementation of the treaty, such as an inspection system (for Article I), and procedures for cooperation in science, etc. The present draft has separate full-fledged treaty articles on these points (Articles VI and III) so that they are “built in” and do not depend on future agreement. The enumeration, not exhaustive, in the present version of Article VII of the kinds of measures which the periodic meetings would discuss and recommend could be enlarged or reduced. (The inclusion of any item may facilitate its discussion in the future, if we so wish, but does not, of course, either assure or compel the discussion of such item or the production of recommendations pertinent thereto.)

The Chileans wish to provide in this enumeration for the eventual creation of an “International Institute of Antarctic Research” as a device whereby non-signatories would become associated with the treaty and declare their acceptance of the treaty principles, a problem which is the subject matter of Article VIII, infra. We, New Zealand and others have pointed out the possibility of duplication with SCAR, and other problems with the scientific community, that this Chilean proposal invites.

The U.K., as a corollary to their substitute proposal for Article VI (their Control Committee), wish to omit measures related to the “peaceful use” provision, i.e., inspection, from the matters listed in Article VIII, since their Control Committee would purportedly do all that, leaving only the business of scientific cooperation and administrative matters to the meetings under Article VII. New Zealand, Australia, Norway, Argentina, Chile and we, have pointed out that this tends to a proliferation of groups dealing with Antarctica.

Article VIII “Relationship of treaty to nonparties”

While there has not been full opportunity to date to hear an expression of the Soviet position in this regard (the discussion was incomplete), all other representatives agree that there should be some provision for “extending”—insofar as possible—the treaty obligations to countries other than the twelve, and that this might be achieved by compelling, in practice, or inducing observance of these obligations by these other countries, or such of them as may eventually engage in Antarctic activities. It is also agreed that this should be done in a form that avoids the appearance of seeking to impose obligations on nonparties and that should, on the contrary, have a “public relations” appeal as regards the rest of the evergrowing family of nations, especially if pressure for a UN take-over of Antarctica discussions is to be averted.

With this in mind our draft Article VIII states that administrative measures which come into existence pursuant to Article VII will apply without discrimination to nonparties so long as they respect the principles of the treaty. This leaves the inference that there shall be discrimination against the nonparties who do not respect the said principles, which include, of course, “peaceful use only,” exchange of scientific information, no new claims, and so forth. Actually, such administrative measures as are envisaged as more likely to impose restrictions than to confer benefits.

The Article must be read in conjunction with Article II where freedom of scientific investigation is recognized (or conceded insofar as claimant states are concerned) for the benefit of all others “in conformity with the provisions of the present treaty.” This means that this freedom shall not extend to those who do not observe the principles of the treaty. The proposition contained in Article VIII that certain rules generated pursuant to the treaty will be applied to nonparties, provided they observe the treaty principles, might logically have been appended to Article II. But it would seem to be inappropriate for the treaty among twelve parties to ordain that a condition (observance of treaty principles) is imposed on the exercise of certain activities (research in Antarctica) which the nonclaimant states, such as we in particular, who recognize no claims, must admit they already have as a matter of preexistent right, since all countries are now free to engage in scientific and any other activities in Antarctica, if, as we maintain, no one has sovereignty there.

While a considerable majority of representatives accept our draft Article VIII, there is no general agreement as to what also should be set forth in the treaty regarding the problem of the treaty’s relationship to countries other than the twelve. However; (1) a bare majority, U.S., New Zealand, South Africa, Norway, presumably Argentina and Belgium, and probably France, agree that our Article VIII is sufficient; (2) Chile agrees with the Article but also wants its provision for a future scientific institute in addition thereto (see Article VII, supra); (3) Japan and Australia, in addition to Article VIII, want a qualitatively listed accession clause; and (4) the U.S.S.R. agrees to our Article VIII but wants an unlimited accession clause as well. Both the Japanese and Australians at one time asserted that an accession clause would dispense with this Article, but they seem to have understood that with or without accession there will always be nonparties, namely, those who neither sign nor accede.

We, the British, and all except Australia, Japan and the Soviets, oppose an accession clause because there is no justifiable reason for states not having an active interest in Antarctica to participate in this arrangement and it would merely open the door to certain countries without any such interest at all or with only a political interest, to meddle. Claimant states, especially the U.K., Chile, Argentina, New Zealand and France are particularly sensitive on this point and rest their case on the historical fact of their efforts and sacrifices in Antarctica, which, they argue, gives them, together with nonclaimants who have been active there, the right to make the rules. All opponents of accession point out that there is no need for it because the treaty does not seek to deny anything to other states. In fact it guarantees them the benefit of free scientific investigation there which, so far as the claimant states are concerned, they do not necessarily now have.

The Japanese agree that an accession clause is not desirable per se but that it is the only way to avert: (1) criticism and complaints on the part of other countries that they are being “left out” of something, and (2) the eventual injection of the United Nations into the problem. Under the Japanese accession formula, moreover, only members of the United Nations could be admitted and then only by vote of the original twelve signers. The Australians, from the beginning, have favored an accession clause, likewise, in part, to avoid criticism that the treaty is “monopolistic,” but mainly because they believe that an accession clause is the best manner whereby other states can be, as it were, compelled to accept all the treaty obligations if they have an interest in Antarctica. Yet, an accession clause, while creating the problem of undesirable meddling, would not provide a means to “bind” those who neither sign nor accede.

On the other hand the U.K., as a solution to the problem, has proposed a separate “Protocol” which it believes can be a substitute for this article. This would, in effect, be a document open for signature by countries other than the twelve who would thereby proclaim voluntarily, but unequivocally, their acceptance of the principles of the treaty. The “Protocol” of the British has not met with approval of anyone. Its obvious defect is that it is extremely unlikely that any country would sign it, since it amounts to voluntarily assuming obligations in exchange for the dubious privilege of becoming a kind of second-class party to the whole arrangement. A further technical defect of the proposal is that even if a member of important other countries were to adhere to this Protocol, the result would be that these countries would have a treaty with each other but not with the twelve parties to the main treaty, and they could modify their own treaty as they pleased.

Article IX “Zone of Application”

The purpose of this Article is to delimit the zone of application of the treaty. Although in our draft it was left incomplete in order to prompt discussion, we have indicated that we favor that this zone include all of the area south of Latitude 60° S. but excluding the high seas. The issues of disagreement here are whether to extend the zone of application to (1) large areas of the sea surrounding Antarctica and (2) to the airspace above Antarctica.

Against inclusion of the sea are: U.S., U.K., New Zealand, South Africa, Norway, presumably Belgium, and, a recent convert, Chile. For inclusion of the sea south of 60° S: Argentina and Australia. (The coastline is mostly nearer to 70° S.) The Soviets have not spoken on this point recently. In much earlier discussion of the matter they appeared to favor inclusion of the sea. (They proposed to limit the zone by the line of the “Antarctic Convergence” which extends to 50° or more.) The Japanese appear not to have made up their minds on this yet. The French have proposed working out a line by metes and bounds which would include a minimum area of sea.

The advantages of extending the “peaceful use only” provision to the surrounding ocean appear to be well outweighed by the disadvantage of limiting in any way our own right to do what we please in that portion of the high seas. Also, the efficacy of inspection provisions as regards the sea is not only questionable but poses grave problems of interferences with the freedom of the seas. There may, however, be good reason to include within the zone the waters a short distance from the land or fixed ice. The problem is further complicated by the fact that claimant states presumably maintain that there are “territorial waters” in Antarctica as anywhere else, to which they certainly wish the “peaceful uses only” provision to apply; whereas we, for instance, presumably consider all waters in the area to have the legal status of “high seas” since we deny there is any coastal sovereign.

Aside from “peaceful use only,” the applicability of the other treaty provisions to sea areas is unnecessary and undesirable. These considerations may lead Australia and Argentina, as they already have Chile, to come around to the formula we favor.

The injection of airspace into this problem (proposed by Australia and Argentina) is very recent. So far, U.K., New Zealand, Japan, Chile and we have objected. Discussion of this has only just begun. It involves even more acutely the problems involved in inclusion of sea areas in the zone of application.

Article X “Settlement of Disputes”

This is a provision for peaceful settlement of disputes arising under the Treaty by (1) consultation among all the signatories, (2) the usual methods of settlement, and (3) the ICJ. This has not yet been discussed. It is expected that the U.S.S.R. and Argentina will not accept compulsory submission to the ICJ.

Article XI “Revision”

This draft article has not been distributed at the 12-power meetings. The British dislike it. We have no great attachment to it.

Article XII “Ratification, Entry into Force”

This is a procedural article. Of significance is our proposal of entry into force only upon ratification by all twelve. If the U.S.S.R. does not ratify there is little reason for this treaty. Possibly some other treaty or treaties and arrangements would then be desirable. Aside from this, the article has only procedural significance. However, the various proposals for an accession clause, already discussed in connection with Article VIII, would probably be debated in connection with the subject matter of this Article XII.

This memorandum has not been seen by the Special Adviser on Antarctica, Ambassador Daniels, temporarily absent, who has conducted these negotiations. I believe he would agree with all statements herein.

1. Source: Department of State, Central Files, 702.022/3–1359. Secret. Copies were also sent to AF, ARA, EUR, FE, G, H, INR, L, S/AE, S/P, and S/S A.
2. Not attached, but a copy of this paper is attached to the memorandum of the 26th informal meeting, November 11, 1958; ibid., 702.022/10–1858.
3. A copy of the list of topics is attached to the memorandum of the 20th informal meeting, October 8; ibid., 702.022/10–858.